DeLove REDD, Appellant v. BLYTHEVILLE SCHOOL DISTRICT #5, Appellee.
No. CV-14-530
Court of Appeals of Arkansas.
Oct. 29, 2014.
2014 Ark. App. 575
HARRISON and WYNNE, JJ., agree.
complaint via first-class mail marked “legal mail” to McMahan at the Tucker prison unit. McMahan testified that he never received such mail; Reynolds testified that she did in fact send McMahan such mail. The trial court believed Reynolds‘s testimony. However, the only document sent to McMahan at Tucker that was entered into evidence by DHS was a letter dated December 16, 2013. The letter, which indicates that it was hand delivered, states:
Pursuant to Rule 4 of the Arkansas Rules of Civil Procedure, you are herewith served the enclosed summons.
Please note that a hearing regarding Termination of Parental Rights has been scheduled for February 14, 2014, at 1:30 p.m., at the Washington County Courthouse, Juvenile Division. Your presence at such hearing is required.
The letter indicates that it was hand delivered, not mailed first-class mail with the notation of “legal mail.” Further, the letter indicates that only the summons was enclosed, not the petition for termination of parental rights. Service requirements are strictly construed and require exact compliance. Because DHS did not strictly comply with the service requirements for incarcerated individuals pursuant to Rule 4 of the Arkansas Rules of Civil Procedure, the trial court clearly erred in finding that service was proper and denying the motion to dismiss for lack of proper service.
DHS argues that McMahan was handed two summonses—one at the Washington County jail and another one from the warden of the Tucker prison unit. This argument, however, does not address the failure to comport with the service requirement that McMahan be sent a copy of the summons and complaint via first-class mail marked “legal mail.” Actual knowledge of a proceeding does not validate defective process. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996).
DHS further argues that McMahan‘s argument should be rejected because “it takes the ‘strict compliance’ doctrine in Arkansas to an extreme extent.” DHS contends that McMahan had the burden to produce the envelope marked “legal mail.” Such an argument defies logic, as McMahan testified that he never received such an envelope. It was DHS‘s burden, as the plaintiff, to demonstrate compliance with the service rules, not McMahan‘s burden. Brown, supra. DHS failed to prove that it had strictly complied with the service requirements for an incarcerated defendant—its own exhibit, the December 16, 2013 letter, directly contradicts Reynolds‘s testimony. Because the service requirements were not strictly complied with, the trial court clearly erred in denying McMahan‘s motion to dismiss the petition to terminate his parental rights.
Reversed and dismissed.
HARRISON and WYNNE, JJ., agree.
Worley, Wood & Vanish, P.A., by: Melissa Wood, for appellee.
ROBERT J. GLADWIN, Chief Judge.
This is an appeal from the Arkansas Workers’ Compensation Commission‘s February 13, 2014 opinion denying appellant DeLove Redd additional temporary-total-disability (TTD) benefits and permanent-disability benefits in excess of the seven-percent whole-body impairment already being paid to him. Redd appeals
Statement of Facts
Redd is sixty-two years old and has an eleventh-grade education. He began working for appellee Blytheville School District in 1982 as a custodian. During his almost thirty years of employment with the school district, Redd sustained several injuries, including a right-shoulder injury, a left-knee injury, and a back injury, all of which were accepted by the school district. Redd‘s most recent injury was sustained on August 16, 2011, as the result of a specific incident while helping a co-worker, Broderick Harris, lift a fifty-five-gallon drum into a large dumpster.
Redd was initially examined by Dr. James Russell, but he was subsequently referred to Dr. John Campbell, a neurosurgeon in Jonesboro, Arkansas. Following an MRI, Redd was diagnosed as having sustained a small central L4-L5 disc herniation, which was treated conservatively, without surgery.
Redd was released to return to work on February 22, 2012, with a twenty-pound lifting restriction, no bending and twisting at the same time, and no prolonged standing or sitting for more than two hours. On January 11, 2013, Dr. Campbell opined that Redd‘s only permanent restriction was not to lift over twenty pounds.
The school district made work available to Redd within the restrictions imposed by the doctors. He testified that when he returned to work, he missed many days because his back would begin bothering him. Redd retired at age sixty-two and began drawing both social-security retirement and retirement from the school district. He said that he takes Aleve “every now and then” for his back pain. Redd testified that the school district provided him with restricted-duty work at the same salary until he elected to take retirement in July 2012. Redd told the Commission, “If I worked for three days, they paid me for three days. They didn‘t lay me off. I was the one who elected to retire because I knew I couldn‘t do the work.”
James Williams testified that he worked as a plumber for the school district and that, after Redd was injured and returned to work, Redd was not able to do the types of work he had previously been doing. Williams said that the district placed Redd with him as Williams‘s helper, and that his work did not require heavy lifting. He opined that the school district was trying to protect Redd from heavy lifting by placing him with Williams.
Donald Jenkins, the maintenance supervisor for the school district, testified that once Redd was released with restrictions, work was made available within the restrictions imposed. Jenkins further stated that if Redd had not retired, work within Redd‘s physical restrictions would have continued to be provided.
Richard Atwill, the superintendent of the Blytheville School District, testified by telephonic deposition that Redd was provided assistance at all times following his return to work and that the school district always made work available within Redd‘s restrictions until his retirement on or about July 11, 2012. Atwill further stated that Redd was not considered an “at will” employee due to the school contract and public policy, maintaining that if Redd had not retired, he could have continued to work and receive the same hours and pay that he had received prior to the injury.
The administrative law judge (ALJ) found in pertinent part that Redd failed to prove by a preponderance of the evidence that he was entitled to additional TTD; that he failed to prove that he was entitled to permanent-partial-disability benefits in excess of the seven-percent whole-body
Statement of Law
We review decisions of the Commission by considering whether there is substantial evidence to support its decision. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Questions concerning the credibility of witnesses and the weight to be given their testimony are within the exclusive province of the Commission. Sivixay v. Danaher Tool Grp., 2009 Ark. App. 786, 359 S.W.3d 433. Further, we review the evidence and all reasonable inferences in the light most favorable to the Commission‘s findings and affirm if its findings are supported by substantial evidence. Id.
The wage-loss factor is the extent to which a compensable injury has affected the claimant‘s ability to earn a livelihood. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant‘s age, education, and work experience. Logan Cnty. v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005). Motivation, post-injury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss-disability benefits in excess of permanent-physical impairment. Henson v. Gen. Elec., 99 Ark. App. 129, 257 S.W.3d 908 (2007).
An employee who is extended a bona fide and reasonably-obtainable offer to be employed at wages equal to or greater than his average-weekly wage at the time of the accident is not entitled to permanent-partial-disability benefits in excess of the percentage of permanent-physical impairment.
Discussion
Redd contends that the Commission erred by finding that suitable employment was made available to him within his physical restrictions until such time as he took voluntary retirement. It is the employer‘s burden to prove that an employee was given a bona fide offer to be employed, at wages equal to or greater than his average-weekly wage at the time of the accident.
Redd argues that the employee must be capable of performing the required job activities for the offer to be bona fide,
The instant case is distinguishable from Keys, supra. There, even though the employer offered Keys a job as a door greeter to comply with her restrictions of no lifting over twenty pounds, no bending or stooping, and no prolonged standing or sitting, when Keys returned to work, her assigned duties were outside the bounds of those restrictions. Here, Redd was given a bona fide offer and, by his own testimony, was accommodated when he returned to work. He testified that he had the same hours and pay. His coworkers testified that his job duties were within his accommodations and that the school district was trying to protect him. Substantial evidence supports the Commission‘s finding that Redd was not entitled to wage-loss disability because he had a bona fide offer to be employed at wages equal to his average weekly wage at the time of the accident.
Affirmed.
PITTMAN and WYNNE, JJ., agree.