*1 the trial court to what do asking ;— precisely defense that was the Code’s terms invoke clearly statutory excluded. did
The trial court not err motion in granting appellee’s result, limine. As a the issue with to the instructions regard jury becomes moot.
Affirmed. Neal,
Hart
JJ., agree.
SUPERIOR INDUSTRIES William THOMASTON
CA 00-24
Court of Arkansas Aрpeals Divisions II and III delivered November Opinion *2 Fowler, Firm, for Nebben and Nicole Weeks Bassett Law Curtis by: appellant. PLC, Mason, Law G. Chadd
Mason by: firm, appellee. B. Chief William Thomas- Judge. Appellee ROBBINS, JOHN with from ton was Industries Superior employed appellant 25, terminated 1995 until he was on 1998. He October August 12, 1996, on suffered a his shoulder and compensable injury July based on a five percent compensated permanent Mr. Thomaston filed for total disabil- rating. impairment 25, 1998, from the date of benefits his shoulder ity August through were on these benefits controverted surgery January that claimed it had made by appellant. Appellant light-duty employ- but ment available to the was terminated for appellee, misconduct not because limitations. After a physical *3 awarded the Commission total hearing, benefits, and Industries nоw Superior appeals. reversal, First,
For raises three it appellant arguments. argues that the an Commission standard in applied legal improper awarding Next, it contends that the tem- award was not substantial evi- porary supported by dence. asserts that thе Finally, Commission also erred in that it controverted entitlement finding to the shoul- appellee’s der Dr. Park in 1999. find surgery performed We no January error and affirm.
When
decisions from the Workers’
reviewing
Compensa
Commission,
tion
we view the evidence and all reasonable infеr
ences deducible
in
therefrom the
most favorable to the Com
light
mission’s
and affirm if
findings
substantial evidence.
supported by
Clark,
Welch’s
v.
223,
& Cleaners
38 Ark.
Laundry
App.
S.W.2d
283 (1992). Substantial evidence is that which a reasonable person
as
to
might accept
conclusion.
Fort Smith
adequate
support
City of
Brooks,
120,
v.
40 Ark.
Mr. Thomastоn testified that he is 44 old and worked has years since as an auto mechanic or in with His manufacturing. job Industries included Superior molten metal from a furnace moving 12, 1996, into casting machines. On was July he his performing job and Dr. with a strain He was diagnosed he hurt his shoulder. when Mr. Moffitt, released him to restricted duty. physician, company one arm until November worked a using only Thomaston light job duty. and then he returned regular worsened, he returned to Dr. so Thomaston’s Mr. symptoms and weakness a result of extreme 1997. As pain Moffitt August he was this time taking duty. During he was light again assigned later, he was Sometime and undergoing therapy. injections physical which included mopping, to an even job, lighter janitorial assigned cans. trash sweeping, emptying to Dr. In Mr. Thomaston changed physicians April detected, and after conservative treat- tear A rotator cuff was Park. failed, was recommended. ment surgery that, fired on to being
Mr. Thomaston acknowledged prior 25, 1998, or his five he had been written up supervisor August However, due he maintained that to his deteriorating times. six with his he was unable job condition keep up physically would each demands. He stated that with employer reprimand exceeded his restrictions. and that at times increase his duties they reason he was terminated Mr. Thomaston testified that only termi- his work. After he could not with being because keep up nated, benefits but was disqualified unemployment applied due to his medical restrictions. *4 Gaston, testified that the
Lance appellee supervisor, appellee’s duties, that were about his as result they changed complained Thomaston fell him. these Mr. to accommodate changes, Despite work, terminated. At in and after two behind his suspensions termination, his “he was on thin ice due to time of his already the “the event that made Mr. testified that Gaston job performance.” called female co- inevitable was an incident where termination [he] ‘bitches’.” workers on is that the Commission first argumеnt appeal
Appellant’s the total disabil- the standard in wrong awarding temporary applied that since they benefits. At the argued pro- ity hearing, appellant restrictions, within Mr. Thomaston his vided employment misconduct, he fault due to his termination was his own becausе However, the not be entitled to disability any should “the basis for claimant’s employment Commission disagreed, stating is irrelevant in claimant’s entitlement separation determining benefits.” The submits that this appellant incorrect, statement is and that the Commission should have made a factual determination as to whether Mr. Thomaston was fired for misconduct or fired because he was unable to work. If physically his misconduct, asserts, termination was for his benefits should be reversed. Arkansas Code Annotated section 11-9-526 1996) (Repl. provides: If any injured refuses employee suitable employment to his him, offered to or
capacity for he procured shall not be entitled to refusal, the any compensation during continuance of the unless in the of the opinion Commission, Workers’ Compensation refusalis justifiable. that we should use the appellant argues above statute as a basis benefits deny appellee that, Its by is analogy. argument
if the suitable employer provides and a claimant employment is it, for he should disqualified also be refusing disqualified getting fired for his own misconduct. first
Appellant’s is reasonable and argument persuasive; however, it does not with the stricture of comport our current law. Arkansas Code Annotated section 11-9-704(b)(3) 1996) (Repl. provides courts shall “any reviewing construe the provisions this chapter strictly.” section Consequently, 11-9-526 cоnstruing must, as we strictly, fact in this case controlling is that Mr. Thomaston did not refuse employment; accepted employ ment and was later choice, terminated not but at the option of this Since no employer. enacted provision legislature supports aрpellant’s we position are constrained to affirm.
When our General enacted Act Assembly 796 of it issued the Declaration,” following codified “Legislative at Ark. Code Ann. 11-9-1001 1996): (Repl. §
The Seventy-Ninth General Assembly realizes that *5 Arkansas workers’ compensation statutes must be revised and amended from time to time. Unfortunаtely,many the made changes of this by act were because necessary administrativelaw judges, Workers’ Commission, Compensation and the Arkansas courts have continually the workers’ compensation and eroded the purpose broadened scopе of General intends Assembly The Seventy-Ninth this statutes state. of of workers’ com- controlling that the and major purpose to restate and permanent is to pay timely temporary pensation that suffer an or injury all workers injured benefits to legitimately their in the course оf employment, pay disease out of and arising therefrom, and and medical expenses resulting reasonable necessary the work force. the worker to then to return Wlien, if, state need to be the General changed, statutes this workers’ compensation оf to do so. It is the intent specific its Assembly acknowledges responsibility annul, and hold Assembly repeal, of the General Seventy-Ninth law or decisions of administrative any all naught prior opinions Commission, or courts of the Workers’ Compensation judge, act. with in this any provision state to or in conflict contrary In limitations, the standard review by such as the statute future, things of if of courts, or the extent to which the Workers’ Commission Compensation condition, or added or disease should be excluded any physical injury, from law, statutes or the the workers’ by scоpe compensation coverage liberalized, broadened, narrowed, or those shall be things need to be be done administra- the General and should not Assembly by addressed Commission, or the courts. tive law the Workers’ judges, Compensation are to be If our workers’ laws added.) compensation (Emphasis broadened, or this should be left to legislature. changed is that the second appellant’s argument substantial evidence. We award is not supported is awarded when the claimant total disability disagree. Temporary and is he is within his totally shows healing period incapacitated State & from Arkansas earning wages. Transp. Dep’t Highway Breshears, In this Mr. Ark. 613 S.W.2d when he was Thomaston was within his healing clearly period terminated, and there was evidence that he was totally incapaci with duties tated. He testified that he could not his keep up light Moreover, fired for that reason. Dr. Park and was opined could work one-arm and later stated that only duty appel appellee treatment work activities were the cause for his need for lee’s major а result of that “Mr. Thomaston has not been able to work as Commission, And, on the it is not binding injury.” although that Mr. Thomaston was denied benefits unemployment significant There was substantial evidence to due to a personal disabling injury. award. the Commission’s disability support
13 is that the Commission Appellant’s remaining argument erred in that the shoulder was controverted. We ruling surgery affirm the on this Commission’s issue also. Dr. Park recom ruling However, mended 1998. would not surgery June the authorize and called for an examination. surgery independent examiner was but independent agreed surgery aрpropriate, did not render his until six months after was first opinion surgery recommended, interim, a substantial In the the causing delay. issue, claimant on the in a apparently requested hearing resulting conference and issuance of a order. The pre-hearing pre-heаring fact, of whether or not a claim is controverted is one question be determined from the circumstances of each case. Buck particular Center, ner v. Medical 32 Ark. Spark’sRegional 794 S.W.2d App. 623 Under the (1990). circumstances of this the Commission’s that the finding controvеrted was not surgery erroneous. Affirmed. and
Pittman, Stroud, Neal, JJ., agree. dissent. Meads, JJ., Crabtree I dissent Judge, because I dissenting. TERRY CRABTREE, find that the Commission the applied standard in wrong the awarding As correctly out pointed majority, Commission stated that “the basis for claimant’s is employment irrelevant in separation determining claimant’s entitlement to benefits.” I find to be statement to the law contrary of this state.
I believe that if Mr. Thomaston was terminated by appellee cause then he is not entitled to benefits. The states that majority stricdy 11-9-526, Ark. Code Ann. construing “the controlling § fact in this case is that Mr. Thomaston did not refuse employment; accepted was later employment terminated not choice, but at the of this Section option 11-9-526 employer.” that a claimant who provides refuses suitable work unjustifiably will not be entitled to Gilliam, benefits. See ITT/Higbie Ark. Mfg. 154, 807 S.W.2d App. I see no difference significant between a person suitable unjustifiably refusing and a employment, suitable person accepting but employment then not performing effect, duties of the In job. has person refused employment by refusing I satisfactorily believe that a perform job. claimant when he or she is offered refused has employment unjustifiably such and then is subse- suitable employment, accepts employment, due but from not terminated any employment quently *7 due to cause. Breshears, v. 272 Ark.
Under Arkansas State HighwayDep’t
that
392
our
сourt stated
(1981),
613 S.W.2d
supreme
“[temporary
the
is that
within the
which
total disability
healing period
period
a
to earn
total
suffers total
wages.” “Temporary
employee
incapacity
but is instead
is not based on the claimant’shealing
disability
period,
to
the
is
because of
awarded where
claimant
incapacitated
injury
earn
she was
at the time of the
wages
receiving
injury.” Johnson
If
Die &
46 Ark.
For foregoing for a on the issue finding Commission why case appellee was terminated.
MEADS, J., agrees.
Daniel ATKINSON v. Deborah D. ATKINSON
Steven
CA
Court of of Arkansas Appeals I
Division *8 delivered November Opinion