City of Fort Smith and Central Adjustment Co., Inc. v. Trina A. Kaylor
This text of 2019 Ark. App. 517 (City of Fort Smith and Central Adjustment Co., Inc. v. Trina A. Kaylor) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Reason: I attest to the Cite as 2019 Ark. App. 517 accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-06-18 10:09:54 DIVISION IV Foxit PhantomPDF Version: 9.7.5 No. CV-19-308
CITY OF FORT SMITH AND Opinion Delivered: November 6, 2019 CENTRAL ADJUSTMENT CO., INC. APPEAL FROM THE ARKANSAS APPELLANTS WORKERS’ COMPENSATION COMMISSION V. [NO. G708569]
TRINA A. KAYLOR
APPELLEE REVERSED AND REMANDED
MEREDITH B. SWITZER, Judge
The City of Fort Smith (Fort Smith) appeals the Workers’ Compensation
Commission’s (Commission) award of temporary total-disability (TTD) benefits to appellee
Trina Kaylor from October 13, 2017, until March 7, 2018. For the reasons discussed below,
we reverse and remand this case to the Commission for further findings.
Kaylor began working as a meter reader for Fort Smith in December 2016. Her job
required her to walk residential neighborhoods and record meter readings. Kaylor was
counseled after being on the job a little less than a month that she needed to speed up her
meter readings and improve the accuracy of the readings.
On June 20, 2017, Kaylor suffered an admittedly compensable left-leg injury when
she stepped in a hole while reading meters.1 Kaylor was placed on restricted duty. She was
1 The administrative law judge (ALJ) found Kaylor’s injury was a scheduled injury. The parties do not contest this finding. required to alternate sitting, standing, and walking, and she could not lift over twenty
pounds. Fort Smith provided work within Kaylor’s restrictions performing re-reads of
meters, but her accuracy and speed continued to be an issue—facts Kaylor admitted were
legitimate concerns. Kaylor was terminated on October 13, 2017, for failure to maintain
the level of meter-reading accuracy required by Fort Smith, which Fort Smith deemed to
be “insubordination” as defined in its handbook as “failure to perform work assigned.”
Kaylor continued to receive medical treatment for her compensable injury, and she was
released to return to work at full duty with no restrictions on March 7, 2018. Kaylor
testified she did not work between October 13, 2017, the date of her termination, and
March 7, 2018, the date she was released to return to work with no restrictions.
The ALJ found Kaylor had proved she was entitled to TTD benefits from October
13, 2017, until March 7, 2018. The Commission affirmed and adopted the ALJ’s opinion
as its own.2 Fort Smith now appeals, arguing Kaylor is not entitled to TTD benefits because
she had already returned to work, and she was terminated for reasons unrelated to her
compensable injury.
In appeals involving workers’ compensation claims, this court views the evidence in
the light most favorable to the Commission’s decision and affirms the decision if it is
supported by substantial evidence. Webb v. Wal-Mart Assocs., Inc., 2018 Ark. App. 627, 567
2 Arkansas law permits the Commission to adopt the ALJ’s opinion as its own. Ark. Highway & Transp. Dep’t v. Work, 2018 Ark. App. 600, 565 S.W.3d 138. If the Commission adopts the ALJ’s opinion, the ALJ’s findings of fact and conclusions of law are made the Commission’s findings of fact and conclusions of law, and this court considers both the ALJ’s opinion and the Commission’s majority opinion on appellate review. Univ. of Ark. at Pine Bluff v. Hopkins, 2018 Ark. App. 578, 561 S.W.3d 781. 2 S.W.3d 86. Substantial evidence is that which a reasonable mind might accept as adequate
to support a conclusion. Tyson Foods, Inc. v. Turcios, 2015 Ark. App. 647, 476 S.W.3d 177.
In awarding Kaylor TTD benefits from October 13, 2017, until March 7, 2018, the
ALJ cited Tyson Poultry, Inc. v. Narvaiz, 2010 Ark. App. 842. Our supreme court vacated
that decision in Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 388 S.W.3d 16. While this
court’s decision denied the employee benefits after he was terminated while on light duty
after a compensable injury when he called his supervisor a “mother-f—king bitch,” our
supreme court held Narvaiz was entitled to TTD benefits for the remainder of his healing
period after he was terminated for misconduct, as the misconduct did not amount to a refusal
of suitable employment. Presumably, the ALJ mistakenly cited this court’s case but actually
relied on our supreme court’s holding in awarding Kaylor TTD benefits. Narvaiz was
analyzed under Arkansas Code Annotated section 11-9-526 (Repl. 2012), which provides,
“If any injured employee refuses employment suitable to his or her capacity offered to or
procured for him or her, he or she shall not be entitled to any compensation during the
continuance of the refusal, unless in the opinion of the Workers’ Compensation
Commission, the refusal is justifiable.” In the present case, the ALJ clearly analyzed Kaylor’s
entitlement to TTD benefits under section 11-9-526.
The standard used for determining entitlement to TTD benefits differs depending on
whether the injury is a scheduled injury or a nonscheduled injury. In this case, it is
undisputed that Kaylor’s injury is a scheduled injury. For a nonscheduled injury, TTD
benefits are allowed only when a claimant is within his or her healing period and suffers a
total incapacity to earn wages. Fendley v. Pea Ridge Sch. Dist., 97 Ark. App. 214, 245 S.W.3d
3 676 (2006). Conversely, it is unnecessary for a claimant with a scheduled injury to prove a
total incapacity to earn wages in order to be entitled to TTD benefits. Id. (citing Wheeler
Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001)). Arkansas Code
Annotated section 11-9-521(a) (Repl. 2012), which applies to scheduled injuries, provides
that a claimant is entitled to TTD benefits “during the healing period or until the employee
returns to work, whichever occurs first” See also Robertson v. Pork Grp., Inc., 2011 Ark.
App. 448, 384 S.W.3d 639. If the claimant is either outside the healing period or has
returned to work, he or she is not entitled to benefits.
In the present case, neither the Commission nor the ALJ made any findings with
regard to the requirements set forth in section 11-9-521(a). While this court has held that
section 11-9-526 may be applicable in determining TTD benefits for scheduled injuries—
see Turcios v. Tyson Foods, Inc., 2016 Ark. App. 471, 504 S.W.3d 622, and Gomez v. Crossland
Constr. Co., Inc., 2011 Ark. App. 787—it has not held that such application may be made
without first making findings regarding the requirements set forth for determining TTD
benefits for scheduled injuries under subsection (a).
The Commission has the duty to make factual findings and conclusions “with
sufficient detail and particularity to allow us to decide whether its decision is in accordance
with the law.” Parker v. Advanced Portable X-Ray, LLC, 2014 Ark. App. 11, at 5, 431 S.W.3d
374, 379. This court does not review Commission decisions de novo on the record, nor
do we make findings of fact the Commission should have made but did not. Stallworth v.
Hayes Mech., Inc., 2013 Ark. App. 188. If the Commission fails to make specific findings of
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