Cross v. Crawford County Memorial Hospital

923 S.W.2d 886, 54 Ark. App. 130, 1996 Ark. App. LEXIS 431
CourtCourt of Appeals of Arkansas
DecidedJune 19, 1996
DocketCA 95-721
StatusPublished
Cited by12 cases

This text of 923 S.W.2d 886 (Cross v. Crawford County Memorial Hospital) 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.

Bluebook
Cross v. Crawford County Memorial Hospital, 923 S.W.2d 886, 54 Ark. App. 130, 1996 Ark. App. LEXIS 431 (Ark. Ct. App. 1996).

Opinions

Judith Rogers, Judge.

This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision denying appellant’s claim for wage-loss disability benefits. On appeal, appellant argues that there is no substantial evidence to support the Commission’s denial of wage-loss disability benefits. We agree that the Commission’s decision cannot stand, and we reverse.

The record reveals that appellant was a fifty-nine-year-old practical nurse who worked for appellee for twenty-four years. She has a seventh grade education and worked her way to the position of nurse’s aide. Appellant attended LPN school and passed her state boards before taking the position with appellee. Her duties as a practical nurse included total patient care. She was assigned four or five patients whom she bathed and fed. She also administered medication to those patients. The record also indicates that appellant’s job required heavy lifting and repetitive bending.

On December 9, 1991, she sustained an admittedly compensa-ble injury to her back and was assigned a 10% anatomical impairment rating. Appellee paid temporary partial disability benefits until March 10, 1994, and permanent partial disability benefits based on a 10% permanent physical impairment rating. In June 1994, appellant was laid off along with twenty other employees. Appellant testified that she has sought employment since the lay-off, but she has not been able to find employment.

The medical evidence reflects that appellant was seen by Dr. Richard D. DeKok, Director of Physical Therapy with Crawford Memorial Hospital. On June 28, 1994, Dr. DeKok noted that it was his goal as far back as December 1993 that appellant could increase to an eight-hour light duty shift with certain restrictions. The record indicates, however, that appellant returned to light duty in July 1993, and was provided only a four-hour work day until she was laid off in June of 1994. Appellant testified that she went back to work expecting an eight-hour day, and she did not understand why she was only given four hours. She also said that she never refused to work. Appellant stated that even though the work bothers her physically, she would rather work than draw social security disability.

Appellant also testified that when she returned to light duty in 1993 she discussed attending classes at Westark Community College with Ms. Jo Hilgendorf, appellee’s Human Resource Director. Appellant said that she checked the class schedule and contacted Ms. Hilgendorf. According to appellant, Ms. Hilgendorf said that she would “get back with her,” but Ms. Hilgendorf never called her back to confirm the courses. Appellant also stated that she was not made aware that appellee would be responsible for the cost of the courses. Appellant filed a claim requesting additional temporary total disability benefits and wage-loss disability benefits.

At the hearing, appellant was the only witness to testify. It was not until approximately nine days after the hearing that Ms. Hilgen-dorf’s deposition was taken. She testified that appellee would cover the costs of courses at Westark College and have a position for appellant if she completed the courses and if a job were available. Appellant gave a deposition in response to that of Ms. Hilgendorf in which she said that she would be willing to go to Westark College for training in typing and computer skills if appellee shouldered the costs.

The ALJ stated in his opinion:

If the claimant successfully completes the courses required at Westark Community College and if the respondent/ employer rehires the claimant at a wage equal to or greater than the wage she was drawing prior to her injury, then the claimant does not have a wage loss disability. The claimant would argue that if she cannot complete the courses or if the respondent/ employer does not re-employ her, then she has a wage loss disability. It appears to me that the issue of permanency was prematurely addressed. The issue should have been couched in terms of a request for rehabilitation benefits. It was not, therefore I find that claimant failed to prove by a preponderance of the credible evidence that she has a wage loss disability. (Emphasis added.)

After making a finding that the issue of wage loss was premature, the ALJ summarily denied appellant wage-loss disability because of insufficient credible evidence. It appears from the ALJ’s decision that his basis for the denial of wage-loss benefits was that the issue was premature and that the issue should have been “couched in terms of a request for rehabilitation benefits.” We find that the ALJ erred in denying appellant wage-loss disability benefits after he determined the issue to be premature. A finding on the issue of wage-loss disability should have been held in abeyance based on the ALJ’s finding. Therefore, we reverse the Commission’s denial of wage-loss disability benefits in light of its finding that the issue was premature.

We also note, that despite the Commission’s finding that the issue of permanency was premature, the Commission failed to make specific findings of fact in determining appellant’s entitlement to wage-loss disability benefits. In addition, the limited findings that the Commission did make are not supported by the record.

The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage-loss, such as the claimant’s age, education, and work experience. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). “The employer or his workers’ compensation insurance carrier shall have the burden of proving the employee’s employment, or the employee’s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of his accident.” Ark. Code Ann. § ll-9-522(c)(l) (Repl. 1996).

The ALJ made the following findings regarding wage-loss disability:

Even prior to the June 1994 layoff the claimant was advised by Jo Hilgendorf, Human Resources Director for Crawford County Memorial Hospital, that Crawford County Memorial Hospital would pay for computer training at Westark Community College which is located in Fort Smith. After schooling she would be employed by the respondent employer in either medical records or admissions. She would also be employed at the same rate of pay she was making prior to her compensable injury. For reasons known only to the claimant, she showed no interest in attending Westark Community College for training.

The ALJ failed to make specific findings with regard to the factors it should have considered when determining the issue of wage-loss disability benefits. The ALJ did not indicate that he considered appellant’s age, education, work experience, or medical condition. The Commission adopted that ALJ’s decision which failed to make sufficient factual findings that would enable the appellate court to conduct a meaningful review of the Commission’s decision. See Arkansas Dep’t of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993).

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Bluebook (online)
923 S.W.2d 886, 54 Ark. App. 130, 1996 Ark. App. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cross-v-crawford-county-memorial-hospital-arkctapp-1996.