Templeton v. Dollar General Store

2014 Ark. App. 248, 434 S.W.3d 417, 2014 WL 1628116, 2014 Ark. App. LEXIS 309
CourtCourt of Appeals of Arkansas
DecidedApril 23, 2014
DocketCV-13-909
StatusPublished
Cited by6 cases

This text of 2014 Ark. App. 248 (Templeton v. Dollar General Store) 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
Templeton v. Dollar General Store, 2014 Ark. App. 248, 434 S.W.3d 417, 2014 WL 1628116, 2014 Ark. App. LEXIS 309 (Ark. Ct. App. 2014).

Opinion

DAVID M. GLOVER, Judge.

_JjLecia Templeton sustained a compen-sable back injury on July 12, 2010, while working for Dollar General; reached the end of her healing period on September 27, 2011; and was awarded a fifteen-percent anatomical impairment rating in connection with that injury. She subsequently sought wage-loss disability in addition to her anatomical loss. The Arkansas Death and Permanent Total Disability Trust Fund deferred to the outcome of the litigation. Following a hearing, the ALJ denied her claim. The Arkansas Workers’ Compensation Commission affirmed and adopted the ALJ’s decision, and this appeal followed.

Templeton raises two points of appeal: 1) the Commission’s conclusion that the modified employment offered by Dollar General constituted a bona fide offer of employment is not supported by substantial evidence, and 2) she proved by a preponderance of the credible evidence that she is permanently and totally disabled as a result of her admittedly compensable |2injuries; alternatively, she proved by a preponderance of the credible evidence that she is entitled to wage-loss disability. We affirm.

Hearing Before ALJ

At the hearing before the ALJ, substantial testimony was given, primarily by Templeton. She testified that she worked for Dollar General a total of four years; she was hired as a cashier and later promoted to a management position called a third key. She explained her job duties as third key included stocking merchandise, overseeing employees, and doing paper work. According to her, the paperwork took approximately one hour out of her eight- to nine-hour work day. She testified she was fifty-one years old; she graduated from high school but had no other special training or education; and she had worked in retail for the past thirty years, which was the only type of work she had ever done.

Templeton explained that she had three back surgeries. She testified as follows. She underwent the third surgery because her back was getting worse and the pain had increased to the point she could not handle it; her leg stayed swollen much of the time; and she lost strength in her lower back and could not walk, sit, or stand for long periods of time. When her leg “went out,” she would fall if she did not have something to lean on. Her third surgery provided relief, but she continued to have symptoms. Her right leg sometimes involuntarily drew up, curling from the toe to the hip and staying that way for ten to fifteen minutes and she could not do anything until it stops. Dr. Ricca released her with a fifteen-percent-impairment rating, which Dollar General accepted and paid weekly. Dr. Ricca’s restrictions for her were that she be allowed to sit, stand, and lie down as needed.

IsTempIeton offered this further testimony. She was currently able to lift five to seven pounds; she can lift a carton of milk but feels a strain in her back when she does; the heaviest item she has lifted since her injury was ten pounds; she can lift a trash bag full of trash; she can bend some but not completely; she can sit for fifteen to twenty-five minutes without standing up and, if she sits longer, her right leg starts to go numb and she gets a pinching, burning pain in her back; standing stretches her leg and back and relieves some of the discomfort; and she can stand for fifteen to twenty-five minutes but if she stands for too long, her right leg goes out; and she has fallen twice but tripped more often.

She testified that she has a brace to keep her toes up; can walk approximately a block to a block and a half; walking further causes her back and leg to go out; she does not sleep well at night because she has cramping and drawing in her back and leg; a good day for her is when her pain level is at four; on good days, she will wash some dishes and do some dusting; on a bad day, her pain level is at seven or eight and she does not engage in any activities; four out of seven days are bad; she can no longer do yard work and gardening, which she used to enjoy; she can no longer ride horses; she feeds and brushes her two horses at times but nothing else; she can sit on the ground and pick vegetables; she can no longer go shopping with her seventeen-year-old daughter; and she can no longer coach softball.

As Templeton explained, when she attempted to return to work after the third surgery, with the same restrictions as before, she stocked shelves and was given an office chair with no arms to sit in and stock inventory from a shopping cart; the cart items were level with her knees or chest when she was sitting in the chair; to take an item out and put in on the shelf, |4she would have to turn and twist around and either bend down or reach up (even though her doctor restricted her from twisting and bending); the repeated twisting and bending caused her discomfort; getting up and down to move the chair and cart caused pain in her leg; the shelves were six-and-one-half feet tall, and she was asked to stock the top shelves but she could not because of the reaching and stretching involved; and no employee was assigned to help her with the cart, but she received help when she asked for it.

It was Templeton’s additional testimony that Dollar General discussed with her the possibility of working as a cashier, but she said that some of the items she would have been required to scan weighed more than ten pounds and she would have to twist and bend frequently. She said she would have had to stretch to reach the register keys while sitting. She testified that normally only two employees were on duty during any given shift, but that when she returned to work after her third surgery, Dollar General brought in a third employee because she was not able to perform the duties an employee would be required to perform — “essentially paying a third employee just to accommodate having me there.”

Templeton testified that part of her work restrictions was that she be allowed to lie down when necessary. She said Dollar General did not allow her to he down in the store (there were discussions about providing her a place to lie down on a cot near the cashier, but it was a very public area and it was never done); lying down in her truck was embarrassing; and she would usually lie down every two to three hours. She said she was scheduled to work four to six hours a day, but sometimes she could not work a full day because of her back | ¡¡troubles. Also, she stated that some of the store managers were irritated by the fact that her work was restricted.

She explained she ultimately resigned her employment because she felt she had done all she could physically; she had lost function in her right leg; she felt belittled; she thought if she kept working, it would result in . additional surgeries; however, she feels her back is stronger since quitting because she is no longer forced to twist and bend; her condition got worse between her third surgery and when she resigned; and she is not aware of any job at Dollar General she thinks she would be able to do.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 Ark. App. 248, 434 S.W.3d 417, 2014 WL 1628116, 2014 Ark. App. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/templeton-v-dollar-general-store-arkctapp-2014.