Tillery v. Alma School District

Cite as 2022 Ark. App. 425
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-22-6

Opinion Delivered October 26, 2022
SYLVIA TILLERY

APPELLANT/CROSS-APPELLEE APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G605938]
ALMA SCHOOL DISTRICT;
ARKANSAS SCHOOL BOARDS
ASSOCIATION; AND DEATH AND AFFIRMED ON DIRECT APPEAL AND
PERMANENT TOTAL DISABILITY ON CROSS-APPEAL
TRUST FUND

APPELLEES/CROSS-APPELLANTS

PHILLIP T. WHITEAKER, Judge

Sylvia Tillery appeals an order of the Arkansas Workers’ Compensation Commission

limiting her wage-loss disability to 10 percent to the body as a whole. The Alma School

District (District) cross-appeals, arguing that Tillery was not entitled to wage-loss disability

because she declined participation in an offered vocational-rehabilitation program. We

affirm on both direct appeal and on cross-appeal.

While working as a custodian with the District, Tillery suffered an admittedly

compensable back injury. She received both conservative and surgical treatment for her

injury. Her treating physician, Dr. James Blankenship, subsequently determined that Tillery

had reached maximum medical improvement and assessed a 13 percent impairment rating.

The District accepted his assessment and began paying permanent partial-disability benefits
based on that rating. Tillery, however, claimed that she was entitled to permanent benefits

in excess of the 13 percent impairment rating.

At the direction of Dr. Blankenship, Tillery underwent a functional capacity

evaluation (FCE). She gave a reliable effort during the FCE, and the FCE indicated that she

was able to perform work within the medium classification. Dr. Blankenship reviewed the

FCE and opined that Tillery could not return to her job as a custodian with the District. He

also opined that Tillery would be limited to performing a sedentary job with a permanent

weight-lifting restriction of twenty pounds. In light of Tillery’s physical limitations, Dr.

Blankenship assigned her an impairment rating of 10 percent to the body as a whole and

released her from his care. Tillery disagreed with this impairment rating and requested a

hearing.

Following this release, the District requested that Tillery undergo a vocational-

rehabilitation evaluation (VRE), which was performed by Heather Taylor, a vocational-

rehabilitation specialist, in February 2021. Taylor reported that Tillery expressed a desire to

continue working and seemed motivated to do so. Tillery also expressed an interest in

acquiring new skills, such as typing, word processing, or other computer-related skills, which

would allow her to perform a lighter-type job in the future.

After having analyzed Tillery’s work history and transferable skills, Taylor

recommended the following training programs at the Arkansas Tech University–Ozark

campus: Certificate of Proficiency–Office Support Specialist; Technical Certificate–Business

Technology; and Associate of Applied Science–Business Technology. Taylor reported that

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these recommended programs would not begin until August 2021 and that Tillery would

need to enroll in computer training as a prerequisite before she could enroll in these

programs. Taylor further reported that Tillery could receive the prerequisite free computer

training at any time at ATU–Ozark.

Instead of beginning the computer classes at ATU–Ozark, Tillery enrolled in

computer classes at the Van Buren Adult Education Center. She also contacted the

American Indian Services of Arkansas (AISA) and began on-the-job training for twenty hours

a week at eleven dollars an hour. Because Tillery did not follow Taylor’s recommendations,

the District took the position that Tillery was not entitled to any wage-loss disability.

The parties proceeded to a hearing before an administrative law judge (ALJ) on

Tillery’s claim for wage-loss disability. After hearing the testimony and reviewing the

evidence, the ALJ disagreed with the District, stating that he could not find that Tillery had

refused to participate in a program of vocational rehabilitation or job-placement assistance.

As a result, the ALJ did not find that Tillery had waived or refused to cooperate or participate

in an offered program of rehabilitation or job-placement assistance. Therefore, she was not

barred from receiving benefits in excess of her permanent physical impairment. The ALJ

then went to the evidence Tillery’s wage-loss-disability claim. Considering all the factors set

forth in Arkansas Code Annotated section 11-9-522(b)(1) (Repl. 2012), including her age,

education, and work experience, the ALJ found that she suffered a loss in wage-earning

capacity equal to 10 percent to the body as a whole.

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Both parties appealed the ALJ’s adverse findings to the Full Commission. After

reviewing the record, the Commission affirmed and adopted the decision of the ALJ.

Both parties have now appealed.

Tillery argues that the Commission erred in the amount of wage-loss disability

awarded. When a claimant has an impairment rating to the body as a whole, the Commission

has the authority to increase the disability rating on the basis of wage-loss factors. Calhoun v.

Area Agency on Aging of Se. Ark., 2021 Ark. 56, 618 S.W.3d 137. The wage-loss factor is the

extent to which a compensable injury has affected the claimant’s ability to earn a livelihood.

Id. In making a wage-loss-disability determination, the Commission should examine the

medical evidence, the worker’s age, her education, her work experience, and any other

matters that may affect future earning capacity, including motivation and attitude about

reentering the work force. Ark. Code Ann. § 11-9-522(b). Here, Tillery was issued a 13

percent permanent-impairment rating, which was accepted by the District. She contends that

the Commission erred in setting her wage-loss-disability benefit at 10 percent to the body as

a whole.

The District argues that Tillery is not entitled to a wage-loss-disability award because

she waived such award by refusing its offer of vocational rehabilitation. Ark. Code Ann. §

11-9-505(b)(3) (Repl. 2012) contains a statutory limitation regarding wage loss:

The employee shall not be required to enter any program of vocational rehabilitation
against his or her consent; however, no employee who waives rehabilitation or refuses
to participate in or cooperate for reasonable cause with either an offered program of
rehabilitation or job placement assistance shall be entitled to permanent partial

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disability benefits in excess of the percentage of permanent physical impairment
established by objective physical findings.

As the employer relying on the defense enumerated in § 11-9-505(b)(3), the District bears

the burden of showing that the claimant refused to participate in a program of vocational

rehabilitation or job-placement assistance or, through some other affirmative action,

indicated an unwillingness to cooperate in those endeavors and that such refusal to

cooperate was without any reasonable cause. See Burris v. L&B Moving Storage, 83 Ark. App.

290, 123 S.W.3d 123 (2003). Because Tillery’s claim depends, in part, on whether the

District’s claim is valid, we approach the District’s cross-appeal first.

The District argues that it offered Tillery the opportunity to complete a program of

vocational rehabilitation specifically recommended by Taylor in the VRE. Instead of

accepting this offer, Tillery chose to engage in another retraining program offered by AISA—

a program the District asserts is a drastic deviation from the rehabilitation plan it offered.

The District claims that AISA retraining was minimal in comparison to the offered programs

at ATU and that the outcome of the services offered by AISA would result in a level of

education or competency inferior to the programs offered at ATU. The District claims her

decision to engage in retraining only with AISA demonstrates an affirmative step toward

refusing the services the District had offered. As such, she is not entitled to wage-loss benefits.

With these arguments in mind, we turn our attention to the testimony before the ALJ.

Both Tillery and Taylor testified before the ALJ. Tillery testified regarding her desire

to continue working and the steps she had taken to do so. She expressed an interest in, and

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was motivated to learn, new skills so that she could continue working at a lighter-duty type

employment. Instead of attending the computer classes offered by the District at ATU,

Tillery enrolled in similar classes at the Adult Education Center in Van Buren. Taylor

testified that Tillery’s computer classes at the Van Buren Adult Education Center were the

same types of classes she had recommended Tillery take at the Ozark campus. Taylor further

acknowledged that the skills Tillery was currently pursuing would lead to jobs within her

FCE guidelines. Because the formal programs she recommended would not begin until

August 2021, Taylor did not believe that Tillery had refused any program available to her.

In fact, Taylor commended Tillery’s effort in attempting to obtain additional skills to allow

her to obtain employment in lighter-duty work.

The Commission found that Tillery had not refused the District’s offer of

rehabilitation and, in fact, was engaging in an effort to obtain new skills. In reviewing

decisions from the Commission, we view the evidence and all reasonable inferences

deducible therefrom in the light most favorable to the Commission’s findings and affirm if

they are supported by substantial evidence, i.e., evidence that a reasonable person might

accept as adequate to support a conclusion. Logan Cnty. v. McDonald, 90 Ark. App. 409, 206

S.W.3d 258 (2005). We do not reverse the Commission’s decision unless it is clear that fair-

minded persons could not have reached the same conclusion if presented with the same

facts. Foxx v. Am. Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). Such is not the case

here. On these facts there was sufficient evidence on which the Commission could find that

the District failed in its burden of showing that Tillery’s refusal to participate in the specific

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programs of vocational rehabilitation or job-placement assistance offered by it or through

some other affirmative action indicated an unwillingness to cooperate in those endeavors

and that such refusal to cooperate was without any reasonable cause. Therefore, we affirm

on this issue.

Next, we turn to Tillery’s wage-loss-disability claim. She claims that no reasonable

person would believe that the amount awarded by the Commission was adequate on the

basis of her earning capacity. She notes that this award is significantly lower than her

anatomical-impairment award, and given her obvious physical restrictions and limited

education and job skills, she is not employable in any significant capacity. She notes that

even Taylor was unable to identify any employers who would provide a job to her given her

education level and job experiences.

In the instant case, the Commission considered Tillery’s age, her limited education,

and her prior work history as a custodian and her related skills. It also considered Tillery’s

inability to perform the same types of work she had performed in the past because of physical

limitations related to her back injury and her ability to obtain future employment upon

retraining in arriving at its determination that Tillery’s future earning capacity had been

affected by her compensable injuries. The Commission’s findings are based on the

appropriate wage-loss factors, and its opinion adequately discusses the rationale that

underlies that finding.

Tillery, in effect, is requesting that we reweigh the evidence and credibility findings

made by the Commission; however, we will not do so because it is the Commission’s duty

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to make credibility determinations and to weigh the evidence. The issue is not whether we

might have reached a different result from that reached by the Commission or whether the

evidence would have supported a contrary finding. Id. We will not reverse the Commission’s

decision unless we are convinced that fair-minded persons with the same facts before them

could not have reached the conclusions arrived at by the Commission. Id.

Considering the fact-intensive nature of this inquiry in which the specific facts of this

claimant’s age, abilities, education, physical limitations, motivation, demeanor, and any

other factors deemed relevant are to be considered, we hold that reasonable minds could

conclude that Tillery was entitled to 10 percent wage-loss-disability benefits. Because the

Commission’s decision is supported by substantial evidence, we affirm.

Affirmed on direct appeal and on cross-appeal.

ABRAMSON and BROWN, JJ., agree.

Walker Law Group, PLC, by: Eddie H. Walker, Jr., for appellant.

Ledbetter, Cogbill, Arnold & Harrison, LLP, by: Laura J. Pearn, for separate appellees

Alma School District and Arkansas School Boards Association.

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