Redd v. Blytheville School District 5

Cite as 2014 Ark. App. 575

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-530

DeLOVE REDD OPINION DELIVERED OCTOBER 29, 2014
APPELLANT

APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION
[NO. G107361]
BLYTHEVILLE SCHOOL DISTRICT
#5
APPELLEE AFFIRMED

ROBERT J. GLADWIN, Chief Judge

This is an appeal from the Arkansas Workers’ Compensation Commission’s February

13, 2014 opinion denying appellant DeLove Redd additional temporary-total-disability

(TTD) benefits and permanent-disability benefits in excess of the seven-percent whole-body

impairment already being paid to him. Redd appeals the Commission’s finding regarding his

entitlement to permanent-disability benefits in excess of seven percent. We affirm.

Statement of Facts

Redd is sixty-two years old and has an eleventh-grade education. He began working

for appellee Blytheville School District in 1982 as a custodian. During his almost thirty years

of employment with the school district, Redd sustained several injuries, including a right-

shoulder injury, a left-knee injury, and a back injury, all of which were accepted by the

school district. Redd’s most recent injury was sustained on August 16, 2011, as the result of
Cite as 2014 Ark. App. 575

a specific incident while helping a co-worker, Broderick Harris, lift a fifty-five-gallon drum

into a large dumpster.

Redd was initially examined by Dr. James Russell, but he was subsequently referred

to Dr. John Campbell, a neurosurgeon in Jonesboro, Arkansas. Following an MRI, Redd

was diagnosed as having sustained a small central L4-L5 disc herniation, which was treated

conservatively, without surgery.

Redd was released to return to work on February 22, 2012, with a twenty-pound

lifting restriction, no bending and twisting at the same time, and no prolonged standing or

sitting for more than two hours. On January 11, 2013, Dr. Campbell opined that Redd’s

only permanent restriction was not to lift over twenty pounds.

The school district made work available to Redd within the restrictions imposed by

the doctors. He testified that when he returned to work, he missed many days because his

back would begin bothering him. Redd retired at age sixty-two and began drawing both

social-security retirement and retirement from the school district. He said that he takes Aleve

“every now and then” for his back pain. Redd testified that the school district provided him

with restricted-duty work at the same salary until he elected to take retirement in July 2012.

Redd told the Commission, “If I worked for three days, they paid me for three days. They

didn’t lay me off. I was the one who elected to retire because I knew I couldn’t do the

work.”

James Williams testified that he worked as a plumber for the school district and that,

after Redd was injured and returned to work, Redd was not able to do the types of work

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he had previously been doing. Williams said that the district placed Redd with him as

Williams’s helper, and that his work did not require heavy lifting. He opined that the school

district was trying to protect Redd from heavy lifting by placing him with Williams.

Donald Jenkins, the maintenance supervisor for the school district, testified that once

Redd was released with restrictions, work was made available within the restrictions imposed.

Jenkins further stated that if Redd had not retired, work within Redd’s physical restrictions

would have continued to be provided.

Richard Atwill, the superintendent of the Blytheville School District, testified by

telephonic deposition that Redd was provided assistance at all times following his return to

work and that the school district always made work available within Redd’s restrictions until

his retirement on or about July 11, 2012. Atwill further stated that Redd was not considered

an “at will” employee due to the school contract and public policy, maintaining that if Redd

had not retired, he could have continued to work and receive the same hours and pay that

he had received prior to the injury.

The administrative law judge (ALJ) found in pertinent part that Redd failed to prove

by a preponderance of the evidence that he was entitled to additional TTD; that he failed

to prove that he was entitled to permanent-partial-disability benefits in excess of the seven-

percent whole-body impairment; and that the school district made suitable employment

available to him within his physical restrictions. Redd appealed this decision to the

Commission, which affirmed and adopted the ALJ’s decision. This appeal timely followed.

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Statement of Law

We review decisions of the Commission by considering whether there is substantial

evidence to support its decision. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41

S.W.3d 822 (2001). Substantial evidence is that relevant evidence that a reasonable mind

might accept as adequate to support a conclusion. Id. Questions concerning the credibility

of witnesses and the weight to be given their testimony are within the exclusive province of

the Commission. Sivixay v. Danaher Tool Grp., 2009 Ark. App. 786, 359 S.W.3d 433.

Further, we review the evidence and all reasonable inferences in the light most favorable to

the Commission’s findings and affirm if its findings are supported by substantial evidence. Id.

The wage-loss factor is the extent to which a compensable injury has affected the

claimant’s ability to earn a livelihood. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10

S.W.3d 882 (2000). When a claimant has an impairment rating to the body as a whole, the

Commission has the authority to increase the disability rating based upon wage-loss factors.

Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005). The Commission is

charged with the duty of determining disability based upon a consideration of medical

evidence and other factors affecting wage loss, such as the claimant’s age, education, and

work experience. Logan Cnty. v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).

Motivation, post-injury income, credibility, demeanor, and a multitude of other factors are

matters to be considered in claims for wage-loss-disability benefits in excess of permanent-

physical impairment. Henson v. Gen. Elec., 99 Ark. App. 129, 257 S.W.3d 908 (2007).

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An employee who is extended a bona fide and reasonably-obtainable offer to be

employed at wages equal to or greater than his average-weekly wage at the time of the

accident is not entitled to permanent-partial-disability benefits in excess of the percentage of

permanent-physical impairment. Ark. Code Ann. § 11-9-522(b)(2) (Repl. 2012). The

employer has the burden of proving a bona fide offer of employment. Ark. Code Ann. § 11-

9-522(c)(1) (Repl. 2012). The primary question before the Commission was whether

continued employment offered to Redd was a bona fide offer of employment that

disqualified him from receiving wage-loss benefits.

Discussion

Redd contends that the Commission erred by finding that suitable employment was

made available to him within his physical restrictions until such time as he took voluntary

retirement. It is the employer’s burden to prove that an employee was given a bona fide

offer to be employed, at wages equal to or greater than his average-weekly wage at the time

of the accident. Ark. Code Ann. § 11-9-522(c)(1). Redd contends that his testimony was

that he missed many days after returning to work, due to his injury. He contends that his

testimony—if he worked for three days they paid for three days—did not prove that his

employer had given him a bona fide offer because his earning power was not equal to or

greater than the amount he was earning before the injury. He claims that Williams’s

testimony corroborates that he missed a lot of work and could not perform the work.

Redd argues that the employee must be capable of performing the required job

activities for the offer to be bona fide, barring wage-loss disability in excess of his anatomic

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rating to the body as a whole. In support, he cites Wal-Mart Associates, Inc. v. Keys, 2012

Ark. App. 559, 423 S.W.3d 683, where this court upheld the Commission’s determination

that a bona fide offer of employment had not been made to the claimant because the job was

beyond her physical limitations, according to the description of the job and the claimant’s

experience working in the precise position that she was being offered. He argues that, here,

as in Keys, supra, the school district’s offer was not bona fide because the job offer was

beyond his physical limitations and in fact resulted in lower pay.

The instant case is distinguishable from Keys, supra. There, even though the employer

offered Keys a job as a door greeter to comply with her restrictions of no lifting over twenty

pounds, no bending or stooping, and no prolonged standing or sitting, when Keys returned

to work, her assigned duties were outside the bounds of those restrictions. Here, Redd was

given a bona fide offer and, by his own testimony, was accommodated when he returned to

work. He testified that he had the same hours and pay. His coworkers testified that his job

duties were within his accommodations and that the school district was trying to protect him.

Substantial evidence supports the Commission’s finding that Redd was not entitled to wage-

loss disability because he had a bona fide offer to be employed at wages equal to his average

weekly wage at the time of the accident. Ark. Code Ann. § 11-9-522(b)(2).

Affirmed.

PITTMAN and WYNNE, JJ., agree.

Bill E. Bracey, Jr., for appellant.

Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellee.

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