Cross v. Crawford County Memorial Hospital

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). A specific finding must contain all the specific facts relevant to the contested issue or issues so that the reviewing court may determine whether the Commission has resolved those issues in conformity with the law. Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). In this case, the ALJ failed to make specific findings with regard to the issue of wage-loss disability, and the limited findings that were made do not appear to be supported by the record.1 The record reveals that there was no actual offer of employment made by appellee to appellant. Ms. Hilgendorf said that if appellant was capable of performing the work, if a job was available, and if appellant could work eight hours a day then there may be a position as a ward secretary or in medical records when the computer equipment arrived. She testified that there was not a job available at the present time based on appellant’s current level of experience, education, and medical condition. Arkansas Code Annotated § ll-9-522(c)(l) places the burden on the employer of providing “a bona fide offer to be employed.” This means that there must be an actual offer of employment. See Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406 (1992). The evidence in this case does not show that appellant was offered a job. In fact, the evidence shows that any type of job available to appellant was speculative and based on future circumstances. Also, there is no evidence in the record indicating what rate of pay appellant would receive if she returned to a job with appellee. Furthermore, in noting that “[f]or reasons known only to the claimant, she showed no interest in attending Westark Community College for training,” the ALJ completely disregarded appellant’s testimony explaining why she had not attended classes. It would have been appropriate for the ALJ to make a credibility determination with regard to appellant’s testimony on this point, but that is not what occurred. Ordinarily, we would remand a case when the Commission fails to make specific findings to support its conclusion on an issue. However, in this case, the Commission’s decision must be reversed because of the Commission’s finding that the issue of wage-loss was premature. Consequendy, the onus will be on appellant to file a claim for wage-loss disability at an appropriate time when the issue is ripe for consideration.2 Reversed. Cooper, Robbins, and Mayfield, JJ„ agree. Jennings, C.J., and Griffen, J., dissent. Footnotes [1] The dissent does make specific findings from the evidence in the record to support the Commission’s denial of wage-loss disability. In accusing the majority of not following the appropriate standard of review, the dissent has done exactly what it condemns. The dissent has made credibility determinations, weighed the evidence, and gone to the record to bring forth evidence to support its position. While there may be evidence in the record to support a finding one way or the other, neither the ALJ nor the Commission resolved the wage-loss issue by appropriate findings of fact. See Sonic Drive Inn v. Wade, 36 Ark. App. 4, 816 S.W.2d 889 (1991). It is not our duty or role on review to go to the record and make those specific findings of fact. Only when the Commission fails in its responsibility to set forth specific findings of fact or when it determines an issue to be premature but then rules on that issue, does it then become our responsibility to correct the Commission’s error by either remanding the case or reversing the decision. [2] The dissent incorrectly notes that this case is remanded to the Commission “so that the parties may develop and present proof about appellant’s training and employment.” This case is being reversed because an issue was determined to be premature. The burden is on appellant to file a claim in the future if she wishes to seek wage-loss disability benefits.