{ "id": 6141424, "name": "SOUTHERN STEEL & WIRE v. Debra KAHLER", "name_abbreviation": "Southern Steel & Wire v. Kahler", "decision_date": "1996-08-21", "docket_number": "CA 95-919", "first_page": "376", "last_page": "380", "citations": [ { "type": "official", "cite": "54 Ark. App. 376" }, { "type": "parallel", "cite": "927 S.W.2d 822" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "28 Ark. App. 229", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140065 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/28/0229-01" ] }, { "cite": "39 Ark. App. 5", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135948 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/39/0005-01" ] }, { "cite": "40 Ark. App. 94", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137710 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0094-01" ] }, { "cite": "34 Ark. App. 154", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138995 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/34/0154-01" ] }, { "cite": "50 Ark. App. 13", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136288 ], "weight": 4, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/50/0013-01" ] }, { "cite": "44 Ark. App. 5", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135992 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/44/0005-01" ] } ], "analysis": { "cardinality": 424, "char_count": 7247, "ocr_confidence": 0.779, "pagerank": { "raw": 1.5982916643945283e-07, "percentile": 0.683428840832033 }, "sha256": "c0401b451b2901bb802e5addabdd4a1adc932fc2519e0c2229d4128f5bada93a", "simhash": "1:a18dc692540fd25c", "word_count": 1139 }, "last_updated": "2023-07-14T17:04:29.533878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield and Griffen, JJ., agree." ], "parties": [ "SOUTHERN STEEL & WIRE v. Debra KAHLER" ], "opinions": [ { "text": "JOHN B. Robbins, Judge.\nAppellant Southern Steel & Wire appeals from a portion of the decision of the Workers\u2019 Compensation Commission which held that the appellee Debra Kahler was entitled to wage-loss disability. Appellant contends on appeal that the Commission erred in awarding the appellee wage-loss benefits, arguing that the Commission\u2019s holding that appellee was not barred from recovering wage loss under Ark. Code Ann. \u00a7 ll-9-522(c)(2) for misconduct is not supported by substantial evidence. We affirm.\nOn appeal in workers\u2019 compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings and affirm if those findings are supported by substantial evidence. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission\u2019s conclusion, we must affirm its decision. ITT/Higbie Mfg. v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991).\nThe evidence before the Commission showed that the appel-lee sustained an admittedly compensable injury to her upper arm and shoulder on February 13, 1993, when she was working for appellant. Appellee was paid appropriate temporary total disability benefits and medical benefits. Appellee was also paid for a permanent anatomical impairment rating to her upper extremity.\nTestimony indicated that appellee continued to work for the appellant after her injury, but was \u201coff and on\u201d during her treatment by Dr. Alberty. Testimony further indicated that appellee performed various duties for appellant after her final release from treatment, but she testified that she had difficulties with certain positions to which she was assigned. The appellee was terminated by appellant on October 9, 1993, for what the appellant claimed was excessive absenteeism.\nAppellant controverted any responsibility for the payment of wage-loss disability because appellee had returned to work making the same or higher wages as before her injury. Appellant contended that because appellee was discharged for what appellant considered misconduct due to excessive absenteeism, she was not entitled to wage-loss benefits. Relying on Ark. Code Ann. \u00a7 ll-9-522(c)(2), appellant argues on appeal that since appellee was discharged for misconduct, she is not entitled to wage-loss disability.\nArkansas Code Annotated section ll-9-522(c) (1987) provides:\n(c)(1) The employer or his workers\u2019 compensation insurance carrier shall have the burden of proving the employee\u2019s employment, or the employee\u2019s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.\n(2) Included in the stated intent of this section is to enable an employer to reduce or diminish payments of benefits for a functional disability, disability in excess of permanent physical impairment, which, in.fact, no longer exists, or exists because of discharge for misconduct in connection with the work, or because the employee left his work voluntarily and without good cause connected with the work.\nThe wage-loss factor is the extent to which a compensable injury has affected the claimant\u2019s ability to earn a livelihood. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992), this court stated that it was the employer\u2019s burden to prove that the employee was discharged for misconduct connected to the work. Misconduct has been defined in Employment Security Division cases as meaning more than mere inefficiency or unsatisfactory conduct; it is some act of wanton or willful disregard for the employer\u2019s interest, a deliberate violation of the employer\u2019s rules, or a disregard of the standard of behavior that the employer has a right to expect of his employees. Baker v. Director, 39 Ark. App. 5, 832 S.W.2d 864 (1992).\nThe evidence indicated that the appellant\u2019s personnel policy provides for termination after nine occurrences. Appellee testified that she was unable to perform various duties she was assigned by appellant because of pain in her shoulder and arms due to her compensable injury. Appellee testified that approximately half of her absences were attributable to personal sickness and problems with her children and the other half of the absences were attributable to physical difficulties resulting from her compensable injury.\nThe Commission, which adopted the administrative law judge\u2019s opinion, found that the appellee was a credible witness and that her testimony about her absences was accurate. The Commission found that if the appellee\u2019s \u201cdischarge was for excessive absenteeism not occasioned by the effects of her compensable injuries, it could constitute a \u2018discharge for misconduct in connection with the work.\u2019 \u201d However, the Commission went on to hold that, \u201cIf her termination was based (even in part) on absenteeism necessitated by the effects of her compensable injuries, it is [our] opinion that it would not be sufficient to constitute a \u2018discharge for misconduct in connection with the work.\u2019 \u201d The Commission found it was peculiar that the appellee was able to maintain her employment with the appellant for six-and-one-half years and then be terminated for excessive absenteeism less than two months after a final release from her doctor\u2019s care. The Commission held that the appellant presented insufficient evidence that the appellee was discharged for misconduct in connection with the work and that she was not precluded from receiving wage-loss benefits.\nThe Commission found that the appellee was physically restricted in the types of employment she could perform. Appellee was not a high school graduate but was working on her GED at the time of the hearing before the administrative law judge. The Commission found that appellee was well motivated to continue working and that she had sought employment elsewhere. The Commission also found that appellee was pursuing rehabilitation on her own to obtain training in the areas of employment more suited for her current physical restrictions.\nThe Commission has the duty of weighing the medical evidence as it does any other evidence, and, if the evidence is conflicting, the resolution of the conflict is a question of fact for the Commission. Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989). Because the Commission found that the appellee was a credible witness and her absences were in part due to her compensable injury, the Commission\u2019s finding that the appellee was not properly discharged for misconduct in connection with the work is supported by substantial evidence.\nAffirmed.\nMayfield and Griffen, JJ., agree.", "type": "majority", "author": "JOHN B. Robbins, Judge." } ], "attorneys": [ "Walter A. Murray, for appellant.", "Hough, Hough, & Hughes, P.A., by: R. Paul Hughes III, for appellee." ], "corrections": "", "head_matter": "SOUTHERN STEEL & WIRE v. Debra KAHLER\nCA 95-919\n927 S.W.2d 822\nCourt of Appeals of Arkansas Division III\nOpinion delivered August 21, 1996\nWalter A. Murray, for appellant.\nHough, Hough, & Hughes, P.A., by: R. Paul Hughes III, for appellee." }, "file_name": "0376-01", "first_page_order": 402, "last_page_order": 406 }