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Harris v. City of Fayetteville9/14/2005
NOT DESIGNATED FOR PUBLICATION
Jami Harris injured his back on August 5, 2002, while loading newspapers during the performance of his employment at appellee City of Fayetteville's solid waste recycling division. The city and its insurance carrier, appellee Arkansas Municipal League, accepted the injury as compensable under our workers' compensation statutes and agreed to a permanent partial impairment rating for Harris of seven percent to the body as a whole.
A hearing was held before an administrative law judge on August 26, 2003, to determine entitlement to a rehabilitation program. The law judge found that Harris's re-entry into school seeking an elementary education degree was reasonable and that the program fit within his limitations, and appellees were ordered to provide rehabilitation benefits to Harris. The Workers' Compensation Commission reversed, explaining in pertinent part:
The record shows that the respondent-employer offered the claimant re-employment assistance. Pursuant to Ark. Code Ann. § 11-9-505(b)(1), therefore, the Full Commission finds that the claimant did not prove he was entitled to a program of vocational rehabilitation.
Harris appeals the denial of his claim for vocational rehabilitation, contending (1) that the Commission errantly indicated that he had been given re-employment assistance and therefore was not entitled to vocational rehabilitation, and (2) that there is no substantial evidence to support the findings of the Commission. Appellees respond that substantial evidence supports the Commission's findings that the city provided Harris with re-employment assistance such that Harris was not entitled to expenses and other costs of vocational rehabilitation. We address Harris's two points as one, as appellees have done, and we affirm the Commission's decision.
Under Ark. Code Ann. § 11-9-505 (Repl. 2002), an employee who is entitled to compensation benefits for a permanent disability may also be eligible for rehabilitation benefits:
(b)(1) In addition to benefits otherwise provided for by this chapter, an employee who is entitled to receive compensation benefits for permanent disability and who has not been offered an opportunity to return to work or reemployment assistance shall be paid reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee.
(Emphasis added.) The approval or disapproval of a rehabilitation program is a matter within the discretion of the Commission. Cossenerry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982).
Harris contends that the Commission failed to distinguish between vocational rehabilitation that was provided to him by the State of Arkansas Rehabilitation Program and the statutory obligation of the city to provide vocational rehabilitation. He complains that the Commission "misconstrued re-employment assistance for vocational rehabilitation." He bases his arguments upon the evidence before the Commission: Harris's own testimony; a functional-capacity evaluation of January 16, 2003, that was ordered by his treating physician, Dr. James Blankenship; reports by Dale Thomas, a vocational consultant retained by appellee Arkansas Municipal League; testimony of Michele Bechold, a human resources director for appellee City of Fayetteville; and various documents.
Harris asserts that the city offered no vocational rehabilitation even though a job-analysis expert concluded that such a plan would be beneficial. He notes that his previous employment positions involved
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