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Deer v. City of Prescott6/1/2005
NOT DESIGNATED FOR PUBLICATION
Richard Deer appeals the decision of the Workers' Compensation Commission ("Commission") affirming the decision of the Administrative Law Judge and finding that Deer failed to prove by a preponderance of the evidence that suitable employment was available for him with the City of Prescott. On appeal, Deer argues that he was entitled to enhanced benefits pursuant to Ark. Code Ann. ยง 11-9-505(a) (Repl. 2002) because the City of Prescott unreasonably refused to return him to work. We affirm.
Deer worked as a meter reader for the City of Prescott. Both parties stipulated that Deer sustained a compensable injury on July 25, 2003, after he stepped into a hole and twisted his foot. Deer was initially treated in an emergency room, but he later came under the care of Dr. Michael Young, a general practitioner. Dr. Young took x-rays, a bone scan, and an MRI, but he did not find any abnormalities other than Deer's pre-existing conditions. Those pre-existing conditions included several impairments to his arms and feet-a missing thumb and fifth digit on his left hand, a clubfoot on his right foot, and missing big toes and second toes on both feet. Additionally, Deer wore a prosthesis on his right arm to take the place of his right hand. On August 20, 2003, Dr. C.E. Soeller, an orthopedist, examined Deer. Dr. Soeller determined that Deer suffered from degenerative arthritis of the medial column of the foot secondary to foot malformation with an overuse injury to the foot. He further noted that Deer aggravated his underlying osteoarthritis when he fell into the hole. Dr. Soeller stated that Deer needed to "get out of being a meter reader and get into a less demanding job where he does not require as much walking." On September 8, 2003, Dr. Young released Deer to return to work with the limitation that he decrease his amount of walking.
Deer testified that he inquired with Larry Stockton, office manager for the city, regarding other jobs available with the city that did not involve as much walking. Deer stated that he was referred to the mayor. Deer stated that he was told by the mayor that there were no jobs available that matched his restrictions. After being released to work, Deer went back to being a meter reader, but only worked for three days because he was having a lot of pain. It was at this time that his employment with the city was terminated.
Deer testified that before his injury he had no trouble fulfilling the duties of his position. He admitted that the job of meter reader could not readily be modified for someone that had difficulty walking. He also testified that it was his belief that a job with the street department had been vacated and not yet filled. He stated that he knew of an employee that had been transferred from a position with the street department, and Deer asserted that he had spoken with another employee of that department that said the street department could use additional help. Deer declared that it was his belief that the street-department job included truck driving, equipment operation, and some physical labor, but that he could perform the work with his limitations. He stated that he knew of one employee that had been hired in the water department since his termination. Deer stated that he was unsure that he could perform a job in the water or electric department with his disabilities.
Larry Stockton testified that the city employed about forty employees. He stated that no one had been hired to work in the street department since Deer's termination and that the city did not have any openings in that department. Only one employee had been hired since Deer's termination, and that person was hired for maint
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