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Sebastian County Sheriff's Department v. Hardy

Court of Appeals of Arkansas, Division III

November 8, 2017



          Jason M. Ryburn, for appellants.

          Walker, Shock & Harp, PLLC, by: Eddie H. Walker, Jr., for appellee.

          Glover and Vaught, JJ., agree.


         The Sebastian County Sheriff's Department (Department) appeals the opinion of the Arkansas Workers' Compensation Commission (Commission) that affirmed and adopted the opinion of the administrative law judge (ALJ) finding that Victoria Hardy is entitled to benefits under Ark. Code Ann. § 11-9-505(a) (Repl. 2012). We affirm.

         Hardy, an employee of the Department, sustained a compensable right knee injury on 2 September 2012 and was awarded a twenty-percent impairment rating. She sustained a second compensable injury to her right knee on 22 August 2013 and eventually underwent a total knee replacement. In April 2016, the ALJ convened a hearing to determine, among other things, Hardy's entitlement to (1) a permanent impairment rating regarding her total knee replacement, (2) additional medical treatment, and (3) benefits under Ark. Code Ann. § 11-9-505(a).

         Hardy testified to the following: In April 2015, she was taking the drug Lyrica for nerve damage from the knee surgery, and due to her pain level, her dosage of Lyrica had been doubled. Almost immediately after the dosage increase, she began stuttering. She attempted to contact her treating physician, Dr. Heim, but she was unable to reach him, and she eventually requested a change of physician and began seeing Dr. Hamby. At the time of the hearing, she still had problems with pain in her knee, and while she was still employed by the Department, she was on "medical catastrophic leave." She was able to return to work for a while after her knee replacement, but the stuttering rendered her unable to perform as a law enforcement officer because she could not communicate quickly and clearly. She asked to be considered for training to keep her training up-to-date, but that had not happened. She described a couple of instances in April 2015 in which Captain Miller, her supervisor, sent her home from work, and she had not worked since then. She did not voluntarily stop working for the Department and "would go back today if [she] could."

         On cross-examination, she quantified her present amount of stuttering as "a lot." She agreed that she had trouble communicating and said that there were no jobs currently available at the Department that she could do. She said she had worked in the control room after her knee replacement, but she was not doing that job now because she could not speak on the radio and because she did not have an updated doctor's release. She explained that she had been seeing her family doctor for the stutter and that he had taken her off Lyrica, put her on gabapentin, and was now weaning her off gabapentin. Drs. Heim and Hamby had recommended that she see a neurologist, and her family doctor, Dr. Kradel, had opined that one of the side effects of Lyrica is unusual changes in mood or speech patterns.

         On redirect, she explained that since the change in medication, her stuttering had gotten better and she was better able to focus. But, she said, her knee pain was much worse. Nevertheless, she thought that if the stuttering were taken care of, she could return to work. She said the last doctor's note she had releasing her to light-duty work was from January 2015. She stated that she had spoken to the Department a couple of weeks before the hearing about returning to work and that the human-resources department was "uncomfortable with the lack of an updated doctor's advisement." She was advised that she needed a "newer doctor's note than the one from over a year ago." On recross, she explained that she had not gotten a new doctor's release because Dr. Hamby required certain tests before he could make an assessment, and those tests had not been approved by workers' compensation. At the conclusion of Hardy's testimony, the ALJ noted on the record that Hardy's stutter was "significant."

         Captain John Miller, Hardy's supervisor, testified that Hardy had returned to work as a control-room operator after her total knee replacement and had no speech difficulties. But, he said, there were a couple of occasions when her medication had caused her to have trouble standing and formulating sentences, and her eyes had appeared bloodshot and watery. He opined that Hardy was overmedicated and stated that he had sent her home because he "was not comfortable having the safety of [his] deputies in somebody's hands that was basically not capable because of their medication to constantly be observing of all the cameras; to be able to concentrate on what she was doing." He acknowledged that the job was within the restrictions that her doctor had given her. Miller testified that if Hardy returned to work, he would have a job for her.

         On cross-examination, he confirmed that he could assign her to a sedentary duty that did not have the level of responsibility of the control room. He later clarified that he could do so "[w]ith the clearance of her doctor and HR [human resources]." He agreed that the Department had the ability to accommodate Hardy but that it was up to the human-resources department to "make the call as to whether or not they will actually let her go back to work."

         In a July 2016 opinion, the ALJ found that Hardy was entitled to an additional seventeen-percent impairment to her right knee, resulting in a thirty-seven-percent total impairment. The ALJ also found that additional medical treatment by Dr. Hamby was reasonable and necessary. Regarding Hardy's entitlement to benefits under § 11-9-505(a), the ALJ found:

After review of the medical records and releases to return to work, it is clear that the claimant had been released by authorized treating physicians to return to work in a sedentary position. The claimant does have a significant stuttering problem which she alleges to be related to medications taken for her compensable injury. However, that is not the subject of the current hearing before the Commission. That alleged symptom of her compensable injury does, however, affect her ability to perform employment services for the respondent. However, given Captain Miller's familiarity with the claimant's stuttering difficulty and physical state, he testified that the respondent has work available for the claimant within the restrictions provided by her physicians. The claimant has been unable to return to work at least as of the date of the hearing in this matter due to the human resources department for the respondents unwillingness to return her to work without a more current letter or note from her doctor regarding her restrictions. It is unreasonable to this Administrative Law Judge to require a more recent off-duty note when the claimant is certainly willing to return to work; her supervisor indicates that a position is available within the restrictions that were previously given and no doctor has changed those restrictions. As such, I find the claimant is entitled to Arkansas Code Annotated ยง 11-9-505(a) benefits in that the respondent has unreasonably refused to return the ...

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