Tillery v. Alma School District

Citation: 2022 Ark. App. 425

Court: Court of Appeals of Arkansas; October 26, 2022; Arkansas; State Appellate Court

Original Court Document: View Document

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Sylvia Tillery appealed an Arkansas Workers’ Compensation Commission ruling that limited her wage-loss disability to 10 percent of the body as a whole following a compensable back injury incurred while working as a custodian for the Alma School District. The District cross-appealed, asserting that Tillery was ineligible for wage-loss disability due to her refusal to participate in a proposed vocational-rehabilitation program.

Tillery received both conservative and surgical treatment for her injury, with her treating physician, Dr. James Blankenship, determining she had reached maximum medical improvement and assigned a 13 percent impairment rating. Despite this, Tillery sought permanent benefits exceeding this rating. Following a functional capacity evaluation (FCE), Dr. Blankenship reduced her impairment rating to 10 percent and limited her work capacity to sedentary roles with a weight-lifting restriction of twenty pounds.

The District subsequently requested a vocational-rehabilitation evaluation by Heather Taylor, who noted Tillery's motivation to work and interest in acquiring new skills. Taylor recommended several training programs at Arkansas Tech University–Ozark, which required prerequisite computer training available for free. Instead, Tillery chose to take computer classes at the Van Buren Adult Education Center and commenced on-the-job training elsewhere.

During the hearing, the administrative law judge (ALJ) sided with Tillery, finding no evidence that she had refused to participate in vocational rehabilitation. The court affirmed both the direct appeal and the cross-appeal.

The ALJ determined that Tillery did not waive or refuse to participate in rehabilitation or job-placement assistance programs, thus allowing her to receive benefits beyond her permanent physical impairment. The ALJ assessed Tillery’s wage-loss-disability claim in accordance with Arkansas law, concluding that her loss of wage-earning capacity was 10% to the body as a whole, based on factors like age, education, and work experience. Both parties appealed this decision to the Full Commission, which upheld the ALJ's ruling. Tillery contends that the Commission miscalculated her wage-loss disability, given her 13% permanent impairment rating, while the District argues she is ineligible for wage-loss benefits due to her refusal of their vocational rehabilitation offer. According to Arkansas law, an employee who declines rehabilitation or job-placement assistance without reasonable cause may not receive benefits exceeding their established impairment percentage. The District asserts that it provided Tillery with a recommended vocational rehabilitation program, which she declined in favor of a less comprehensive retraining program from AISA, indicating a refusal to cooperate. Consequently, the District claims Tillery is not entitled to wage-loss benefits.

Tillery and Taylor provided testimony before the ALJ, with Tillery expressing her commitment to continuing work and her enrollment in computer classes at the Adult Education Center in Van Buren, rather than the District's offerings at ATU. Taylor confirmed that the classes Tillery attended aligned with her recommendations and supported Tillery’s pursuit of skills that fit within her Functional Capacity Evaluation (FCE) guidelines. The Commission concluded that Tillery had not refused rehabilitation services and was actively seeking new skills. 

In reviewing the Commission's decisions, substantial evidence was required to affirm findings, which was met in this case. The Commission found that the District did not demonstrate that Tillery's actions indicated an unwillingness to cooperate with rehabilitation efforts. 

Regarding Tillery's wage-loss-disability claim, she argued that the awarded amount was insufficient given her limited employability due to her physical restrictions and education level. The Commission considered various factors, including Tillery's age, education, work history, and physical limitations resulting from her injury, ultimately determining her future earning capacity was affected. 

Tillery's request for re-evaluation of the evidence was denied, as the Commission was responsible for credibility determinations and weighing evidence. The conclusion that Tillery was entitled to 10 percent wage-loss-disability benefits was supported by substantial evidence, leading to an affirmation of the Commission's decision. The ruling was upheld on direct appeal and cross-appeal, with agreement from the judges involved.