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BUFORD v. STANDARD GRAVEL COMPANY12/1/1999
984 S.W.2d 817 (1998), in this case, the Commission based its decision to deny benefits almost entirely on its conclusion that Buford lacked motivation to work. The record simply does not contain facts that support the Commission's conclusion that Buford was "sadly lacking" in motivation.
The evidence is clear that Buford sustained four serious work-related injuries: a crushed larynx, and three consecutive injuries to his lower back that required surgical correction. After each injury except the last one, Buford has gone back to work. Following the loss of his job as a "derrick hand" due to his larynx injury, he sought out a friend who taught him to weld. Following his first back surgery, he asked the doctor to give him a release to return to work; and he returned to his welding job following his second back
surgery. These examples of Buford's conduct do not demonstrate a lack of motivation to work.
The functional capacity evaluation revealed that Buford can work only four hours a day, and then with many physical restrictions. The report stated that Buford "put forth good effort which passed validity criteria," that "there were no indications of symptom magnification," that "a conditioning program could, at best, help client achieve a light duty rating, but not a full-time work status," and that he "would not benefit from any type of rehabilitation program." These reports, along with the medical reports introduced at the hearing, indicate that Buford's reluctance to work was due to pain and discomfort resulting from his physical condition, not from any lack of motivation on his part.
The Commission seemed to take offense at Buford's testimony that he filled out the employment-application forms truthfully, and that he considers himself disabled. Had he been untruthful or falsely misrepresented his physical condition in obtaining employment, and, thereafter, sustained another work-related injury , the employer could have claimed that it was protected from liability by the Shipper's Transport defense. See Shipper's Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979).
When Buford's age, education, work experience, and medical restrictions are considered together, Buford made a clear and convincing prima facie case that he was totally and permanently disabled by his throat injury and his three back injuries. The burden then shifted to the employer to show that work is readily and consistently available within appellant's restrictions in his hometown of El Dorado, Arkansas. The employer failed to meet that burden. Gaye Signoff, a vocational counselor, testified that she had located thirteen jobs in the El Dorado community that she felt were within Buford's abilities, and Buford testified that he filled out applications at all of them. However, because he replied truthfully when asked about his physical condition, or for some other reason, he received no offer of an interview, much less a job , from any of those employers. Buford said when he went to seek a job, most people wondered why he was there, and that at one place where Signoff had told him a stool would be available, he was told that he would not be allowed to sit down at all.
The Commission should have awarded Buford permanent and total disability benefits. We reverse and remand for it to enter the order.
Reversed and remanded.
GRIFFEN and CRABTREE, JJ., agree.
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