# Sivixay v. Danaher Tool Group

> Court of Appeals of Arkansas · November 18, 2009 · 2009 Ark. App. 786

URL: https://www.frixlaw.com/law-library/cases/5109448

## Case

- **Full name:** Intong SIVIXAY v. DANAHER TOOL GROUP
- **Court:** Court of Appeals of Arkansas
- **Decided:** November 18, 2009
- **Citations:** 2009 Ark. App. 786; 359 S.W.3d 433; 2009 Ark. App. LEXIS 944
- **Precedential status:** Published
- **Opinion:** Dissent by Robbins
- **Judges:** Agree, Baker, Brown, Gruber, Henry, Kinard, Robbins
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5109448

## Opinion text

JOHN B. ROBBINS, Judge, dissenting.
Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s finding, as we must, I would affirm the Commission’s decision denying Mr. Sivixay’s claim for wage-loss benefits. Therefore, I respectfully dissent from the majority opinion.
Like the majority, I recognize the severity of the compensable injury. However, there was no medical opinion restricting Mr. Sivixay from returning to the forging job, and Dr. Moffitt indicated that the 35% impairment is associated with digestive problems, requiring restrictions allowing appellant to take frequent breaks to eat. Mr. Sivixay returned to full-time duty as a machine operator, apparently with little difficulty. As far as physical restrictions, Mr. Sivixay’s testimony indicated significant ones but evidently it was not ^credited by the Commission. Dr. Moffitt did document some pain and weakness, and stated that appellant’s physical activity is somewhat limited. But Mr. Sivixay’s refusal to attempt the forging job was an impediment to determining whether it was a job he could perform. Leaving it to the Commission to assess credibility and weigh the medical evidence, I think there was a substantial basis to support its decision that Mr. Sivixay is not entitled to wage-loss benefits because he was offered, and refused, a bona fide and reasonably obtainable offer to be employed at the same wages.
Mr. Sivixay has cited only a single case, a June 4, 2008 opinion from our court not designated for publication, in support of his claim that there was no bona fide offer in this case. However, it is without citation to any authority that the majority forcefully asserts, “Obviously, an employee must be capable of performing the required job activities in order for the proposed position to be considered a bona fide offer of employment.” I submit that not only is there substantial evidence in the record to support the Commission’s finding that appellee’s offer was bona fide, i.e., genuine and in good faith, but also there is no evidence to the contrary.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5109448. Public record. Not legal advice.