Eugene Vaughn Ford Sales, Inc. v. Jimmie L. Wilkins

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION IV

EUGENE VAUGHN FORD SALES, INC.

APPELLANT

V.

JIMMIE L. WILKINS

APPELLEE

CA 00-67

SEPTEMBER 6, 2000

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E 603423]

AFFIRMED

Jimmie Wilkins, appellee, worked as a mechanic for Eugene Vaughn Ford Sales Inc., appellant, in Marked Tree, Arkansas. Appellee suffered a compensable work-related back injury on March 4, 1996. This case involves a finding by the Arkansas Workers' Compensation Commission that appellee was entitled to additional temporary total disability benefits from October 26, 1996, through April 2, 1997. On April 24, 1996, appellee had surgery to repair a herniated disk in his back caused by the work-related injury. Appellant accepted appellee's injury as compensable and paid certain medical expenses and temporary total disability benefits from March 5, 1996, through October 24, 1996. An opinion was issued by an Administrative Law Judge [ALJ] on August 5, 1998, on the issues of additional medical bills and emergency room treatment for April 17, 1997. The ALJ found that these bills were unrelated to appellee's compensable injury. This decision was not appealed. The

ALJ reserved the issue of additional temporary total disability benefits for a later hearing. On April 21, 1999, the AL J found that appellee proved by a preponderance of the evidence that he remained in his healing period and was totally unable to earn wages from October 26, 1996, through August 2, 1997. This opinion was adopted by the Arkansas Workers' Compensation Commission on October 13, 1999. On appeal, appellant contends that the Commission's finding of additional temporary total disability was not supported by substantial evidence and barred by res judicata or collateral estoppel. We find no error and affirm.

This court reviews decisions of the Arkansas Workers' Compensation Commission to see if the they are supported by substantial evidence. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this Court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).

A claimant is entitled to temporary total disability during his healing period if he shows by the preponderance of the evidence that he had a total incapacity to earn wages. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). Arkansas Code Annotated section 11-9-102(12) (Supp. 1999), defines the healing period "as that period for healing of an injury resulting from an accident." The question before this court is whenappellee's healing period ended.

The appellant relies on the opinion of Dr. Gregory Ricca, who performed appellee's surgery, that the appellee's healing period ended on October 24, 1996, because he had reached maximum medical improvement. Dr. Ricca was appellee's doctor until November 1996. Appellant then sent appellee to Dr. Bruce Safan in December 1996. Dr. Safan opined that the appellee did not reach maximum medical improvement until April 2, 1997. The opinion of Dr. Safan was found to be persuasive and was relied on by the ALJ to award additional benefits. These facts constitute substantial evidence that appellee was entitled to temporary total disability benefits for the period of October 26, 1996, through April 2, 1997. Appellant asserts that res judicata or collateral estoppel precludes the Commission's award of the additional temporary total disability benefits. We do not reach this argument, as the issue was not raised before the Commission or the ALJ. We do not consider issues raised for the first time on appeal. W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996).

We also note that appellant failed to satisfy Arkansas Supreme Court Rule 4-2(a)(8) (2000), because he failed to include a photocopy of the ALJ's opinions in the Addendum to his brief. Rule 4-2(a)(8) states that "the brief shall contain an Addendum which shall include photocopies of the order, judgment, decree, ruling, or letter opinion, or administrative law judge's opinion, from which the appeal is taken." Following this rule, appellant should have included in his Addendum a photocopy of each of the ALJ's two opinions, and a copy of the Commission's ruling. However, we realize that we are still in a period of adjustment withrespect to the Addendum requirements and address the merits of this case.

Affirmed.

Pittman and Jennings, JJ., agree.