Diana Vaughan v. APS Services, LLC; Hartford Insurance Co.
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DIVISION III
CA07-35
DIANA VAUGHAN
June 20, 2007
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[NO. F712283]
V.
APS SERVICES, LLC; Hartford Insurance
Co.
APPELLEES
REVERSED AND REMANDED
JOSEPHINE LINKER HART, Judge
Appellant, Diana Vaughan, argues that substantial evidence does not support the
Arkansas Workers’ Compensation Commission’s decision that she reached the end of her
healing period no later than June 15, 2005, and was not entitled to temporary total disability
compensation after that date. Because the Commission expressly relied on erroneous factual
findings in reaching its decision, we must reverse and remand for the Commission to fully
examine the relevant evidence presented in this case.
In order to be entitled to temporary total disability compensation, a claimant must
prove by a preponderance of the evidence that she remains in her healing period and suffers
a total incapacity to earn wages. Arkansas State Highway & Transp. v. Breshears, 272 Ark. 244,
613 S.W.2d 392 (1981). Our statutes define “healing period” as “that period for healing of
an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12) (Supp. 2005). Before
the Commission was the question of whether appellant remained in her healing period from
an admittedly compensable injury she sustained on September 17, 1997, involving her neck,
right shoulder, and right arm. The Commission, in a unanimous decision signed by
Chairman Olan W. Reeves, Commissioner Shelby W. Turner, and Commissioner Karen H.
McKinney, concluded that appellant reached the end of her healing period no later than June
15, 2005. In support of its decision, the Commission quoted in full and then relied on a
medical record of the same date. As argued by appellant, we hold that the Commission erred
in relying on this medical record in making its decision, as the medical record is not
appellant’s medical record.
The medical record, signed by Dr. William E. Ackerman, is accompanied by a letter
from appellant’s attorney to appellees’ attorney, stating that “[e]nclosed is a note on another
of my client’s (identity obliterated to preserve confidentiality).” According to the letter, the
medical record was sent to show that Dr. Ackerman, who also had treated appellant but who
had left Arkansas, had intended to refer all of his patients with reflex sympathetic dystrophy
(RSD) to a Dr. Amad. The letter indicated that appellant, who we note also had been
assessed by Dr. Ackerman as having RSD, “simply fell through the cracks.”
The
accompanying medical record is that of a patient whose complaint was pain in the left
ankle—not, as in this case, an injury to the right upper extremity. The medical record
indicates that a CAT scan was taken of the patient’s ankle; that another physician had placed
the patient at maximum medical improvement; that the patient’s RSD was stable; and that
Dr. Ackerman recommended that the patient see a Dr. Amad, an expert in RSD, for
medication refills.
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CA07-35
Citing language from the medical record, the Commission concluded that “the
preponderance of the evidence shows that [appellant] continued within her healing period
from May 5, 2005, until June 15, 2005, at which point Dr. Ackerman pronounced her RSD
condition had stabilized.” It found that appellant “reached the end of her healing period no
later than June 15, 2005.”
Appellee argues that even if the irrelevant medical record is not considered, the
Commission’s opinion was supported by substantial evidence.
But as in Tucker v.
Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000), the error is not that substantial
evidence was not presented or considered. Rather, as in Tucker, the Commission failed to
make a proper de novo review of the record, which resulted in it making erroneous factual
findings upon which it expressly relied in reaching its decision, thus leaving this court to
speculate concerning what evidence the Commission intended to rely on when making its
decision. The Commission’s erroneous factual findings require our reversal of its decision,
and we remand this case to the Commission for its full examination of the relevant evidence
presented.
Reversed and remanded.
GRIFFEN and GLOVER, JJ., agree.
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CA07-35
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