Willie Bell v. Razorback Concrete Co. and Wausau Business Insurance Co.
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
PER CURIAM
DIVISION I & II
CA07392
WILLIE BELL
JANUARY 30, 2008
APPELLANT
v.
APPEAL FROM THE ARKANSAS
W O R K E R S ’ C O M P E N S A T I O N
COMMISSION
[F501809]
RAZORBACK CONCRETE CO. and
WAUSAU BUSINESS INSURANCE CO.
APPELLEES
SUBSTITUTED OPINION UPON DENIAL
OF REHEARING; AFFIRMED ON DIRECT
APPEAL; AFFIRMED ON CROSSAPPEAL
Appellant, Willie Bell, appeals from a decision by the Workers’ Compensation Commission,
affirming the ALJ’s finding that appellant proved by a preponderance of the evidence that he
sustained a compensable injury, but reversing the ALJ’s finding that he was entitled to temporary
totaldisability benefits. On appeal, Bell argues that the Commission erred in denying him an award
of temporary total disability because he was forced to return to work when he was denied medical
treatment by appellee. On crossappeal, appellees/crossappellants Razorback Concrete Company
and Wausau Business Insurance Company assert that the Commission’s decision that appellant
sustained a compensable injury for which he was entitled to reasonably necessary medical expenses
is erroneous and not supported by the evidence. We affirm on direct appeal and cross appeal.
On December 28, 2004, Willie Bell was climbing back into the seat of a frontend loader
when he hit his right knee on a tool box. He explained that, as he climbed on to the frontend loader,
it was necessary to pivot on his right foot in order to get into the seat. He stated that, after striking
his knee on the tool box, he felt a type of heat sensation in his knee. Nevertheless, he continued to
perform his job duties after the incident. As the day progressed, he began to have pain and swelling
in his knee. When he noticed these symptoms, he notified dispatcher Chad McCullar of his injury.
The pain and swelling continued in his knee, and he began experiencing difficulty when walking.
He testified that he continued to report his symptoms to the dispatcher every other day until he
finally told the dispatcher that he needed to go to the emergency room.
Bell was seen at the emergency room on January 17, 2005, for his rightknee complaints and
relayed a history of the December 2004 work accident. The emergencyroom physician referred him
to orthopedic surgeon, Dr. Yao. Bell relayed this information to his supervisor, and an appointment
was made for an examination by Dr. Yao. Bell saw Dr. Yao on January 18, 2005, and Dr. Yao
directed Bell to remain off work from January 19, 2005, until January 27, 2005. Bell had a follow
up visit with Dr. Yao on January 26, 2005, at which time an MRI scan of the right knee was ordered.
After the followup visit, Bell was released to lightduty work. Bell testified that while on lightduty
work, he walked with a pair of crutches and wore a knee brace; however, he still experienced pain
and swelling in his right knee.
At another followup visit to Dr. Yao on February 14, 2005, Bell stated that Dr. Yao
explained that the recommended surgery relative to the right knee was being denied. Bell testified
that after the denial, he was unable to obtain further medical treatment. On February 17, 2005, Bell
called Dr. Yao’s office and requested to be released to return to fullduty work. He explained that
he did so because of his financial obligations (child support for four children) and the fact that he
had no other means of support. Per his request, Dr. Yao released him to fullduty work from
February 18, 2005, through April 22, 2005. Bell testified that, even though he was able to perform
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fullduty work, he continued to experience symptoms in his right knee.
On April 22, 2005, appellant was driving from West Memphis when he encountered a road
block. As he progressed through the road block, he was arrested when it was discovered that he had
an outstanding warrant in that county and that his automobile insurance had lapsed. Upon his
release from jail, he discovered that his position at Razorback Concrete had been filled. A few
weeks later, Bell became employed at City Electric. However, he was only there one month, as he
was unable to perform the physical labor because of the pain he still experienced in his knee. Bell
testified that because of the present condition of his right knee, he was unable to find further
employment.
The ALJ found that Bell sustained an injury to his right knee arising out of and in the course
of his employment; that Bell was temporarily totally disabled and within his healing period from the
December 28, 2004 scheduled right knee injury, and not working from approximately May 4, 2005,
and continuing, exclusive of a onemonth period when he was employed, through the end of his
healing period or return to gainful employment; and that respondent shall pay all reasonable hospital
and medical expenses arising out of the December 28, 2004 rightknee injury. The Full Commission
found that Bell had proved that he sustained a compensable injury for which he was entitled to
additional medical treatment; however, the Commission also found that Bell did not prove that he
was entitled to temporarytotaldisability compensation, thereby reversing that portion of the ALJ’s
decision. From that decision, comes this appeal.
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence
and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s
findings, and we affirm if the decision is supported by substantial evidence. WalMart Stores, Inc.
v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). Substantial evidence is that which a reasonable
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person might accept as adequate to support a conclusion. Olsten Kimberly Quality Care v. Pettey,
328 Ark. 381, 944 S.W.2d 524 (1997). The question is not whether the evidence would have
supported findings contrary to the ones made by the Commission; there may be substantial evidence
to support the Commission’s decision even though we might have reached a different conclusion
if we sat as the trier of fact or heard the case de novo. CDI Contractors v. McHale, 41 Ark. App.
57, 848 S.W.2d 941 (1993). We will not reverse the Commission’s decision unless we are
convinced that fairminded persons with the same facts before them could not have reached the
conclusions arrived at by the Commission. White v. GeorgiaPacific Corp., 339 Ark. 474, 6 S.W.3d
98 (1999). Questions concerning credibility of witnesses and the weight to be given to their
testimony are within the exclusive province of the Commission. Ark. Dep’t of Health v. Williams,
43 Ark. App. 169, 863 S.W.2d 583 (1993).
The only issue presented to this court by Mr. Bell is whether sufficient evidence supports
the Commission’s denial of temporary total disability. We find that it does.
The Commission made the following findings in the opinion:
The claimant’s testimony indicated that he returned to full work duty on or about February
18, 2005. The claimant was therefore not entitled to temporary total disability after that
date. See, Armstrong, supra. The record indicates that the claimant worked until April 22,
2005. The claimant was then incarcerated as the result of an arrest warrant detected during
a traffic stop. The claimant testified that he was in jail for 12 days. The Full Commission
does not find that the respondents were obligated to hold open the claimant’s job until he
was released from jail. The claimant has previously returned to work for a little over two
months, performing his regular duties. The claimant on appeal cites Farmers Cooperative
v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002) for the proposition that he was entitled to
continued temporary disability, because he “unsuccessfully attempted to return to the
workforce.” Nevertheless, we note the following language from Biles, citing Pyles v. Triple
F. Feeds of Texas, 270 Ark. 729, 606 S.W.2d 146 (Ark. App. 1980): “If, during the period
while the body is healing, the employee is unable to perform remunerative labor with
reasonable consistency and without pain and discomfort, his temporary disability is deemed
total.”
We again note, however, that the instant claimant had returned to full duty and was
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performing renumrative [sic] labor before his arrest and incarceration beginning April 22,
2005. The claimant does not cite any authority holding that a respondentemployer is
required to pay temporary disability when an employee has returned to remunerative labor
but is subsequently absent from the workplace for reasons unrelated to a compensable injury.
The Full Commission therefore reverses the administrative law judge’s award of temporary
total disability.
Temporarytotal disability is that period within the healing period in which an employee
suffers a total or partial incapacity to earn wages. Breakfield v. In & Out, Inc., 79 Ark. App. 402,
88, S.W.3d 861 (2002). As applied to scheduled injuries, a claimant is entitled to receive temporary
total or temporary partial disability benefits during the healing period or until he returns to work
regardless of whether he has demonstrated that he is actually incapacitated from earning wages. See
Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001) (emphasis added). In
this case, it is clear that Bell had returned to fullduty work on February 18, 2005, and remained on
fullduty work until April 22, 2005. Bell did not return to work after April 22, 2005, and ultimately
his employment was terminated. However, he was not terminated because of his inability to
complete the assigned work duties; rather, it was because he was incarcerated on an outstanding
warrant on April 22, 2005, and remained incarcerated for twelve days. Because Bell had returned
to fullduty work for more than two full months and was terminated for reasons unrelated to his
injury, we find that there was substantial evidence to support the Commission’s determination that
Bell was not entitled to an award of temporarytotal disability.
Appellees argue on crossappeal that the Commission erred in finding that appellant
sustained a compensable injury for which he was entitled to reasonably necessary medical expenses.
Appellees assert that the Commission’s determination of compensability was error for two reasons.
First, the medical records in evidence were not sufficient to support a finding of compensability, and
second, Bell’s right knee injury problems and need for treatment, if any, existed prior to his
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employment with appellee employer. To receive workers’ compensation benefits, a claimant must
establish (1) that the injury arose out of and in the course of the employment, (2) that the injury
caused internal or external harm to the body that required medical services, (3) that there is medical
evidence supported by objective findings establishing the injury, and (4) that the injury was caused
by a specific incident and identifiable by the time and place of the occurrence. Ark. Code Ann. § 11
9102(4) (Supp. 2007). As the claimant, appellant bears the burden of proving a compensable injury
by a preponderance of the credible evidence. See Ark. Code Ann. § 119102(4)(E)(i) (Supp. 2007).
A compensable injury must be established by medical evidence supported by objective
findings. Ark. Code Ann. § 119102(4)(D) (Supp. 2007); Crawford v. Single Source Transp.
Fidelity & Cas. Ins. Co., 87 Ark. App. 216, 189 S.W.3d 507 (2004). Objective findings are those
findings which cannot come under the voluntary control of the patient, Crawford, supra, and are
only necessary to establish the existence and extent of an injury, WalMart Stores, Inc. v.
VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
Appellee asserts that Mr. Bell relied on his own testimony as proof of his knee ailments and
that he offered little, if any, medical proof linking his ailments to his alleged December 28, 2004
accident. We disagree. In order to prove a compensable injury the claimant must prove, among
other things, a causal relationship between his employment and the injury, WalMart Stores, Inc.
v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (2002), and it is the Commission’s
function to determine the weight to be afforded to the testimony and medical evidence. Searcy
Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). Medical opinions must
be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 119102(16)(B); Wal
Mart Assocs., Inc. v. Davis, 98 Ark. App. 422, ___ S.W.3d ___ (2007).
In this case, the Commission’s opinion acknowledged that the record showed a “host of
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chronic and acute problems involving claimant’s right knee,” and even stated that “[f]rom November
1996 until June 1999, the record details a nearconstant series of medical treatment and mishaps
involving claimant’s knee.” However, the Commission also determined from the medical evidence,
or lack thereof, that there was generally no treatment of record for Mr. Bell’s right knee after June
1999 until the December 28, 2004 incident. From that point forward, the record contained numerous
objective medical findings, particularly from Dr. Yao, from which the Commission could determine
compensability. Specifically, Dr. Yao noted on February 15, 2005, that Mr. Bell had a “new medial
meniscus defect which diagnostic testing had not revealed prior to the December 2004 injury.”
Further, Dr. Yao noted that “[Mr. Bell] stated that his right knee had been doing well without any
pain until the 12/28/2004 injury.” The Commission has the duty of weighing the medical evidence
as it does any other evidence. Liaromatis v. Baxter Co. Regional Hosp., 95 Ark. App. 296, 236
S.W.3d 524 (2006) (citing Roberson v. Waste Mgmt., 58 Ark. App. 11, 944 S.W.2d 858 (1997)). The
Commission has the authority to accept or reject medical opinions, and its resolution of the medical
evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App.
129, 84 S.W.3d 878 (2002). Based on the evidence presented, we find that there was sufficient
evidence to support the Commission’s decision that Mr. Bell sustained a compensable injury for
which he was entitled to reasonably necessary medical expenses.
Affirmed on direct appeal; affirmed on crossappeal.
GLOVER, MARSHALL, VAUGHT, HEFFLEY and MILLER, JJ., agree.
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