Foster v. Tyson Poultry, Inc.

426 S.W.3d 563, 2013 Ark. App. 172, 2013 Ark. App. LEXIS 182
CourtCourt of Appeals of Arkansas
DecidedMarch 13, 2013
DocketNo. CA 12-932
StatusPublished
Cited by1 cases

This text of 426 S.W.3d 563 (Foster v. Tyson Poultry, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Tyson Poultry, Inc., 426 S.W.3d 563, 2013 Ark. App. 172, 2013 Ark. App. LEXIS 182 (Ark. Ct. App. 2013).

Opinion

ROBERT J. GLADWIN, Chief Judge.

11Appellant Johnnie Foster appeals from the September 4, 2012 opinion of the Arkansas Workers’ Compensation Commission that affirmed and adopted the June 19, 2012 opinion of the Administrative Law Judge (ALJ) and found that she failed to prove by a preponderance of the evidence her entitlement to additional temporary-total-disability benefits (TTD), or to all related unpaid medical expenses and unpaid medically related travel expenses incurred with the University of Arkansas for Medical Sciences (UAMS). She argues that the Commission erred in finding that she did not meet her burden of proof and that the findings are contrary to law and not supported by substantial evidence. We affirm.

Appellant is a fifty-year-old woman who began working for appellee Tyson Poultry, Inc., in 1987. She worked there for six: years and then worked with other employers until she returned to appellee in April 2008. She worked on an assembly line where she was a shoulder cutter, cutting approximately thirty-six chickens per minute. It is undisputed that ^appellant sustained a compensable injury on or about September 23, 2008, specifically, a gradual-onset injury in the form of a repetitive-strain injury resulting in carpal tunnel syndrome and other related conditions.

Dr. David Rhodes performed a trigger-finger release to appellant’s thumb on November 4, 2009, and on December 2, 2009, median-nerve decompression surgery on her left upper extremity, Minimal TTD was paid, as appellant continued to work on lighter duty, primarily still on the line.

On January 6, 2010, Dr. Rhodes reported that appellant would reach maximum medical improvement (MMI) for carpal tunnel syndrome on February 3, 2010, with a ten-pound weight limit for the left upper extremity, On February 3, 2010, however, upon observation of swelling, Dr. Rhodes re-initiated treatment by way of oral steroids and steroid injections, subsequently, Dr. Rhodes reported the need to rule out reflex: sympathetic dystrophy (RSD) and referred appellant to Dr. Annette Meador.

Appellant ceased working on July 27, 2010, but it is disputed whether she abandoned her employment at that time. On August 6, 2010, Dr. Meador reported that RSD had resolved, appellant had reached MMI, and she had zero-percent impairment. Appellant had no medical treatment other than through her family physician for approximately eight months, with no treatment for the RSD, recurring carpal tunnel syndrome, or swelling and related pain. Appellant was terminated on November 29, 2010, on grounds of noncompliance with Family Medical Leave Act procedures required by appellee.

IsOn March 29, 2011, appellant presented to the emergency room at UAMS. From there, she was treated in the departments of orthopedics, neurosurgery, and rehabilitative medicine. Appellant was diagnosed with severe focal neuropathy of the left median nerve on April 20, 2011, diagnosed with de Quervain Tenosynovitis and recurrent carpal tunnel syndrome on August 8, 2011, and was ordered for physical/occupational therapy for three weeks as late as November 3, 2011.

During the course of treatment at UAMS, on August 2, 2011, appellant gave written notice to appellee that she was in need of additional medical treatment. Ap-pellee did not pay any additional benefits, claiming that the treatment was not performed by an authorized physician, and it is undisputed that appellant has not exercised her one-time change of physician, despite prompting by appellee.

The ALJ denied all benefits that were at issue, and the Commission affirmed and adopted the opinion of the ALJ by a two-to-one decision. This appeal followed.

In an appeal from the Commission, this court must determine whether the Commission’s decision was supported by substantial evidence by viewing the evidence and all reasonable inferences in the light most favorable to the Commission’s findings. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002). “Substantial evidence” has been defined as relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Cooper v. Hiland Dairy, 69 Ark.App. 200, 11 S.W.3d 5 (2000). This court may not reverse the Commission simply because it concludes that a different result was possible, that it would have reached a different conclusion if it were the trier of fact or heard |4the case de novo, or that the evidence would have supported a contrary finding. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 303, 40 S.W.3d 760, 766 (2001). Instead, the Commission’s decision must be affirmed if the court concludes that reasonable minds could reach the Commission’s decision, however, if the court is convinced that fair-minded persons with the same facts before them could not have reached the Commission’s conclusion, it may reverse. Id.

I. Denial of Additional TTD from July 29, 2010, to a Time Yet to be Determined

A claimant who suffers a scheduled injury is entitled to TTD during his healing period or until he returns to work. Ark.Code Ann. § ll-9-521(a) (Repl.2012); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The healing period is defined as that period for healing the injury, which continues until appellant is as far restored as the permanent nature of the injury will allow. Searcy Indus. Laundry, Inc. v. Ferren, 92 Ark.App. 65, 211 S.W.3d 11 (2005). The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Id.; Ark.Code Ann. § ll-9-521(a). See also Poulan, supra. In addition, the claimant’s “failure to return to work must be causally related to the injury.” Fendley v. Pea Ridge Sch. Dist., 97 Ark.App. 214, 216-17, 245 S.W.3d 676, 677-78 (2006).

Appellant submits that a claimant who returns to work, light duty or full duty, but does not continue to work because of termination, or physical inability to continue, is not necessarily precluded from further TTD simply because Arkansas Lode Annotated section ll-9-521(a) contains a provision stating that one of the ways TTD ends is when a claimant ^returns to work. Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 388 S.W.3d 16; Am. Railcar Indus. Inc. v. Gramling, 2010 Ark. App. 625, 2010 WL 3686561; Superior Indus. v. Thomaston, 72 Ark.App. 7, 32 S.W.3d 52 (2000). Further, she urges that Wheeler, cited in the ALJ opinion that was adopted by the Commission, does not stand for the proposition that TTD and the healing period necessarily end when a claimant returns to work.

Appellant challenges the Commission’s finding, in effect, that the August 6, 2010 report of MMI in Dr. Meador’s records is determinative, because a determination of MMI for appellant at that point conflicted with the overwhelming evidence to the contrary.

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Bluebook (online)
426 S.W.3d 563, 2013 Ark. App. 172, 2013 Ark. App. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-tyson-poultry-inc-arkctapp-2013.