Mack-Reynolds Appraisal Co. v. Morton

375 S.W.3d 6, 2010 Ark. App. 142, 2010 Ark. App. LEXIS 143
CourtCourt of Appeals of Arkansas
DecidedFebruary 11, 2010
DocketNo. CA 09-472
StatusPublished
Cited by4 cases

This text of 375 S.W.3d 6 (Mack-Reynolds Appraisal Co. v. Morton) 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
Mack-Reynolds Appraisal Co. v. Morton, 375 S.W.3d 6, 2010 Ark. App. 142, 2010 Ark. App. LEXIS 143 (Ark. Ct. App. 2010).

Opinion

COURTNEY HUDSON HENRY, Judge.

| ¶ Appellant Mack-Reynolds Appraisal Company appeals the decision of the Arkansas Workers’ Compensation Commission finding that appellee Robert Morton sustained a work-related injury and awarding him benefits for medical treatment and temporary total disability. For reversal, appellant challenges the Commission’s findings regarding compensability of the injury and the award of temporary total benefits. Appellant also claims error in the administrative law judge’s ruling excluding certain evidence that appellant offered at the hearing. We affirm the Commission’s decision.

Appellee, age sixty-one, worked for appellant as a field appraiser. His job entailed on-site inspections of residential properties to verify the accuracy of information contained in real estate records. Appellee filed a claim for benefits asserting that he sustained an injury to his lower back at work on August 8, 2007, while inspecting a home located in a Cabot ^subdivision. He sought payment for medical treatment and for temporary total disability benefits to a date yet to be determined. Appellant controverted ap-pellee’s claim in its entirety. Appellant alleged that appellee did not sustain a specific injury identifiable by time and place of occurrence. Appellant also asserted that appellee was not entitled to temporary total benefits because appellee could have returned to work at light duty as a soil coder.

At the hearing before the law judge, appellee testified that, as he was using a wheel to measure the length of a residential property, he jarred his back when he abruptly stepped off a sidewalk that was not level to the ground. Appellee stated that, although he felt a “thump,” he experienced no immediate onset of pain but that, within twenty to thirty minutes, he began to feel pain in his lower back that radiated down his right leg. He said that, within an hour, he had difficulty entering and exiting his vehicle.

Appellee further testified that he resided in Marshall but that he was staying in Lonoke at the time with a co-worker, Larry Taylor, in a home provided by appellant. He said that he told Taylor about the injury that evening after work.1 The next morning, appellee reported the injury to his supervisor, Josh Cantrell.

Appellee also testified that he was not able to arrange an appointment with his family physician in Harrison, so he saw a chiropractor on August 10, 2007. The chiropractor referred appellee to Dr. Roy Lee, who operates a walk-in clinic in Harrison. Appellee |3underwent an MRI on August 23, 2007, from which Dr. Lee diagnosed an extreme lateral disc herniation at L3-4. Dr. Lee referred appellee to a neurosurgeon, whose proposed treatment included epidural steroid injections. However, appellee did not receive this or any other treatment in light of appellant’s denial of workers’ compensation liability.

Appellee testified that he cannot walk or sit for any length of time and that his back continues to be painful, although the pain is not as intense as it was initially. He said that he has not been able to work since the accident. Appellee admitted, however, that he filed as a candidate for the office of county assessor in Searcy County on March 10, 2008. He also stated that he did not ask to return to work at light duty and that he was not offered a position at light duty. He testified that he was familiar with the job of soil coding but that he did not know if that position was available. Appellee typically inspected between twenty to forty homes a day, but he could not recall which home he was inspecting when he tripped on the sidewalk. During cross-examination, appellant showed appellee a group of photographs that supposedly depicted the homes appel-lee inspected that day. Appellee stated that none of the homes appeared to be the one where he stepped off of the sidewalk.

In its defense, appellant presented the testimony of supervisor Josh Cantrell and Angela Rhodes, its human resources administrator. In her testimony, Rhodes stated that soil coding, a desk job, is a task routinely performed by field appraisers. She said that this position was available to appellee at the same rate of pay after August 9, 2007. Rhodes testified that Dr. |4Lee’s office sent her a form inquiring about light duty, and she said that she advised the doctor’s office that soil coding was a light-duty job that appellee could perform.

Cantrell confirmed that appellee reported the accident the day after it occurred. He stated, however, that appellant could have, but did not, call him on his cell phone on the day of the injury. Cantrell said that he identified the homes appellee inspected that day from a review of appel-lee’s date cards, and he took photographs of those homes. He further testified that there was not enough soil-coding work to justify appellee commuting to Lonoke to perform that job.

During the course of the hearing before the administrative law judge, appellant sought to introduce the photographs taken by Cantrell that purported to depict the homes appellee inspected on the day of the accident. The law judge sustained appel-lee’s objection to the admission of the photographs because appellant did not designate them as exhibits in the pre-hearing questionnaire. The law judge also did not allow appellant to introduce into evidence the form completed by Rhodes at Dr. Lee’s request, in which Rhodes stated that the job of soil coding was available as light-duty work. The law judge sustained appellee’s objection to the admission of this medical record because appellant had not provided it to appellee seven days in advance of the hearing.

In her written decision, the law judge incorporated the evidentiary rulings made at the hearing. In addressing appellee’s claim, the law judge ruled that appellee sustained his burden of proving that he sustained a specific injury identifiable by time and place of occurrence. 1 fiThe law judge also found that appellee was entitled to temporary total disability benefits from August 10, 2007, to March 10, 2008, the date appellee filed as a candidate for public office. Appellant appealed the law judge’s decision and evidentiary rulings to the Commission, which affirmed and adopted the law judge’s decision.

As its first argument, appellant contends that substantial evidence does not support the Commission’s finding that appellee sustained a compensable injury. Appellant asserts that appellee’s account of the injury is not credible and that, in any event, the injury appellee described is not one that is identifiable by time and place of occurrence.

To receive workers’ compensation benefits for a specific-incident injury, a claimant must establish that the injury arose out of and in the course of employment and was caused by a specific incident that is identifiable by time and place of occurrence. Ark.Code Ann. § 11 — 9— 102(4)(A)(i) (Supp.2009). While section 11 — 9—102(4)(A)(i) requires proof of a specific incident that is identifiable by time and place of occurrence, the statute does not require the claimant to identify the precise time and date upon which the injury occurred. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). However, the claimant’s injury must be attributable to a particular, specific incident. Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000).

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Cite This Page — Counsel Stack

Bluebook (online)
375 S.W.3d 6, 2010 Ark. App. 142, 2010 Ark. App. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-reynolds-appraisal-co-v-morton-arkctapp-2010.