Cite as 2023 Ark. App. 282 ARKANSAS COURT OF APPEALS DIVISION II No. CV-22-413
JUDY MELTON Opinion Delivered May 17, 2023
APPELLANT/CROSS-APPELLEE APPEAL FROM THE ARKANSAS WORKERS’ COMPENSATION COMMISSION V. [NO. G107174] CLARKSVILLE SCHOOL DISTRICT; ARKANSAS SCHOOL BOARDS ASSOCIATION; AND DEATH AND PERMANENT TOTAL DISABILITY AFFIRMED ON DIRECT APPEAL TRUST FUND AND ON CROSS-APPEAL
APPELLEES/CROSS-APPELLANTS
BRANDON J. HARRISON, Chief Judge
This is an appeal and cross-appeal from a decision by the Arkansas Workers’
Compensation Commission to award Judy Melton permanent disability benefits for a four
percent impairment to her cervical spine (“neck”) and five percent wage-loss disability. Judy
contends the Commission should have credited her treating orthopedist’s opinion that she
suffered an eight percent neck impairment, nine percent to her lumbar spine (“back”), and
five percent for brain injury. Clarksville School District, her employer, accepts the four-
percent neck impairment, but opposes everything else, including the wage-loss award. 1 We
affirm on direct appeal and cross-appeal.
1 The other appellees joined in the District’s notice of cross-appeal to this court. Only the District filed a brief here. Judy taught first grade. In August 2011, aged 57, she fell on a wet ramp as she was
helping students to the bus. She suffered injuries to her head, neck, and back.
The proceedings in the Commission that remain relevant here were as follows. The
District accepted that the injuries we mentioned were compensable, meaning they entitled
Judy to some workers’-compensation benefits—“such medical services as may be reasonably
necessary in connection with the injury,” for example. Ark. Code Ann. § 11-9-508(a)
(Repl. 2012). But when Judy sought permanent impairment ratings and wage loss-disability
at a March 2021 hearing, the District contended that she was seeking compensation for
issues that either did not affect her ability to work or were due to preexisting and underlying
conditions.
After hearing testimony from Judy and reviewing the medical evidence (which we
will discuss in a moment), the ALJ found she had suffered a five percent whole-body
impairment for head injury and a four percent impairment for neck injury. It found she did
not prove a back impairment or entitlement to wage loss.
Judy appealed, and the District cross-appealed, to the Full Commission. The Full
Commission made the award first mentioned above.
We have carefully reviewed the evidence in the Commission record, using the
required standard of review, which essentially requires that we defer to the Commission’s
credibility calls, if any, as we determine whether a fair-minded person could derive the
Commission’s conclusion on the record presented. E.g., Prock v. Bull Shoals Boat Landing,
2014 Ark. 93, at 12–13, 431 S.W.3d 858, 867. Speaking more plainly, weighing and
resolving conflicts in the evidence is the Commission’s task. Ours is to make a neutral and serious “gut check,” viewing the record in the light most favorable to what the Commission
did: Could fair-minded persons have done it?
On this record, fair-minded persons could have reached other decisions (as the ALJ
did in an opinion the Full Commission did not adopt); but they could also reach this one.
We address the impairment findings first.
I. Permanent Partial Disability
To demonstrate entitlement to permanent partial disability, Judy’s burden was to
prove that a compensable injury resulted in a permanent physical impairment supported by
objective and measurable physical findings. Ark. Code Ann. § 11-9-704(c)(l)(B) (Repl.
2012). Judy was also required to prove the compensable injury was the “major cause” (i.e.
more than 50 percent of the cause) of the permanent impairment. Ark. Code Ann. § 11-
9-102(4)(F)(ii)(a) (Repl. 2012). That was not a simple analysis in the circumstances.
Medical records documented issues before the fall in all three injured areas. A right-knee
problem, and related complications, entered the picture soon after and never left.
It seems to be undisputed that by 2017, Judy could no longer perform her duties as
a first-grade teacher. She had to ask other teachers or janitors for help with physical tasks
she had formerly done on her own. She could no longer get down on the floor with her
students. And she had missed work.
She testified that between her August 2011 fall and the following Christmas, she
missed twenty school days because of her back and migraine headaches. She still has those
headaches, and they interfere with her ability to think and function. She attributes them to
a brain injury from the 2011 fall.
3 The Commission disagreed. It placed significant evidentiary weight on a report from
a neuropsychological evaluation in January 2012 that “[t]he overall pattern of the
neuropsychological evaluation is not compatible with a traumatic brain injury.” A CT scan
of Judy’s brain days after the fall, and another in November 2012, were normal. A brain
MRI from December 2011 showed findings that were consistent with diffuse axonal injury
(that is, a concussion), but also consistent with migraines. The Commission quoted
correspondence from a treating physician that indicated Judy had a history of migraines
before the fall:
Mrs. Melton is a patient that I have followed for a number of years for chronic intractable migraines. She had a long history of migraines which exacerbated after concussion. She has had some mild attention and concentration focusing issues which was felt to be related to the concussion but also related to medication as well as her migraines. She has been stable as far as her migraines are concerned has had no worsening in her other symptoms. At this time from the standpoint of her migraines as well as cognitive impairment there are no limitations as far as her ability to work.
That recitation is enough to affirm the Commission’s finding that Judy did not suffer a
permanent brain impairment given the standard of review.
Next, the neck impairment. The Commission’s award of a four percent whole-body
impairment to the neck was based on a rating by Stuart Jones, a physical therapist, after an
evaluation revealed muscle spasms in Judy’s left lower side cervical region. The District
accepts that rating. Judy argues the Commission should have awarded eight percent. We
affirm. There was evidence the cervical problem was present in 2002. There was a “very
small disc protrusion/herniation off to the right side at C5-6.” In December 2011, an MRI
revealed degenerative disc disease with spondylosis at that level and C4–C5, but the findings
were old, with no acute abnormalities noted. This was not evidence, the Commission
4 found, of the “moderate to severe” degenerative changes that would support more than a
four percent rating.
Substantial evidence likewise supports the Commission’s finding that Judy suffered
no permanent back impairment from the 2011 fall. Jones noted in his rating evaluation that
even Judy’s treating orthopedist had “related her chronic low back pain to a chronic gait
disturbance” (namely an “antalgic lurch gait”) from a knee injury that had resulted in
“approximately ten knee surgeries.” It was causing stiffness and back pain by fall 2015.
Indeed, the knee had already been operated on at least three times. Further, the disc bulge
Free access — add to your briefcase to read the full text and ask questions with AI
Cite as 2023 Ark. App. 282 ARKANSAS COURT OF APPEALS DIVISION II No. CV-22-413
JUDY MELTON Opinion Delivered May 17, 2023
APPELLANT/CROSS-APPELLEE APPEAL FROM THE ARKANSAS WORKERS’ COMPENSATION COMMISSION V. [NO. G107174] CLARKSVILLE SCHOOL DISTRICT; ARKANSAS SCHOOL BOARDS ASSOCIATION; AND DEATH AND PERMANENT TOTAL DISABILITY AFFIRMED ON DIRECT APPEAL TRUST FUND AND ON CROSS-APPEAL
APPELLEES/CROSS-APPELLANTS
BRANDON J. HARRISON, Chief Judge
This is an appeal and cross-appeal from a decision by the Arkansas Workers’
Compensation Commission to award Judy Melton permanent disability benefits for a four
percent impairment to her cervical spine (“neck”) and five percent wage-loss disability. Judy
contends the Commission should have credited her treating orthopedist’s opinion that she
suffered an eight percent neck impairment, nine percent to her lumbar spine (“back”), and
five percent for brain injury. Clarksville School District, her employer, accepts the four-
percent neck impairment, but opposes everything else, including the wage-loss award. 1 We
affirm on direct appeal and cross-appeal.
1 The other appellees joined in the District’s notice of cross-appeal to this court. Only the District filed a brief here. Judy taught first grade. In August 2011, aged 57, she fell on a wet ramp as she was
helping students to the bus. She suffered injuries to her head, neck, and back.
The proceedings in the Commission that remain relevant here were as follows. The
District accepted that the injuries we mentioned were compensable, meaning they entitled
Judy to some workers’-compensation benefits—“such medical services as may be reasonably
necessary in connection with the injury,” for example. Ark. Code Ann. § 11-9-508(a)
(Repl. 2012). But when Judy sought permanent impairment ratings and wage loss-disability
at a March 2021 hearing, the District contended that she was seeking compensation for
issues that either did not affect her ability to work or were due to preexisting and underlying
conditions.
After hearing testimony from Judy and reviewing the medical evidence (which we
will discuss in a moment), the ALJ found she had suffered a five percent whole-body
impairment for head injury and a four percent impairment for neck injury. It found she did
not prove a back impairment or entitlement to wage loss.
Judy appealed, and the District cross-appealed, to the Full Commission. The Full
Commission made the award first mentioned above.
We have carefully reviewed the evidence in the Commission record, using the
required standard of review, which essentially requires that we defer to the Commission’s
credibility calls, if any, as we determine whether a fair-minded person could derive the
Commission’s conclusion on the record presented. E.g., Prock v. Bull Shoals Boat Landing,
2014 Ark. 93, at 12–13, 431 S.W.3d 858, 867. Speaking more plainly, weighing and
resolving conflicts in the evidence is the Commission’s task. Ours is to make a neutral and serious “gut check,” viewing the record in the light most favorable to what the Commission
did: Could fair-minded persons have done it?
On this record, fair-minded persons could have reached other decisions (as the ALJ
did in an opinion the Full Commission did not adopt); but they could also reach this one.
We address the impairment findings first.
I. Permanent Partial Disability
To demonstrate entitlement to permanent partial disability, Judy’s burden was to
prove that a compensable injury resulted in a permanent physical impairment supported by
objective and measurable physical findings. Ark. Code Ann. § 11-9-704(c)(l)(B) (Repl.
2012). Judy was also required to prove the compensable injury was the “major cause” (i.e.
more than 50 percent of the cause) of the permanent impairment. Ark. Code Ann. § 11-
9-102(4)(F)(ii)(a) (Repl. 2012). That was not a simple analysis in the circumstances.
Medical records documented issues before the fall in all three injured areas. A right-knee
problem, and related complications, entered the picture soon after and never left.
It seems to be undisputed that by 2017, Judy could no longer perform her duties as
a first-grade teacher. She had to ask other teachers or janitors for help with physical tasks
she had formerly done on her own. She could no longer get down on the floor with her
students. And she had missed work.
She testified that between her August 2011 fall and the following Christmas, she
missed twenty school days because of her back and migraine headaches. She still has those
headaches, and they interfere with her ability to think and function. She attributes them to
a brain injury from the 2011 fall.
3 The Commission disagreed. It placed significant evidentiary weight on a report from
a neuropsychological evaluation in January 2012 that “[t]he overall pattern of the
neuropsychological evaluation is not compatible with a traumatic brain injury.” A CT scan
of Judy’s brain days after the fall, and another in November 2012, were normal. A brain
MRI from December 2011 showed findings that were consistent with diffuse axonal injury
(that is, a concussion), but also consistent with migraines. The Commission quoted
correspondence from a treating physician that indicated Judy had a history of migraines
before the fall:
Mrs. Melton is a patient that I have followed for a number of years for chronic intractable migraines. She had a long history of migraines which exacerbated after concussion. She has had some mild attention and concentration focusing issues which was felt to be related to the concussion but also related to medication as well as her migraines. She has been stable as far as her migraines are concerned has had no worsening in her other symptoms. At this time from the standpoint of her migraines as well as cognitive impairment there are no limitations as far as her ability to work.
That recitation is enough to affirm the Commission’s finding that Judy did not suffer a
permanent brain impairment given the standard of review.
Next, the neck impairment. The Commission’s award of a four percent whole-body
impairment to the neck was based on a rating by Stuart Jones, a physical therapist, after an
evaluation revealed muscle spasms in Judy’s left lower side cervical region. The District
accepts that rating. Judy argues the Commission should have awarded eight percent. We
affirm. There was evidence the cervical problem was present in 2002. There was a “very
small disc protrusion/herniation off to the right side at C5-6.” In December 2011, an MRI
revealed degenerative disc disease with spondylosis at that level and C4–C5, but the findings
were old, with no acute abnormalities noted. This was not evidence, the Commission
4 found, of the “moderate to severe” degenerative changes that would support more than a
four percent rating.
Substantial evidence likewise supports the Commission’s finding that Judy suffered
no permanent back impairment from the 2011 fall. Jones noted in his rating evaluation that
even Judy’s treating orthopedist had “related her chronic low back pain to a chronic gait
disturbance” (namely an “antalgic lurch gait”) from a knee injury that had resulted in
“approximately ten knee surgeries.” It was causing stiffness and back pain by fall 2015.
Indeed, the knee had already been operated on at least three times. Further, the disc bulge
at L4-5 that was noted in a lumbar MRI after the 2011 incident was also noted in a lumbar
MRI after a previous similar fall six years earlier. Even in the 2011 scan there was “not
much of a bulge at L4–5, if any.” We cannot say the Commission erred when it found that
no permanent back injury was caused in the fall at work.
II. Wage-Loss Disability
The Commission found Judy proved she had sustained a five percent wage-loss
disability because of the compensable neck injury. Judy contends that because she is no
longer able to do her old job, the Commission’s award is “entirely inadequate,” and we
should remand to assess her “actual loss of earning capacity.” On cross-appeal, the District
opposes even that award, arguing that Judy’s “claimed inability to work is not due to the
injuries sustained in 2011.”
When a claimant has sustained a permanent impairment rating to the whole body,
the Commission is authorized to increase the disability rating based on wage-loss factors.
Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2012); Redd v. Blytheville Sch. Dist. No. 5, 2014
5 Ark. App. 575, 446 S.W.3d 643. It determines wage-loss disability by considering the
medical evidence and a host of factors including motivation, postinjury income, credibility,
demeanor, age, education, and work experience. Cooper v. Univ. of Ark. for Med. Scis., 2017
Ark. App. 58, at 7, 510 S.W.3d 304, 309; Emerson Elec. v. Gaston, 75 Ark. App. 232, 58
S.W.3d 848 (2001).
First, the record reflects that teaching first grade is not a desk job. It’s hard work.
Judy testified that she not only had to instruct her students, but also had to physically “get
down on their level,” kneeling by their chairs, and listening to them read. She had to move
desks, put up bulletin boards, and the like. Judy testified she had trouble bending her neck
a lot, which affected even her computer work. She had physical therapy for her neck, but
it didn’t help. Eventually (the record isn’t clear when) she decided not to return to work.
The Commission gave “minimal weight” to Dr. Rosenzweig’s predictions in June
2020 that she would not be able to work anywhere else. Conceding her advancing age (67
by then), it noted she has marketable educational credentials and work experience. All three
commissioners—two who favored the wage-loss award and one who dissented from it—
cited Judy’s lack of motivation to return to work within her permanent physical restrictions.
In theory, we review the Commission’s findings about wage-loss disability, like its
impairment finding, for substantial evidence—a somewhat deferential standard. But
determining wage-loss disability is a “fact-intensive” inquiry that calls for the Commission
to consider a range of listed factors—“and any other factors deemed relevant[.]” Tillery v.
Alma Sch. Dist., 2022 Ark. App. 425, at 8.
6 In practice, if there is a basis for finding the claimant suffered a wage loss, and there
is no legal barrier to making the award, and the Commission does not recite an improper
basis for making it, then the appropriateness of a particular award is beyond meaningful
review. Think about it: As the number of factors the Commission can consider increases,
the number of unique combinations of factors increases exponentially. Determining that
“no fair-minded person” could have made the wage-loss award requires us to consider every
combination of factors the Commission could have weighed and every combination of ways
it could have weighed them. We mention this because both parties took the trouble to
appeal the wage-loss award the Commission entered, which we now affirm.
Finally, the District offers that, if the Commission or this Court determines Judy is
permanently and totally disabled, an award of permanent total-disability benefits would be
time-barred. The Commission did not determine so, and we haven’t either. If this
limitations argument was meant for us, then we conclude, as the Commission did, that it is
moot because there is no relief to be had on the point from the District’s legal vantage point.
The Commission’s opinion is affirmed in all respects.
Affirmed on direct appeal and on cross-appeal.
BARRETT and MURPHY, JJ., agree.
Walker Law Group, PLC, by: Eddie H. Walker, Jr., for appellant.
Worley, Wood & Parrish, P.A., by: Melissa Wood, for separate appellee Clarksville
School District.