Robertson v. Pork Group, Inc.

384 S.W.3d 639, 2011 Ark. App. 448, 2011 Ark. App. LEXIS 487
CourtCourt of Appeals of Arkansas
DecidedJune 22, 2011
DocketNo. CA 11-23
StatusPublished
Cited by4 cases

This text of 384 S.W.3d 639 (Robertson v. Pork Group, 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
Robertson v. Pork Group, Inc., 384 S.W.3d 639, 2011 Ark. App. 448, 2011 Ark. App. LEXIS 487 (Ark. Ct. App. 2011).

Opinions

ROBERT J. GLADWIN, Judge.

| Appellant Brandy Robertson appeals the October 1, 2010 decision of the Arkansas Workers’ Compensation Commission finding that appellant is not entitled to temporary-total-disability (TTD) benefits from March 14, 2009, until July 19, 2009. She contends that substantial evidence does not support the Commission’s decision. We affirm the denial of benefits.

Statement of Facts

Appellant was a twenty-six-year old female who was employed by appellee Pork Group, Inc., as a hog caretaker at the time of her compensable right-ankle injury on May 22, 2008. On that date, while at work, she tripped off a step, injuring her right ankle. She was taken, as directed by appellee, to Dr. Konstantin Berestnev with Arkansas Occupational Health Clinic, who assessed her with a right-ankle sprain. An x-ray showed no fractures, and, | ?after being placed in a moon boot, appellant was advised to take anti-inflammatory, over-the-counter medication during the day and prescribed Vicodin at night, to follow up with Dr. Berestnev in one week, and to avoid climbing.

Appellant was not required to climb at work and returned to work the very next day. Appellant returned to Dr. Berestnev on May 28, 2008, and in his report of that date, Dr. Berestnev noted that appellant’s right-ankle sprain was healing, there was no ankle instability, the Achilles tendon was intact, and she was doing better. Appellant was switched from a moon boot to an air cast and was advised to continue taking anti-inflammatory medicine during the day and Vicodin at night, to do stretching exercises, and to follow up with him in two weeks.

On June 11, 2008, appellant was examined again by Dr. Berestnev, who reported no ankle instability, an intact Achilles tendon, good flexion and rotation, no significant pain, and improvement of the sprain. He then released appellant to her regular duties.

Appellant testified that she continued to have pain, and when she was unable to get a response from the human resource employee for appellee, she went to podiatrist Dr. Bryan Sheehan on July 28, 2008. Dr. Sheehan reported appellant’s chief complaint as having had bilateral-heel pain for thirteen months, with worsening pain at the end of the day. She was assessed as having Achilles tendinitis, bilateral, and calcaneal spur. Dr. Sheehan’s chart also reflected that appellant had been hurt on the job ten months beforehand. Appellant continued to see Dr. Sheehan for her bilateral-heel pain.

lsOn September 9, 2008, because of her persistent problems, she then began treatment with Dr. James Hamilton, who referred her for an MRI, which showed a right-foot, partial Achilles-tendon tear. Appellant was prescribed a walking boot and on October 21, 2008, was returned to work. She was placed in a cast on December 3, 2008.

Appellee then sent appellant back to Dr. Berestnev on January 16, 2009, and he opined that she should have a second MRI to see if there was indeed any propagation of the Achilles-tendon tear found in September. She had a second MRI, which confirmed the right Achilles-tendon partial tear. Dr. Berestnev then referred her to Dr. Terry Sites for an orthopedic evaluation. Dr. Sites diagnosed appellant with “right Achilles tendinopathy with partial tear, chronic.” He restricted appellant to sit-down duties and placed her in a non-weight-bearing cast with crutches.

In March 2009, appellant violated appel-lee’s Harassment and Discrimination Policy by repeatedly making racial comments to one of her co-workers. Further, when asked about her comments, appellant screamed and cursed at both the human resources manager and the farm manager, which violated the Rules of Conduct Policy that prohibits the use of profanity in the work place. Consequently, appellant was terminated for her actions.

Appellant continued to treat with Dr. Sites until he referred her to Dr. Jason Pleimann. On July 2, 2009, Dr. Pleimann examined appellant and recommended de-bridement and repair of her Achilles’ insertion with a calcaneal exostectomy, possible gastroc slide, and possible FHL transfer. On July 20, 2009, appellant underwent a right-insertional Achilles de-bridement and reconstruction, right leg gastrocnemius recession and exostectomy right calcaneus.

I/The Administrative Law Judge (ALJ) filed an opinion on January 19, 2010, finding that appellant failed to prove that ap-pellee is responsible for medical treatment rendered by Dr. Sheehan and Dr. Hamilton and failed to prove her entitlement to TTD benefits from March 14, 2009, until July 19, 2009. The Commission reversed the ALJ regarding appellant’s entitlement to the medical treatment by Drs. Sheehan and Hamilton and affirmed that appellant is not entitled to TTD benefits from March 14, 2009, until July 19, 2009. The only issue on appeal is whether there is substantial evidence to support the Commission’s finding that appellant failed to prove her entitlement to TTD benefits.

Standard of Review

In workers’ compensation cases, we affirm if the Commission’s decision is supported by substantial evidence — relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Walker v. Cooper Standard Auto., 104 Ark. App. 175, 289 S.W.3d 184 (2008). We review the evidence and the reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Id. Even if we might have reached a different result than the Commission, we must affirm if reasonable minds could have come to the same conclusion as the Commission. Id. It is the Commission’s duty, not ours, to weigh the evidence, to resolve any conflicts in the evidence, and to assess each witness’s credibility. Id. at 176-77, 289 S.W.3d at 186. When the Commission, as it did here in part, affirms and adopts the ALJ’s opinion, we consider both the ALJ’s decision and the Commission’s majority opinion. Fayetteville Sch. Dist. v. Kunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005).

| sStatement of Applicable Law

Temporary-total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. See, e.g., RPC, Inc. v. Hargues, 2011 Ark. App. 264, 2011 WL 1319384. The healing period is “that period for healing of an injury resulting from an accident.” Ark.Code Ann. § 11-9-102(12) (Supp.2009). To be entitled to temporary-total-disability benefits, the claimant must prove that she remains within her healing period and suffers a total incapacity to earn wages. See, e.g., Hargues, supra. The employer must also provide such medical services “as may be reasonably necessary in connection with the injury received by the employee.” Ark.Code Ann. § 11— 9-508(a) (Supp.2009).

Arkansas Code Annotated section 11-9-521(a) (Repl.2002) provides in pertinent part as follows:

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384 S.W.3d 639, 2011 Ark. App. 448, 2011 Ark. App. LEXIS 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-pork-group-inc-arkctapp-2011.