{
  "id": 6652506,
  "name": "TEC and Commercial Union Insurance Companies v. Michelle T. UNDERWOOD",
  "name_abbreviation": "TEC v. Underwood",
  "decision_date": "1991-01-30",
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  "provenance": {
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    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "TEC and Commercial Union Insurance Companies v. Michelle T. UNDERWOOD"
    ],
    "opinions": [
      {
        "text": "Melvin Mayfield, Judge.\nThis is an appeal from a decision of the Workers\u2019 Compensation Commission.\nAppellee Michelle Underwood was employed by TEC, which the opinion of the administrative law judge stated was \u201ca temporary employment company.\u201d On May 21,1987, while on a work assignment at Baldor Electric in Fort Smith, Arkansas, Ms. Underwood suffered an admittedly compensable injury to her lower back. She was paid temporary total disability benefits of $95.81 perweekfromMay21,1987, through July 17,1987, when she was released to go back to work.\nAt the hearing before the administrative law judge, the appellee contended that the proper compensation rate was $146.67 per week and that she was entitled to additional medical treatment. The appellants controverted the difference in the rate at which compensation was paid and the rate claimed by appellee and contended that all unpaid medical expense was unauthorized and therefore not their responsibility. The administrative law judge held appellee\u2019s proper compensation rate was $146.67 and that the appellants were liable for the unpaid medical treatment. The Commission affirmed and adopted the opinion of the law judge.\nThe appellee testified she was employed by TEC in February 1987 and assigned to work the \u201c3:30 to midnight shift\u201d at Calvert-McBride where she earned $3.50 per hour and worked 40 hours per week. Appellee testified she told the TEC employee who hired her that she liked Calvert-McBride, but didn\u2019t like the hours, and if something came open with better hours to \u201ckeep me in mind for it.\u201d Appellee said that toward the end of April she was told TEC had an opening at Baldor and was asked if she wanted it. Appellee testified she was told the hours were 2:00 p.m. to 10:00 p.m. daily and that she would be making $5.50 per hour. Appellee testified further that she worked at Baldor \u201cat least three weeks, closer to a month\u201d and \u201c[a]s far as I recall, I was getting 40 hours a week and I was getting $5.50 an hour.\u201d\nThe appellants argue that the Commission erroneously determined appellee\u2019s compensation rate by refusing to consider either her actual work schedule or the actual wages earned. Appellants contend the Commission ignored the plain language of the Arkansas Workers\u2019 Compensation Act. In support of this argument they rely upon the following portions of Ark. Code Ann. \u00a7 11-9-518 (1987):\n(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.\n(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.\nAppellants contend that employees of TEC are assigned from work place to work place, while still remaining an employee of TEC, and these employees \u201ccommonly exercise much more flexibility in their job schedules than the typical \u2018full-time\u2019 employee.\u201d It is argued that the appellee here worked a full 40-hour week only \u201ctwo of her seven weeks\u201d at Baldor, and the Commission should have used the actual hours she worked there instead of treating her as full-time employee. Appellants also argue that the Commission should have used a wage rate based on her employment at both Calvert-McBride and Baldor. In short, appellants contend the Commission should have used some other formula \u2014 one which would be \u201cfair and just\u201d under Ark. Code Ann. \u00a7 11 -9-518(c), supra.\nMuch of appellants\u2019 argument is based upon what they contend is a payroll record which they offered into evidence but which the law judge refused to admit because it was not properly identified and authenticated. Appellants, however, argue that this does not matter because the \u201crecord\u201d was shown to appellee on cross-examination and she admitted it was correct. Actually, the appellee was asked: \u201cAre you saying this is not correct?\u201d Her answer was: \u201cI am not saying that\u2019s not correct. I\u2019m saying as far as I remember I worked 40 hours.\u201d Appellee went on to explain that she was assigned to work at Baldor 40 hours a week at $5.50 per hour; that she worked at Baldor \u201cat least three weeks, closer to a month when I got hurt\u201d; that possibly during her employment she could have missed a couple of hours; and that she probably did work only eight hours one week because she was going to school and had final exams that week, but the rest of the weeks she worked 40 hours a week at Baldor.\nWhen reviewing a decision of the Workers\u2019 Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission\u2019s conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).\nArkansas Code Annotated \u00a7 11-9-519 (1987) provides that in cases of total disability, the injured employee shall be paid during the continuance of the total disability, compensation equal to 66 %% of his average weekly wage. Section 11-9-518(a)(1), supra, provides compensation shall be computed upon the average weekly wage earned by the employee under the \u201ccontract of hire in force at the time of the accident\u201d and in no case shall be computed on less than a \u201cfull-time work-week\u201d in the employment.\nWe think there is substantial evidence to support the Commission\u2019s finding that appellee\u2019s compensation rate was $146.67 (based upon an average weekly wage of $5.50 per hour for 40 hours), and we cannot say that the evidence shows such exceptional circumstances that the Commission\u2019s determination was not \u201cjust and fair\u201d to the appellants.\nAppellants also argue that the Commission erred in ordering them to pay the medical bills of Dr. Mertz. Appellee had been treated by Dr. Wolfe in Fort Smith and subsequently married and moved to Stillwater, Oklahoma. Without obtaining the approval of the Commission or agreement by appellants, the appellee began seeing Dr. Mertz in Oklahoma. Appellants argue they are not responsible for charges for care provided by or ordered by Dr. Mertz because appellee failed to request permission for a change of physician, the treatment received was not \u201cemergency treatment,\u201d and the Commission has no authority to retroactively approve a change of physician. In support of this argument appellants cite Wright Contracting Company v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984), and American Transportation Company v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983), where we held the Commission no longer had the discretion to retroactively approve a change of physicians and absent compliance with the statute, the employer was not liable for a new physician\u2019s services.\nHowever, these cases have no application here because Dr. Mertz\u2019s treatment was a \u201creferral\u201d rather than a \u201cchange of physician.\u201d Appellee testified that she had telephoned the office of Dr. Wolfe and asked for a referral \u201cover there,\u201d that she was told \u201cthey\u201d would talk to Dr. Wolfe and he would refer her to someone; that she was given the name of Dr. Mertz; that Dr. Wolfe sent her \u201crecords and everything to Dr. Mertz and let him know that I was going to be seeing him.\u201d The record also contains a letter from Dr. Mertz to Dr. Wolfe thanking him for referring appellee. The law judge held that appellee\u2019s request for a referral was not \u201cdoctor shopping under the circumstances.\u201d The full Commission made the same factual determination and adopted the law judge\u2019s finding. We think the Commission\u2019s decision is supported by substantial evidence and the law. See Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985).\nAffirmed.",
        "type": "majority",
        "author": "Melvin Mayfield, Judge."
      }
    ],
    "attorneys": [
      "Daily, West, Core, Coffman & Canfield, by: Eldon F. Coffman and Douglas M. Carson, for appellant.",
      "Eddie H. Walker, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "TEC and Commercial Union Insurance Companies v. Michelle T. UNDERWOOD\nCA 90-242\n802 S.W.2d 481\nCourt of Appeals of Arkansas En Banc\nOpinion delivered January 30, 1991\nDaily, West, Core, Coffman & Canfield, by: Eldon F. Coffman and Douglas M. Carson, for appellant.\nEddie H. Walker, Jr., for appellee."
  },
  "file_name": "0116-01",
  "first_page_order": 138,
  "last_page_order": 142
}