{
  "id": 6137939,
  "name": "Connie WELLER v. DARLING STORE FIXTURES",
  "name_abbreviation": "Weller v. Darling Store Fixtures",
  "decision_date": "1992-04-29",
  "docket_number": "CA 91-315",
  "first_page": "95",
  "last_page": "99",
  "citations": [
    {
      "type": "official",
      "cite": "38 Ark. App. 95"
    },
    {
      "type": "parallel",
      "cite": "828 S.W.2d 858"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "Ark. Code Ann. \u00a7 11-9-512",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1987,
      "opinion_index": 0
    },
    {
      "cite": "267 Ark. 810",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1719959
      ],
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      "year": 1979,
      "opinion_index": 0,
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        "/ark/267/0810-01"
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  "last_updated": "2023-07-14T19:57:25.403717+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Jennings and Rogers, JJ., agree."
    ],
    "parties": [
      "Connie WELLER v. DARLING STORE FIXTURES"
    ],
    "opinions": [
      {
        "text": "James R. Cooper, Judge.\nThe appellant in this workers\u2019 compensation case sustained a back injury arising out of and in the course of her employment with the appellee, Darling Store Fixtures, on February 26,1987. She was treated by back surgery on April 28, 1987, but with poor results. Subsequently, the appellant filed a claim for benefits asserting that she was totally disabled. After a hearing, the administrative law judge found that the appellant was totally disabled, but nevertheless awarded the appellant only a sum equal to 65% loss of use of the body as a whole after concluding that a portion of the appellant\u2019s total disability should be apportioned to her preexisting conditions of diabetes and obesity. On de novo review, the Workers\u2019 Compensation Commission conceded that the law judge had erroneously applied apportionment to this case, but arrived at the same result reached by the law judge by finding that the appellant had failed to prove by a preponderance of the evidence that she was permanently and totally disabled. From that decision, comes this appeal.\nFor reversal, the appellant contends that the Commission\u2019s decision was contrary to the evidence and erroneously employed a theory of apportionment. We agree, and we reverse.\nOnly a brief recitation of the facts is necessary for an understanding of the issue presented by the appellant. Prior to her injury, the appellant was obese and had been diagnosed as a diabetic. Neither condition required treatment or caused any disability until after the appellant injured her back at work on February 26, 1987. The appellant submitted to back surgery approximately two months later, but poor results were obtained.\nFollowing surgery, the appellant\u2019s diabetes worsened. Further back surgery was suggested, but the surgeon was unwilling to attempt the procedure unless the appellant lost a significant amount of weight. Twice, the appellant attempted liquid diets under medical supervision, but those diets exacerbated her diabetic condition and were discontinued. Subsequently, she attempted a more conventional diet but met with little success.\nIn cases such as the case at bar, where the Commission\u2019s denial of relief is based on the claimant\u2019s failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission\u2019s opinion displays a substantial basis for the denial of relief. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979). However, no substantial basis for denial of permanent total disability benefits is based on the finding that the appellant\u2019s disability has been worsened by her diabetes and obesity, which in turn have been exacerbated by the appellant\u2019s failure to follow the various diets prescribed for her. The commission concluded that the appellant\u2019s diabetic problems were not casually related to her injury, and that the appellee was not responsible for that portion of the claimant\u2019s permanent disability which is casually related to her diabetic condition.\nClearly, there was evidence at the hearing to show that the appellant\u2019s diabetic condition had become severe and disabling since her compensable injury. She testified that she experiences dizziness and blackouts, and that she would be unable to hold down a job because of those symptoms.\nApparently, the Commission reasoned that the appellant\u2019s work-related injury could not be totally disabling because her diabetic condition would prevent her from performing any job regardless of her back problem. We find this reasoning to be fallacious. All of the medical evidence is in agreement in concluding that the appellant is permanently and totally disabled following her back injury, and we find nothing in the record to support the Commission\u2019s conclusions that the appellant\u2019s disability would be less than total were it not for the flare up of her diabetic condition. On this record, we find no substantial basis for the Commission\u2019s conclusion that the appellant failed to prove entitlement, and we reverse.\nAdditionally, we note that the Commission considered the appellant\u2019s \u201clack of motivation to lose weight\u201d as a factor in determining the extent of her disability. Apparently, this is in reference to the appellee\u2019s contention at the hearing, based on Ark. Code Ann. \u00a7 11-9-512 (1987), that the appellant\u2019s failure to lose weight was tantamount to a refusal to submit to surgery. We find that, under the facts of this case, the Commission erred in considering the appellant\u2019s failure to lose weight in fixing the amount of compensation. It is clear from the record that the\u2019 appellant was obese prior to her injury, and that she made three attempts to lose weight upon the advice of a physician who believed that she might benefit from additional surgery but would not perform the procedure unless the appellant lost a substantial amount of weight. Thus, we are not presented with the appellant\u2019s refusal to submit to a recommended surgical procedure; the appellant asserts that she is willing to undergo the procedure if the surgeon will perform it, and her willingness to do so is uncontroverted. Instead, the Commission regarded the appellant\u2019s failure to lose weight as the equivalent of an unreasonable refusal to submit to surgery. We hold that, under these facts, the Commission erred in so doing. Professor Larson has summarized the law in this area as follows:\nWhen the treatment prescribed takes the form of exercise or wearing a brace, or undergoing an alcohol detoxification program, obviously there is no element of risk, and unreasonable refusal to follow medical instructions will lead to a loss of benefits for any disability attributable to this refusal. But when the prescribed treatment involves weight reduction, although in principle the cases should be assimilated to the exercise cases, courts have been less stern, perhaps because almost everyone has some personal experience of good-faith but ineffective weight-reduction efforts \u2014 and are reluctant to stigmatize these all-too-human failures as \u201cwillful refusal.\u201d\n1 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 13.22(d). In the case at bar, the record is devoid of facts supporting a conclusion that the appellant\u2019s weight reduction efforts were not made in good faith, and we hold that the Commission erred in concluding that her failure to lose weight was tantamount to an unreasonable refusal of surgery.\nReversed and remanded.\nJennings and Rogers, JJ., agree.",
        "type": "majority",
        "author": "James R. Cooper, Judge."
      }
    ],
    "attorneys": [
      "Branch, Thompson & Philhours, A Professional Association, by: Robert F. Thompson, for appellant.",
      "Penix, Penix & Lusby, for appellee."
    ],
    "corrections": "",
    "head_matter": "Connie WELLER v. DARLING STORE FIXTURES\nCA 91-315\n828 S.W.2d 858\nCourt of Appeals of Arkansas Division I\nOpinion delivered April 29, 1992\nBranch, Thompson & Philhours, A Professional Association, by: Robert F. Thompson, for appellant.\nPenix, Penix & Lusby, for appellee."
  },
  "file_name": "0095-01",
  "first_page_order": 115,
  "last_page_order": 119
}