{ "id": 6141310, "name": "Tracy NIX v. WILSON WORLD HOTEL", "name_abbreviation": "Nix v. Wilson World Hotel", "decision_date": "1994-07-06", "docket_number": "CA 93-797", "first_page": "303", "last_page": "311", "citations": [ { "type": "official", "cite": "46 Ark. App. 303" }, { "type": "parallel", "cite": "879 S.W.2d 457" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "14 Ark. App. 88", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137783 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/14/0088-01" ] }, { "cite": "45 Ark. App. 144", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6656350 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/45/0144-01" ] }, { "cite": "45 Ark. App. 87", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6655164 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/45/0087-01" ] }, { "cite": "42 Ark. App. 168", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139410 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0168-01" ] }, { "cite": "40 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137880 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0108-01" ] }, { "cite": "38 Ark. App. 248", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140907 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark-app/38/0248-01" ] }, { "cite": "45 Ark. App. 87", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6655164 ], "weight": 2, "year": 1994, "opinion_index": 1, "case_paths": [ "/ark-app/45/0087-01" ] } ], "analysis": { "cardinality": 635, "char_count": 15496, "ocr_confidence": 0.874, "pagerank": { "raw": 2.307900074841055e-07, "percentile": 0.7881335938890646 }, "sha256": "1d749b05c68eda75aad9070e16fdc7203d48f132175aa72cf895fb373de8d173", "simhash": "1:20bf426d1b6e09e1", "word_count": 2508 }, "last_updated": "2023-07-14T21:17:20.155315+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, Cooper and Mayfield, JJ., dissent." ], "parties": [ "Tracy NIX v. WILSON WORLD HOTEL" ], "opinions": [ { "text": "Judith Rogers, Judge.\nThis is an appeal from the Workers\u2019 Compensation Commission\u2019s decision finding that appellant failed to prove by a preponderance of the evidence that the surgery which was performed on her knee was causally related to her compensable injury or that she was entitled to additional temporary total disability benefits through September 19, 1991. On appeal, appellant contends that there is no substantial evidence to support the Commission\u2019s decision. We disagree and affirm.\nAppellant was employed by appellee as an auditor. She suffered a compensable injury to her knee on April 11, 1990, when she attempted to jump over a puddle at appellee\u2019s hotel. Appellee accepted the claim as compensable and paid temporary total disability benefits through July 20, 1990. Appellant filed a claim contending she was entitled to additional benefits for temporary total disability. The administrative law judge agreed and awarded additional benefits for temporary total disability benefits through a date yet to be determined. The Commission reversed, finding that appellant was not entitled to temporary total disability benefits through a date yet to be determined. The Commission remanded the case back to the ALJ for a determination of when appellant\u2019s healing period had ended.\nBefore the ALJ heard the case on remand, appellant received additional medical treatment and underwent surgery on her knee. On remand, the ALJ found that appellant was entitled to temporary total disability benefits from the date of her injury through September 19, 1991. The ALJ also found that appellee was responsible for medical treatment provided to appellant, including the surgery on her knee. The Commission reversed, finding that appellant was only entitled to temporary total disability benefits through August 30, 1990. The Commission also found that the surgery performed on appellant\u2019s knee was not causally related to her compensable injury.\nWhere 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. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992). 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. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993).\nAppellant argues that she remained in her healing period after August 30, 1990, because she had not reached her maximum healing and had been released to work with restrictions established for her by her treating physicians; therefore she contends that she is entitled to temporary total disability benefits until September of 1991.\nTemporary disability is that period within the healing period in which an employee suffers a total or partial incapacity to earn wages. The healing period is defined as that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. The determination of when the healing period ends is a factual determination to be made by the Commission. Thurman v. Clarke Indus., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). The Commission also has the duty of weighing the medical evidence as it does any other evidence, and resolving any conflict is a question of fact for the Commission. Chamberlain Group v. Rios, 45 Ark. App. 144, 871 S.W.2d 595 (1994).\nThe record reflects that on August 29, 1990, Dr. Banks Blackwell found that appellant\u2019s knee had no effusion, and had full range of motion. He released appellant to return to work on August 30, 1990, with the use of one crutch. On October 10, 1990, Dr. Blackwell expressed the belief that appellant\u2019s primary problem was depression. The dissent points out that in that report Dr. Blackwell also opined that appellant had not reached her maximum healing because she will improve with \u201csome type of gainful employment, weight reduction and counseling.\u201d According to Dr. James S. Mulhollan, Dr. Blackwell felt that the healing of \u00e1ppellant\u2019s knee had occurred, but he thought her subjective feelings and subjective symptoms would improve if she were able to work, lose weight and receive counseling. Dr. Blackwell also noted that appellant had an anterior cruciate ligament deficiency from an old injury and that weight loss was absolutely necessary. Dr. Blackwell\u2019s notes indicate that appellant was approximately fifty pounds overweight. Dr. Blackwell did not have any other recommendations for appellant\u2019s compensable injury other than pain abatement. The record also indicates that in October 1990 Dr. Blackwell could find no justification for assigning a rating for a permanent physical impairment for appellant as a result of her compensable injury.\nIn Dr. Mulhollan\u2019s letter dated July 17, 1990, he indicated that Dr. Blackwell had reported that appellant had a contusion on her knee. Dr. Mulhollan believed that appellant could return to work and that her injury on the job did not do any structural damage to her knee. In fact, Dr. Mulhollan opined that the com-pensable injury had simply caused her to undergo an \u201cinhibition of muscle function\u201d. He noted that appellant may have to use crutches, and if that were the case, she would probably need a back pack to carry items around the work place. According to Dr. Mulhollan, the use of the crutches would help appellant utilize a normal gait. He also believed that the use of the crutch prescribed by Dr. Blackwell could have been for the patient\u2019s peace of mind because it would make her less likely to fall. As of July 17, 1990, Dr. Mulhollan found that appellant did not have any impairment as a result of her compensable injury.\nAppellant testified that Dr. Blackwell allowed her to use crutches for her peace of mind. She also stated that she had been performing odd jobs, such as babysitting, since she had been released by Dr, Blackwell on August 30, 1990. The dissent notes that appellant was not allowed to go back to work under the conditions mandated by Dr. Blackwell and that this was admitted. We note that the record does not contain any admission by appellee that appellant was not allowed to return to work. Appellant testified that she was not allowed to return to work and this was not controverted by any other evidence in the record. However, it is well settled that a party\u2019s testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985).\nThe Commission concluded that appellant had failed to meet her burden of proving that she remained within her healing period subsequent to August 30, 1990, because nothing further in the way of treatment would improve her condition. The Commission is the finder of fact and it did not accept the subjective feelings of pain by appellant and her doctor\u2019s acquiescence to these complaints as evidence that appellant\u2019s healing period had not ended on August 30, 1990. The Commission found that Dr. Blackwell released appellant to return to work on August 30, 1990, and that Dr. Blackwell found that appellant suffered no permanent disability as a result of her compensable injury. The Commission also relied on Dr. Mulhollan\u2019s opinion that appellant had no permanent disability as a result of her compensable injury. We cannot say that there is no substantial basis for the Commission\u2019s finding.\nAppellant also challenges the Commission\u2019s finding that there was insufficient credible evidence of record proving that the treatment subsequent to August 30, 1990, including surgery, was causally related to appellant\u2019s original compensable injury.\nThe record reflects that appellant\u2019s treatment and surgery subsequent to August 30, 1990, was for instability in her knee. Dr. Blackwell and Dr. Mulhollan\u2019s records indicate that appellant\u2019s knee showed very little instability after her compensable injury. More specifically, Dr. Mulhollan reported that appellant had a mild level of instability. He believed the instability was due to the ligament injury that appellant had sustained in 1980. Dr. Mulhollan said that appellant\u2019s knee had been unstable for eleven years and the appellant\u2019s, work-related accident did not have any effect on that pre-existing instability. The record further indicates that surgery performed by Dr. Kenneth Martin was to correct appellant\u2019s pre-injury knee problem back in 1980-81.\nThe Commission found that there was insufficient credible evidence proving that the appellant\u2019s knee instability and subsequent surgery was causally related to appellant\u2019s compensable injury. The Commission stated that the medical records from Dr. Mulhollan and Dr. Blackwell immediately after the appellant\u2019s compensable injury showed that there was very little instability in the appellant\u2019s knee. According to the Commission, it was not until much later that appellant suffered from a significant amount of instability that surgery was performed by Dr. Martin. Therefore, the Commission concluded that appellee was not liable for the medical treatment provided after August 30, 1990. After reviewing the record, we cannot say that there is no substantial basis for the Commission\u2019s denial of medical benefits.\nAffirmed.\nRobbins, Cooper and Mayfield, JJ., dissent.", "type": "majority", "author": "Judith Rogers, Judge." }, { "text": "James R. Cooper, Judge,\ndissenting. I agree with Judge Mayfield\u2019s dissent, and write separately only to emphasize that my disagreement with.the majority is based on the absence of substantial evidence to show that the appellant\u2019s healing period had ended.\nAs the majority notes, the determination of when the healing period ends is a fact question for the Commission to make by weighing the evidence and resolving any conflicts therein. Thurman v. Clarke Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). Nevertheless, the Commission\u2019s authority to weigh the evidence, medical or otherwise, does not permit it to arbitrarily disregard the testimony of any witness. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). It is clear to me that the Commission arbitrarily disregarded Dr. Blackwell\u2019s statements to the effect that the appellant had not yet reached maximum healing. On this basis, I conclude that the Commission\u2019s opinion is not supported by substantial evidence.", "type": "dissent", "author": "James R. Cooper, Judge," }, { "text": "Melvin Mayfield, Judge,\ndissenting. I cannot agree with the result reached by the majority opinion in this case. I agree there is substantial evidence to support the Commission\u2019s decision that Dr. Martin\u2019s surgery in May of 1991 was not related to the April 1990 compensable injury. However, I do not agree that there is substantial evidence to support the Commission\u2019s decision that appellant\u2019s temporary total disability from the April 1990 injury ended on August 30, 1990.\nDr. Blackwell\u2019s record of April 18, 1990, states that appellant was injured while working on April 11, 1990, and that the emergency room doctor had recommended non-weight bearing crutches. On May 30, 1990, Dr. Blackwell recorded that appellant had been given a no-work slip on May 18, 1990. He reported on June 20, 1990, that appellant\u2019s knee was improving, but, \u201cI feel it would be unsafe for her to attempt returning to work at this time.\u201d On July 18, 1990, he recorded that appellant was not strong enough to return to work and recommended that she continue Clinoril, Prozac and Amitriptyline and continue working out on a knee machine and exercise at home. And on August 29, 1990, he recorded that appellant was returned to full duty status on August 30, 1990, but \u201cmust use one crutch.\u201d (Emphasis added.) Dr. Blackwell did not testify in this case, but his office record dated August 29, 1990, stated that he also recommended that she avoid squatting, lifting more than twenty-five pounds, and working overhead. He said that he thought she would initially have weakness and difficulty standing for eight hours but standing and working should increase her strength.\nWe would not have any problem with the end of the period of temporary total disability benefits, except that the appellee would not let appellant go back to work under the conditions mandated by Dr. Blackwell. This is admitted, and Dr. Blackwell\u2019s office note of September 12, 1990, states that it is regrettable that she was not allowed to return to work as this was a very important part of her rehabilitation which would now be more difficult. Then, Dr. Blackwell\u2019s office note of October 10, 1990, states, \u201cI do not feel she has reached her maximum healing as she will improve with returning to some type of gainful employment, weight reduction and counseling.\u201d\nThe record also contains a deposition and some reports from Dr. James S. Mulhollan, an orthopaedic surgeon who examined appellant only one time. In a report dated July 17, 1990, he stated:\nI reviewed the patient\u2019s job requirements and it would appear to me there is no reason why she could not return to work even at this or at some very quick date. She may have to use crutches and if that is the case, she will probably need a backpack to carry items around the workplace. At home, she might try using a walker with a basket. She should wear an immobilizer at night, learn how to do terminal muscle sets, use a 3:1 gate pattern and swim since that would encourage muscle activity. As soon as she is able she should begin stationary bicycling[.] It is my projection that if she will do this program she will very quickly improve and get back to her pre-injury status.\n(Emphasis added.)\nI do not see how the majority can say that appellant has reached her maximum healing from her work-related injury when she will have to be on crutches and wear a backpack to carry books and supplies around the workplace, put on an immobilizer at night, and take extensive exercise and physical therapy. Moreover, in the final paragraph of the Commission\u2019s opinion it is stated that \u201cwe find that claimant was entitled to temporary total disability through August 30, 1990, the date Dr. Blackwell released her to return to full duty.\u201d As I have pointed out, Dr. Blackwell\u2019s report of August 29, 1990, states she was returned \u201cto full duty status on August 30, 1990.\u201d (Emphasis added.) However, he said she \u201cmust use one crutch\u201d and recommended that she avoid squatting, lifting more than twenty-five pounds, and working overhead. That is not a release \u201cto return to full duty\u201d and the Commission\u2019s statement is simply not supported by the record. Furthermore, Dr. Blackwell\u2019s office note of October 10, 1990, as I have quoted above says, \u201cI do not feel she has reached her maximum healing . . . .\u201d\nTherefore, I cannot agree that the Commission\u2019s decision finding appellant\u2019s temporary total disability ended on August 30, 1990, is supported by substantial evidence. I would reverse and remand on this point.\nRobbins and Cooper, JJ., agree.", "type": "dissent", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "Baim, Gunti, Mouser, DeSimone & Robinson, by: William Kirby Mouser, for appellant.", "Friday, Eldredge & Clark, by: J. Michael Pickens, for appellee." ], "corrections": "", "head_matter": "Tracy NIX v. WILSON WORLD HOTEL\nCA 93-797\n879 S.W.2d 457\nCourt of Appeals of Arkansas En Banc\nOpinion delivered July 6, 1994\nBaim, Gunti, Mouser, DeSimone & Robinson, by: William Kirby Mouser, for appellant.\nFriday, Eldredge & Clark, by: J. Michael Pickens, for appellee." }, "file_name": "0303-01", "first_page_order": 333, "last_page_order": 341 }