{ "id": 6136969, "name": "Ivon G. SHEPHERD v. VAN OHLEN TRUCKING and Liberty Mutual", "name_abbreviation": "Shepherd v. Van Ohlen Trucking", "decision_date": "1995-03-29", "docket_number": "CA 94-241", "first_page": "36", "last_page": "41", "citations": [ { "type": "official", "cite": "49 Ark. App. 36" }, { "type": "parallel", "cite": "895 S.W.2d 945" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "26 Ark. App. 145", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138946 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/26/0145-01" ] }, { "cite": "41 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135928 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/41/0001-01" ] }, { "cite": "19 Ark. App. 143", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6647051 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/19/0143-01" ] }, { "cite": "267 Ark. 810", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719959 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0810-01" ] }, { "cite": "856 S.W.2d 309", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6138980, 1912735 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0137-01", "/ark/314/0129-02" ] }, { "cite": "42 Ark. App. 137", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138980 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0137-01" ] }, { "cite": "38 Ark. App. 95", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137939 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark-app/38/0095-01" ] } ], "analysis": { "cardinality": 520, "char_count": 9609, "ocr_confidence": 0.893, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3474497934049437 }, "sha256": "b649d2fcf0652f88be6bfc31411a586879c9ee6f1bf56abcdc2b876135276b0a", "simhash": "1:369a394759117fe0", "word_count": 1522 }, "last_updated": "2023-07-14T19:40:19.098525+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield, J., dissents." ], "parties": [ "Ivon G. SHEPHERD v. VAN OHLEN TRUCKING and Liberty Mutual" ], "opinions": [ { "text": "James R. Cooper, Judge.\nThe appellant in this workers\u2019 compensation case was employed by the appellee trucking company on March 26, 1990, when his eighteen-wheel tractor trailer unit overturned. The appellant was injured in the accident and experienced pain in his back, right leg, and buttocks. A subsequent MRI scan revealed a herniated disc at L5-S1. The appellant was referred to a neurosurgeon for further evaluation, but the neurosurgeon decided that surgical intervention could not be considered until the appellant lost a substantial amount of weight. The appellant was referred to various medically-supervised weight loss programs and was, with this assistance, able to reduce his weight to approximately 300 pounds. These weight-loss efforts employing low calorie diets continued for over one year and, although the appellant was often successful in losing weight, he was unsuccessful in maintaining his weight loss. Consequently, the appellant\u2019s weight fluctuated between 350 and 300 pounds. On March 25, 1992, the appellees terminated the appellant\u2019s temporary total disability benefits and refused to pay for any further weight-loss treatment. The appellant sought benefits for a surgical stomach stapling procedure to aid his weight reduction efforts and reinstatement of temporary total disability benefits. After a hearing, the Commission found that the stomach stapling surgery was not reasonably necessary for treatment of the appellant\u2019s compensable injury, and that the appellant\u2019s volitional overeating had caused his healing period to end so that he was not entitled to additional temporary total disability benefits. From that decision, comes this appeal.\nFor reversal, the appellant contends that the Commission erred in finding that he had failed to prove that the proposed stomach stapling procedure was reasonably necessary for treatment of his compensable injury, and in finding that his healing period ended by March 24, 1992, disqualifying him for any additional temporary total disability benefits beyond that date. We find no error, and we affirm.\nWhere the sufficiency of the evidence to support the findings of the Commission is challenged on appeal, we view the evidence in the light most favorable to the Commission\u2019s findings and affirm if they are supported by substantial evidence. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). Where, as here, the Commission has denied a claim because of a failure to show 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).\nWith regard to the appellant\u2019s request for approval of his proposed stomach stapling procedure, the Commission noted in its opinion that the appellant had not asked for approval of more conservative measures in the alternative, but had instead limited his request to the stomach stapling surgery which he had scheduled. In denying the request, the Commission found that stomach stapling surgery was not reasonably necessary. In so finding, the Commission stated that the stomach stapling surgery was an invasive procedure, that the appellant had lost significant weight while following more conservative weight loss programs based on dietary modifications, and that there was no evidence to indicate that stomach stapling surgery was indicated prior to attempting more conservative weight loss programs. Our review of the record indicates that, although the appellant did not maintain his weight losses, he did in fact lose a considerable amount of weight while following more conservative dietary weight-loss programs. In light of this evidence, we think that reasonable minds could conclude it would be preferable to continue dietary weight loss measures rather than implement a surgical procedure with its concomitant risks. See e.g., Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, 718 S.W.2d 114 (1986). We cannot say, on this record, that the Commission\u2019s opinion fails to display a substantial basis for the denial of the stomach stapling surgery requested by the appellant and we find no error on this point.\nNext, the appellant contends that the Commission erred in finding that the appellant\u2019s healing period ended by March 24, 1992. As the appellant notes, the \u201chealing period\u201d is defined as the period necessary for the healing of an injury resulting from an accident, which continues until the employee is as far restored as the permanent character of his injury will permit. Arkansas Highway & Transportation Dept. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).\nIn the case at bar, the record shows that treatment of, and even accurate diagnosis of, the appellant\u2019s back injury was not possible unless and until the appellant lost approximately 75 to 100 pounds. Furthermore, there was evidence that the appellant was capable of losing weight through various programs based on calorie reduction, but had failed over a period of approximately one and one-half years to reduce his weight sufficiently to permit diagnosis and treatment of his underlying back injury. The appellant argues that there was evidence that the appellant\u2019s lack of success was due to a psychological eating disorder. However, the question on appeal is not whether there is evidence to support findings other than those made by the Commission, but is instead whether the findings made by the Commission are supported by substantial evidence. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). In the case at bar, the appellant testified that he regained weight because he simply began eating more after being taken off diet pills. The Commission noted that the appellant had demonstrated an ability to lose weight without diet pills, and found that the appellant\u2019s failure to lose weight was volitional. We think that the matter resolves itself to a question of credibility, and we cannot say that the Commission erred in finding that the appellant\u2019s healing period had ended in light of his failure to lose the amount of weight necessary to allow treatment of his underlying injury.\nAffirmed.\nMayfield, J., dissents.\nWe arc not faced with the question of whether the appellant would begin a new healing period were he to request more conservative weight loss treatment, and we express no opinion on that issue.", "type": "majority", "author": "James R. Cooper, Judge." }, { "text": "Melvin Mayfield, Judge,\ndissenting. I cannot agree with the majority opinion in this case.\nFirst: I assume that the opinion\u2019s statement that the appellant \u201chad not asked for approval of more conservative measures in the alternative\u201d means that he could \u2014 or probably could \u2014 have had such measures if he had asked for them. If this is what that language means, then I would remand to allow such a request to be made rather than simply affirming the Commission\u2019s denial of benefits.\nMoreover, even if the appellant has had the stomach-stapling procedure that the Commission\u2019s opinion said appellant had made arrangements to be paid for by the Arkansas Department of Health, he would be entitled to temporary total disability benefits for some period during the recovery from that procedure.\nAnd if, as the majority opinion states, \u201creasonable minds could conclude it would be preferable to continue dietary weight loss measures rather than implement a surgical procedure with its concomitant risks,\u201d would not the appellant be entitled to the \u201csurgical intervention\u201d for his herniated disk if he has lost the weight \u2014 by dietary measures \u2014 that the neurosurgeon thought necessary? But we simply affirm the Commission and make no provision for any additional hearing or determination.\nFinally, why should the appellee not pay for any disability which the appellant has as a result of his injury? As the opinion of the dissenting Commissioner points out, the law is settled that an employer takes a claimant as he finds him \u2014 and the appellant in this case weighed 300 pounds at the time of his pre-employment physical. Or is the employer relieved from paying for the disability an employee receives while working if the employee is simply unable to lose weight because \u2014 as the majority opinion puts it \u2014 the failure to do this is \u201cdue to a psychological eating disorder\u201d? We did not think so when we indicated in Weller v. Darling Store Fixtures, 38 Ark. App. 95, 828 S.W.2d 858 (1992), that Professor Larson was right when he 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 principal 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).\nI dissent.", "type": "dissent", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "David H. McCormick, for appellant.", "Friday, Eldredge & Clark, by: J. Michael Pickens, for appellee." ], "corrections": "", "head_matter": "Ivon G. SHEPHERD v. VAN OHLEN TRUCKING and Liberty Mutual\nCA 94-241\n895 S.W.2d 945\nCourt of Appeals of Arkansas En Banc\nOpinion delivered March 29, 1995\n[Supplemental Opinion on Denial of Rehearing June 28, 1995.]\nDavid H. McCormick, for appellant.\nFriday, Eldredge & Clark, by: J. Michael Pickens, for appellee." }, "file_name": "0036-01", "first_page_order": 58, "last_page_order": 63 }