{ "id": 6142740, "name": "David JOHNSON v. LATEX CONSTRUCTION COMPANY and Zurich American Insurance Company", "name_abbreviation": "Johnson v. Latex Construction Co.", "decision_date": "2006-03-15", "docket_number": "CA 05-1140", "first_page": "431", "last_page": "439", "citations": [ { "type": "official", "cite": "94 Ark. App. 431" }, { "type": "parallel", "cite": "232 S.W.3d 504" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "92 Ark. App. 65", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136769 ], "weight": 6, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/92/0065-01" ] }, { "cite": "90 Ark. App. 409", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141562 ], "weight": 5, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/90/0409-01" ] }, { "cite": "71 Ark. App. 410", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142697 ], "weight": 4, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/71/0410-01" ] }, { "cite": "84 Ark. App. 399", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142348 ], "weight": 4, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark-app/84/0399-01" ] } ], "analysis": { "cardinality": 792, "char_count": 17150, "ocr_confidence": 0.74, "pagerank": { "raw": 1.293272317013211e-07, "percentile": 0.6204118464049448 }, "sha256": "627b14aa5da7b3af1e2f2c8c5b9ec885bc67b9e08ff62ea53cc1c90e4f3487fd", "simhash": "1:2ca0813e15936a8a", "word_count": 2709 }, "last_updated": "2023-07-14T18:52:04.997483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bird and Crabtree, JJ., agree." ], "parties": [ "David JOHNSON v. LATEX CONSTRUCTION COMPANY and Zurich American Insurance Company" ], "opinions": [ { "text": "David M. Glover, Judge.\nAppellant, David Johnson, suffered an admittedly compensable injury to his back while working for appellee Latex Construction Company. At a hearing on July 29, 2004, the ALJ was presented with the following issues pertinent to this appeal: 1) whether appellant was entitled to additional temporary-total disability benefits, and 2) whether appellant had sustained wage loss in excess of his assigned anatomical impairment rating. The ALJ concluded 1) that appellant was not entitled to additional TTD benefits for the period beginning October 30, 2003, and ending March 4, 2004, and 2) that he was entitled to permanent impairment in the form of wage-loss disability in the amount of forty-five percent above his five-percent permanent-impairment rating to the body as a whole. The Commission modified the ALJ\u2019s wage-loss determination and concluded that appellant was only entitled to a ten-percent loss in wage-earning capacity, thereby giving him fifteen percent in total-permanent impairment. The Commission affirmed the ALJ\u2019s denial of TTD benefits beyond the date of October 30, 2003. This appeal followed. We reverse and remand for an award of benefits consistent with this opinion.\nAppellant was employed by appellee Latex Construction as a welder\u2019s helper when he sustained a compensable injury to his back on February 7, 2003, while working on a construction project in Alabama. Although appellant was a trained welder, he explained that it was easier to find regular work as a helper. Appellant was first treated for his injury by Dr. Greg Massanelli at an emergency room in Alabama. A February 13, 2003 MRI revealed \u201cmild dehydration of the discs at L3-4, L4-5 with anterior spondylitic changes and mild disc bulge at L3-4. No other abnormalities noted.\u201d After appellant returned to Arkansas, the Commission granted him a change of physician to Dr. Jeffrey DeFIaan, who eventually referred appellant to Dr. Edward Saer. Dr. Saer subsequently referred appellant to Dr. Sundar Krishnan. A second MRI was performed on July 31, 2003, as ordered by Dr. Krishnan. It revealed annular tears at L2-3, L3-4, and L4-5, along with small central protrusions at L3-4 and L4-5; however, the study revealed \u201cno definite sign of nerve root impingement.\u201d Dr. Krishnan recommended a discogram, but appellees denied the procedure. Dr. Krishnan appealed the denial, contending that the discogram results might indicate the need for intradiscal electrothermal therapy (IDET) or spinal surgery; however, the request was still denied.\nDr. Krishnan\u2019s notes reveal that he discussed appellant\u2019s condition with Dr. Charles Mauriello, an orthopedic specialist for appellees\u2019 utilization reviewer, and that they agreed the next appropriate step was facet injections. Those injections were performed on November 14, 2003; however, appellees terminated appellant\u2019s temporary-total disability benefits as of October 29, 2003, which was the day that Dr. Krishnan and Dr. Mauriello agreed that the injections were an appropriate next step. As it turned out, the injections were of no help. Appellees agreed in January 2004 to allow a discogram. Dr. Krishnan opined that the discogram and a subsequent CT exam showed mild degenerative changes at L2-3, a posterior annular tear at L3-4, and a small central disc herniation at L4-5. He noted, however, that appellant expressed pain at every level from L2 through SI, even though the L5-S1 disc appeared \u201cpretty much within normal limits.\u201d Pending a functional-capacity evaluation, Dr. Krishnan released appellant from his care on February 11, 2004, concluding that he had nothing left to offer appellant. Dr. Donald Smith performed the functional-capacity evaluation on March 1, 2004. He concluded that appellant had reached maximum-medical improvement, that he had no permanent impairment, and that he was capable of performing medium-level work. Dr. Smith\u2019s review of appellant\u2019s radiographic studies prompted him to opine that they showed \u201csome very mild degenerative changes in the L3-L4 and L4-L5 levels, which are commensurate with the patient\u2019s age and work history. These studies are essentially normal for a patient of this age group.\u201d Dr. Saer released appellant on March 5, 2004, assigning him a five-percent impairment rating to his body as a whole.\nOn July 5, 2004, a second functional-capacity evaluation was performed by Doin Dahlke. Mr. Dahlke described appellant\u2019s functional limitations, in part, as being \u201cable to sit continuously for 20-25 minutes and stand continuously for 20-25 minutes without a change in postural position. He can return to standing after a 5-10 minute sit break.\u201d Mr. Dahlke concluded that \u201cMr. Johnson demonstrated the ability to perform work activities at the LIGHT Physical Demand Classification as determined through the Department of Labor for an 8-hour day with the above limitations.\u201d\nBob White, a vocational specialist, was hired by appellant\u2019s attorneys to evaluate appellant. Mr. White concluded, in part, that \u201ca combination of age, education, limited work history (i.e., [appellant] has only done heavy unskilled work during his life) in conjunction with a back injury that has not resolved and for which there is no effective treatment, has effectively eliminated him from returning to work in any capacity.\u201d\nDale Thomas, a vocational consultant, was hired by appel-lees\u2019 attorneys to evaluate appellant. Mr. Thomas concluded:\nMr. Johnson sustained a job related injury to his lower back and has been diagnosed with low back strain. Functional Capacity Testing was performed in March and July of this year. Test results indicate that Mr. Johnson has at least the ability to perform Light work and possibly the ability to perform some types of Heavy work. However, he is not a suitable candidate to return to past work due to the Heavy nature of that work. He is capable of full time work according to the most recent FCE. Past work as a Welder\u2019s Helper has been unskilled. However, the claimant has the skills needed to perform the job of Welder. Mr. Johnson has poor literacy abilities. However, he has some ability to read, write and do simple arithmetic.\nMr. Johnson is capable of working in an unskilled job that falls within the light level of work for a full workday.\nIn reviewing decisions from the Workers\u2019 Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings, and we affirm if the decision is supported by substantial evidence. Whitlatch v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation 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. Id. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). The rules of appellate review in workers\u2019 compensation cases insulate the Commission from judicial review, and properly so, as it is a specialist in the area and this court is not. Id. However, a total insulation would obviously render the appellate court\u2019s function in reviewing these cases meaningless. Id.\nFor his first point of appeal, appellant contends that the Commission\u2019s decision to award him only a ten-percent wage-loss disability benefit is not supported by substantial evidence. We have concluded that the Commission\u2019s analysis of appellant\u2019s entitlement to wage-loss disability benefits was flawed in a critical respect, and therefore did not display a substantial basis for the denial of relief.\nAppellant\u2019s entitlement to permanent-partial disability benefits is controlled by Arkansas Code Annotated section 11 \u2014 9\u2014 522(b) (Repl. 2002), which provides:\n(b)(1) In considering claims for permanent partial disability benefits in excess of the employee\u2019s percentage of permanent physical impairment, the Workers\u2019 Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee\u2019s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity.\n(2) However, so long as an employee, subsequent to his or her injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his or her average weekly wage at the time \u2022of the accident,he or she shall not be entided to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.\nPursuant to this statute, when a claimant has been assigned an anatomical-impairment rating to the body as a whole, the Commission has the authority to increase the disability rating, and it can find a claimant totally and permanently disabled based upon wage-loss factors. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005). Wage-loss disability is the extent to which a compensable injury has affected the claimant\u2019s ability to earn a livelihood. Id. The Commission is charged with the duty of determining disability based upon consideration of medical evidence and other matters affecting wage loss, such as the claimant\u2019s age, education, and work experience. Id. In considering factors that may affect an employee\u2019s future earning capacity, the court considers the claimant\u2019s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant\u2019s loss of earning capacity. Id.\nIn its opinion, the Commission summarized its reasoning for modifying the wage-loss benefits that the ALJ had assigned to appellant:\nThe claimant is 49 years old and he has vocational education in welding although the claimant did not pursue this career. The claimant lacks motivation to return to work because he will not take a job that pays less than the $18.63 he was making before he sustained his compensable injury. The claimant refuses to move from the area where he lives even though the labor market in his area is depressed. The claimant should not be rewarded for refusing to seek employment at lesser wages and for refusing to move to an area that offers more opportunities for work. Simply put, when we consider the claimant\u2019s age, education, work experience, motivation and physical restrictions, we find that the claimant has proven by a preponderance of the evidence that he is entitled to wage loss disability benefits in the amount of 10% over and above his permanent anatomical impairment of 5% to the body as a whole thereby giving the claimant a total of 15% in permanent impairment. Accordingly, we modify the \u25a0 Administrative Law Judge\u2019s award of 45% to 10%.\n(Emphasis added.) While it was perfectly acceptable for the Commission to consider appellant\u2019s motivation to return to work in assessing his wage-loss disability, we conclude that the Commission erred in relying upon appellant\u2019s refusal to move from his geographical area as a factor establishing that he lacked motivation to return to work. That factor is more appropriately considered under subsection (2) of section ll-9-522(b) with respect to a \u201cbona fide and reasonably obtainable offer to be employed at wages equal to or greater than his or her average weekly wage at the time of the accident[.]\u201d\nIn addition, neither the parties\u2019 research, nor ours, nor the Commission\u2019s opinion has revealed an Arkansas case that addresses the geographical location of jobs in determining whether a claimant\u2019s refusal to consider jobs that are remotely located is an indication of lack of motivation. However, with respect to whether the refusal of an actual job offer is reasonable, in other jurisdictions, such \u201c[Refusals have been usually, but not always, sustained as reasonable when the proffered position required a long-distance commute or when the position only offered part-time income.\u201d Larson\u2019s Workers\u2019 Compensation Laws \u00a7 85.02 (2005).\nHere, of course, appellant was not actually offered a job in a remote location because he refused even to consider such a relocation, a fact that the Commission attributed to lack of motivation. In short, we hold that the Commission erred in analyzing the lack-of-motivation issue in that fashion, especially in light of the fact that in many jurisdictions the refusal of an actual job offer is reasonable if the job is remote in location. The Commission\u2019s determination that appellant lacked motivation to return to work seemingly formed a substantial part of the basis for its denial of wage-loss disability benefits. Because the Commission\u2019s analysis of that issue was flawed, the Commission\u2019s opinion did not display a substantial basis for the denial of relief, and we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. We therefore reverse and remand on this issue.\nFor his second point of appeal, appellant contends that he was \u201centitled to an award of temporary total disability for the period from October 30, 2003 through March 5, 2004.\u201d We agree.\nTemporary-to tal disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. Searcy Indus. Laundry, Inc. v. Ferren, 92 Ark. App. 65, 211 S.W.3d 11 (2005). When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary-total disability. Id. The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id. The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Id. These are matters of weight and credibility, and thus lie within the exclusive province of the Commission. Id.\nHere, the Commission\u2019s finding that appellant\u2019s healing period ended on the date of October 30, 2003, is not supported by substantial evidence. Rather, the Commission, in something of an after-the-fact fashion, reasoned:\nIt is clear that the claimant\u2019s healing period ended on October 30, 2003. None of the medical treatment the claimant received after October 30, 2003, improved the claimant\u2019s condition. Therefore, the claimant is not entitled to temporary total disability benefits after October 30, 2003.\n(Emphasis added.) We reject the Commission\u2019s rationale for denying appellant\u2019s temporary-total disability benefits.\nAt the time appellant was receiving the medical treatment during this period, it is clear that Dr. Krishnan hoped that it would improve appellant\u2019s condition. In addition, the treating doctors did not assign October 30, 2003, as the date upon which appellant reached maximum-medical improvement. Pending a functional-capacity evaluation, Dr. Krishnan released appellant from his care on February 11, 2004, concluding that he had nothing left to offer him. Dr. Donald Smith performed the functional-capacity evaluation on March 1, 2004. Dr. Saer found that the healing period ended on March 5, 2004.\nIn summary, we hold that the Commission\u2019s analysis of this issue was flawed in that it based its decision on the fact that none of the procedures after October 29, 2003, were successful in treating appellant\u2019s condition rather than deciding the issue on the medical evidence that was presented, which showed that appellant remained within his healing period and was being treated with the goal of improving his medical condition. Because the Commission\u2019s analysis of this issue was also flawed, its opinion did not display a substantial basis for the denial of this relief either, and we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. We therefore reverse and remand on this issue.\nFor his final point of appeal, appellant contends that he is \u201centitled to continued medical treatment for his pain.\u201d This issue is moot. The ALJ found in appellant\u2019s favor on this issue, and appellees did not appeal the issue to the Commission. Therefore, the ALJ\u2019s decision on this point remains intact.\nReversed and remanded.\nBird and Crabtree, JJ., agree.", "type": "majority", "author": "David M. Glover, Judge." } ], "attorneys": [ "Harrelson, Moore & Giles, L.L.P., by: Greg Giles, for appellant.", "Wright, Lindsey &Jennings, LLP, by: LeeJ. Muldrow and Gary D. Marts, Jr., for appellees." ], "corrections": "", "head_matter": "David JOHNSON v. LATEX CONSTRUCTION COMPANY and Zurich American Insurance Company\nCA 05-1140\n232 S.W.3d 504\nCourt of Appeals of Arkansas\nOpinion delivered March 15, 2006\nHarrelson, Moore & Giles, L.L.P., by: Greg Giles, for appellant.\nWright, Lindsey &Jennings, LLP, by: LeeJ. Muldrow and Gary D. Marts, Jr., for appellees." }, "file_name": "0431-01", "first_page_order": 465, "last_page_order": 473 }