{ "id": 6137889, "name": "Phillip CLAIRDAY v. The LILLY COMPANY, Employer, Royal Alliance Insurance Company, Carrier", "name_abbreviation": "Clairday v. Lilly Co.", "decision_date": "2006-04-19", "docket_number": "CA 05-696", "first_page": "94", "last_page": "100", "citations": [ { "type": "official", "cite": "95 Ark. App. 94" }, { "type": "parallel", "cite": "234 S.W.3d 347" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "93 Ark. App. 432", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142069 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/93/0432-01" ] }, { "cite": "78 Ark. App. 222", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138782 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/78/0222-01" ] }, { "cite": "79 Ark. App. 129", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138134 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/79/0129-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "pin_cites": [ { "page": "(12)" } ], "opinion_index": 0 }, { "cite": "361 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5683830 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/361/0258-01" ] }, { "cite": "82 Ark. App. 607", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143509 ], "weight": 3, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0607-01" ] }, { "cite": "82 Ark. App. 69", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137140 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0069-01" ] }, { "cite": "69 Ark. App. 162", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139177 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/69/0162-01" ] }, { "cite": "69 Ark. App. 369", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142164 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/69/0369-01" ] }, { "cite": "4 Ark. App. 124", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138664 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/4/0124-01" ] }, { "cite": "337 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240965 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/337/0524-01" ] }, { "cite": "58 Ark. App. 266", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140355 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark-app/58/0266-01" ] }, { "cite": "58 S.W.3d 853", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 2001, "opinion_index": 1 }, { "cite": "74 Ark. App. 428", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142441 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/ark-app/74/0428-01" ] }, { "cite": "93 Ark. App. 432", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142069 ], "weight": 2, "year": 2005, "opinion_index": 1, "case_paths": [ "/ark-app/93/0432-01" ] }, { "cite": "82 Ark. App. 69", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137140 ], "weight": 2, "year": 2003, "opinion_index": 1, "case_paths": [ "/ark-app/82/0069-01" ] }, { "cite": "69 Ark. App. 162", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139177 ], "weight": 2, "year": 2000, "opinion_index": 1, "case_paths": [ "/ark-app/69/0162-01" ] }, { "cite": "69 Ark. App. 369", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142164 ], "weight": 2, "year": 2000, "opinion_index": 1, "case_paths": [ "/ark-app/69/0369-01" ] } ], "analysis": { "cardinality": 632, "char_count": 12447, "ocr_confidence": 0.747, "pagerank": { "raw": 1.6499763270962405e-07, "percentile": 0.6925867106537872 }, "sha256": "e758efc7cf659ce7c5a3f2fda971a7effaba1a2183dacc0bddb742ec8f6c2bd1", "simhash": "1:bfafa4815dca31a4", "word_count": 1989 }, "last_updated": "2023-07-14T15:50:54.342319+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart, Bird, Glover and Roaf, JJ., agree.", "Gladwin, Griffen, Vaught and Crabtree, JJ., dissent." ], "parties": [ "Phillip CLAIRDAY v. The LILLY COMPANY, Employer, Royal Alliance Insurance Company, Carrier" ], "opinions": [ { "text": "Olly Neal, Judge.\nThis is an appeal from the Arkansas Workers\u2019 Compensation Commission\u2019s (Commission) decision that appellant, Phillip Clairday, failed to prove by a preponderance of the evidence that he was entitled to temporary-total-disability compensation after April 24, 2003. For reversal, appellant argues that there is no substantial basis supporting the Commission\u2019s findings that the surgery he requested was not causally related to his April 30, 2002, work-related injury. We reverse and remand.\nThe facts are these. Appellant worked for appellee Lilly as a forklift technician, mechanic, and delivery driver. On April 30, 2002, while performing employment services, appellant was injured when he reached down to release a boom on a chain and it pulled him \u201cstraight back down,\u201d immediately causing him pain in his lower back. Appellant reported the incident and was seen by a doctor on May 1. The injury was accepted as compensable and medical benefits were awarded.\nDuring his treatment, appellant saw numerous doctors. In reversing the administrative law judge and denying appellant\u2019s claim for additional temporary-total disability, the Commission stated that it gave greater weight to the opinions of Drs. Korn-blum, Sorenson, Schnapp, Gera, and Moore, stating:\nThe Full Commission recognizes that the claimant continued to receive some pain management after the end of the claimant\u2019s healing period on April 24,2003. Nevertheless, the persistence of pain does not prevent a finding that the claimant\u2019s healing period is over. Mad Butcher, Inc, v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The Full Commission also recognizes Dr. Eubanks\u2019 statement in February 2004, nearly two years after the compensable injury, that there may have been a \u201cmisdiagnosis\u201d and that the claimant might need surgery. This speculative opinion by Dr. Eubanks was never confirmed in the record. The Full Commission attaches great weight in the present matter to the expert opinions of Dr. Kornblum, Dr. Sorenson, Dr. Schnapp, Dr. Gera, and Dr. Moore. None of these physicians opined that the claimant remained within his healing period or that there had been a misdiagnosis, and Dr. Schnapp expressly opined that the claimant had reached maximum medical improvement [MMI] as of April 24, 2003. The Full Commission reverses the administrative lawjudge\u2019s award of temporary total disability compensation after April 24, 2003.\nThis appeal followed. In reviewing decisions of the Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings and affirms the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). 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. Geo Specialty, supra. It is the Commission\u2019s function to determine witness credibility and the weight to be afforded to any testimony; the Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). The Commission\u2019s resolution of the medical evidence has the force and effect of a jury verdict. Jim Walter Homes v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003).\nOur supreme court has said that \u201ctemporary total disability\u201d is that period within the \u201chealing period\u201d in which the employee suffers a total incapacity to earn wages. Fred\u2019s Inc., v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005). Our statutes define \u201chealing period\u201d as \u201cthat period for healing of an injury resulting from an accident.\u201d Ark. Code Ann. \u00a7 11-9-102(12) (Repl. 2002). The healing period ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition; 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. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).\nWe hold that substantial evidence does not support the conclusion of the Commission. The Commission stated that it gave greater weight to the opinions of Drs. Kornblum, Sorenson, Schnapp, Gera, and Moore, and it was correct in its assertion that none of them opined that appellant remained within his healing period or that there had been a misdiagnosis. However, the record does not reflect that any of these doctors, other than Dr. Schnapp, gave an opinion or were asked to give an opinion as to whether appellant had reached the end of his healing period. Nevertheless, Dr. Moore, a neurosurgeon, opined, even after it was determined that appellant had reached MMI, that \u201can EMG/Nerve Conduction Velocity Study [NCV] might be of some value as well as myelographic survey with contrasted CT if this has not already been done[.]\u201d These tests are diagnostic in nature. We recognize that the Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief and furthermore that the Commission has the authority to accept or reject medical opinions and determine their medical soundness and probative force. See Brotherton v. White River Area Agency, 93 Ark. App. 432, 220 S.W.3d 219 (2005); Jim Walter Homes v. Beard, supra. The Commission here, however, did not reject Dr. Moore\u2019s medical opinion that appellant needed further medical treatment; instead, it specifically relied on him and gave great weight to his expert opinion. As such, we hold that the Commission erred in determining that appellant failed to prove by a preponderance of the evidence that he was entitled to temporary-total-disability compensation after April 24, 2003, as he clearly was in need of the additional medical testing as recommended by Dr. Moore\u2019s expert opinion on which the Commission relied.\nReversed and remanded.\nThe EMG/NCV tests the nerves and muscles of the entire lower extremity. The EMG portion of the test is used to record the electrical activity in the muscles and can diagnose diseases of the nerves and muscles. Dr. Matthew Rockett, D.P.M., Electromyography (EMG)/Nerve Conduction Velocity (NCV), at, http://podiatrynetwork.com; see also, The Sloane-Dorland Annotated Medical-Legal Dictionary (West 1987). The NCV portion of the test evaluates the health of the peripheral nerve by recording how fast electrical impulse travels through it. Dr. Matthew Rockett, D.RM., Electromyography (EMG)/Neri>e Conduction Velocity (NCV), at, http://podiatrynetwork.com. A myelogram is done to detect narrowing of the spinal canal or abnormalities of the nerves branching off the canal, which may be caused by spinal stenosis, herniated disc, a tumor or infection; it is usually accompanied by a CT scan and may help to verify the cause of pain that could not be found by other imaging methods. Id.-, see also THE Sloane-Dorland Annotated Medical-Legal Dictionary (West 1987).", "type": "majority", "author": "Olly Neal, Judge." }, { "text": "Robert J. Gladwin, Judge,\nHart, Bird, Glover and Roaf, JJ., agree.\nGladwin, Griffen, Vaught and Crabtree, JJ., dissent.\ndissenting. I respectfully dissent. In reversing the Commission\u2019s opinion, the majority has taken on the role of fact finder. The majority\u2019s brief recitation of the facts is adequate. Our standard of review is clear. In reviewing the decisions of the Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings and affirms the decision ifit is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). 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. Geo Specialty, supra. It is the Commission\u2019s function to determine witness credibility and the weight to be afforded to any testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001). The Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. Searcy Indus. Laundry Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003).\nThe majority holds that substantial evidence does not support the Commission\u2019s conclusion that appellant had reached maximum medical improvement. In doing so, the majority simply disregarded Dr. Schnapp\u2019s opinion that appellant had reached the end of his healing period on April 24, 2003. No other doctor indicated that appellant had not reached the end of his healing period. It is well settled that the mere persistence of pain does not prevent a finding that the healing period has ended so long as the underlying condition has stabilized. See Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997).\nDr. Schnapp\u2019s April 24, 2003 report states, \u201cI believe that at the present time, he has reached maximum medical improvement. I would like to have a brief function capacity assessment, and after that, I will come up with a permanent physical impairment for him. I doubt that he will be able to lift 150 pounds lightly like he claims that he has to do at work and I told him so. I will release him to go back to work with limitations next week.\u201d On May 23, 2003, Dr. Schnapp gave appellant a five percent permanent physical impairment rating to the body as a whole. These reports clearly support the Commission\u2019s findings.\nThe majority relies on the report of Dr. Moore to find that appellant had not reached maximum medical improvement. However, Dr. Moore does not state that appellant had not reached maximum medical improvement. In his report, Dr. Moore states, \u201cI think that if Dr. Eubanks is his official physician neurosurgeon that a repeat diskogram as recommended is within his sphere of control. It might very well give some further light on this patient\u2019s problems, although I tried to point out to the patient that when the classic pattern of findings is at variance the success rate for corrective surgery falls precipitously. I do think that an EMG/Nerve Conduction Velocity Study might be of some value as well as [a] myelographic survey with contrasted CT if this has not already been done . . . .\u201d\nAssuming that Dr. Moore\u2019s statement meant that appellant had not reached maximum medical improvement, and clearly that is questionable, it was within the Commission\u2019s province to give greater weight to Dr. Schnapp\u2019s opinion that appellant\u2019s healing period had indeed ended. The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). Furthermore, the Commission has the authority to accept or reject medical opinions and determine their medical soundness and probative force. See Brotherton v. White River Area Agency on Aging, 93 Ark. App. 432, 220 S.W.3d 219 (2005). Dr. Schnapp\u2019s unequivocal opinion that appellant had reached maximum medical improvement on April 24, 2003, constituted substantial evidence to affirm the Commission\u2019s decision.\nGriffen, Vaught, Crabtree, JJ., join.", "type": "dissent", "author": "Robert J. Gladwin, Judge," } ], "attorneys": [ "John Bartlett, for appellant.", "Roberts Law Firm, P.A., by: Jeremy Swearingen and Emily A. Neal, for appellees." ], "corrections": "", "head_matter": "Phillip CLAIRDAY v. The LILLY COMPANY, Employer, Royal Alliance Insurance Company, Carrier\nCA 05-696\n234 S.W.3d 347\nCourt of Appeals of Arkansas\nOpinion delivered April 19, 2006\n[Rehearing denied May 24, 2006.]\nJohn Bartlett, for appellant.\nRoberts Law Firm, P.A., by: Jeremy Swearingen and Emily A. Neal, for appellees.\nGladwin, Griffen, Vaught, and Crabtree JJ., would grant rehearing." }, "file_name": "0094-01", "first_page_order": 120, "last_page_order": 126 }