{ "id": 1257722, "name": "Charles FRANCES v. GAYLORD CONTAINER CORPORATION", "name_abbreviation": "Frances v. Gaylord Container Corp.", "decision_date": "2000-06-08", "docket_number": "00-130", "first_page": "527", "last_page": "535", "citations": [ { "type": "official", "cite": "341 Ark. 527" }, { "type": "parallel", "cite": "20 S.W.3d 280" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "330 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298554 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "536-37" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/ark/330/0530-01" ] }, { "cite": "289 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875379 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "342" }, { "page": "790-91" } ], "opinion_index": 0, "case_paths": [ "/ark/289/0340-01" ] }, { "cite": "249 Neb. 112", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5281622 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "121" }, { "page": "643" }, { "page": "121" }, { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/neb/249/0112-01" ] }, { "cite": "61 Ark. App. 190", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139880 ], "weight": 10, "year": 1998, "pin_cites": [ { "page": "196-97" }, { "page": "913" }, { "page": "197" }, { "page": "913" }, { "page": "197" }, { "page": "912-13" } ], "opinion_index": 0, "case_paths": [ "/ark-app/61/0190-01" ] }, { "cite": "59 Ark. App. 85", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137261 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark-app/59/0085-01" ] }, { "cite": "328 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50383 ], "weight": 4, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0381-01" ] }, { "cite": "333 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703836 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0041-01" ] }, { "cite": "335 Ark. 356", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862761 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "361", "parenthetical": "citing Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)" }, { "parenthetical": "citing Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)" } ], "opinion_index": 0, "case_paths": [ "/ark/335/0356-01" ] }, { "cite": "932 S.W.2d 764", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1996, "opinion_index": 0 }, { "cite": "326 Ark. 541", "category": "reporters:state", "reporter": "Ark.", "year": 1996, "opinion_index": 0 }, { "cite": "328 Ark. 487", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50341 ], "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)" }, { "parenthetical": "citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0487-01" ] }, { "cite": "69 Ark. App. 26", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136629 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "30" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ark-app/69/0026-01" ] }, { "cite": "61 Ark. App. 190", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139880 ], "weight": 2, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/61/0190-01" ] } ], "analysis": { "cardinality": 778, "char_count": 16056, "ocr_confidence": 0.792, "pagerank": { "raw": 5.60004356619927e-07, "percentile": 0.9479278521643539 }, "sha256": "09ee769ba1bcc7c8ac08a9ce6d60e89b8f86771df31b95fa91bae72c75989282", "simhash": "1:2e63b42de92fd6cb", "word_count": 2555 }, "last_updated": "2023-07-14T18:03:19.609022+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CORBIN and Smith, JJ., concur in part, dissent in part.", "Smith, J., joins." ], "parties": [ "Charles FRANCES v. GAYLORD CONTAINER CORPORATION" ], "opinions": [ { "text": "W.H.\u201cDub\u201d ARNOLD, Chief Justice.\nAppellant, Charles ustice. challenging a decision of the Workers\u2019 Compensation Commission denying his claim for medical expenses and temporary total-disability benefits. In a published decision dated January 19, 2000, the Arkansas Court of Appeals reversed the Commission\u2019s decision. See Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000). Pursuant to Ark. Sup. Ct. R. 2-4 (2000), we granted review of the appellate court\u2019s decision. Viewed in the light most favorable to the Commission\u2019s decision, we hold that substantial evidence supports the denial of benefits. Accordingly, we affirm the Commission\u2019s decision because we agree that such benefits may not be awarded under the instant facts and in the absence of medical testimony sufficient to satisfy the requirements of Ark. Code Ann. section ll-9-102(16)(B) (Supp. 1999).\nThe parties agree that on September 23, 1996, Frances was injured while working for appellee, Gaylord Container Corporation. At the time of the accident, Frances had worked for appellee for approximately thirty-four years. According to Frances\u2019s testimony, on the day of the accident he was clearing away paper, broken during processing, from a paper machine when a scanner struck him on his left side, causing him to twist to the floor in an awkward motion to avoid being seriously injured. Following the accident, Frances continued to work until mid-November, when he missed two days of work.\nEventually, Frances sought medical treatment on December 2, 1996, from Dr. Clyde Paulk, who referred him to Dr. Robert D. Dickins, Jr. Following an MRI scan, Dr. Dickins diagnosed Frances with a possible herniation. Frances then began conservative treatment, including physical therapy, and continued to work full-time, until his back condition failed to improve. Ultimately, on September 3, 1997, he underwent surgery and remained off work until January 7, 1998.\nFrances\u2019s co-worker, Brian Flamblin, an eight-and-a-half-year employee who worked as third-man on the paper machine for four years, corroborated the September 23, 1996, incident. Specifically, Hamblin testified that Frances\u2019s shirt was torn and that his arm was cut following the incident. Hamblin also recalled that Frances reported the incident to supervisors and completed an accident report with the foreman. Two to three days after the accident, Hamblin observed that Frances \u201claid up on the counters\u201d because of back pain and that he began walking with a limp.\nRandy Womack, a four-year employee who worked as the fourth-hand on the paper machine in September of 1996, testified similarly. Womack reported that Frances told him that the \u201cscanner had caught him.\u201d Womack also observed that Frances\u2019s \u201carm was bleeding and his shirt was torn\u201d after the accident. Moreover, he related that three days after the accident, Frances told him that his back was hurting and he was feeling numbness in his leg.\nBobby Young, Frances\u2019s auto mechanic, testified that in November of 1996, Frances came in Young\u2019s shop \u201cwalking crooked.\u201d According to Young, Frances told him that he had an accident at work and had hurt his back. Young also added that he had been Frances\u2019s mechanic for ten years, and Frances never indicated that he had been hurt any other way.\nAfter Frances filed his claim for workers\u2019 compensation benefits, the Administrative Law Judge determined that the claim was compensable and ordered Gaylord to pay appellant related medical expenses and temporary total-disability benefits from September 3, 1997, through January 7, 1998. Gaylord appealed the ALJ\u2019s decision to the Workers\u2019 Compensation Commission, which reversed the ALJ and found that Frances had failed to prove that his back condition was the result of any work-related accident.\nNotably, the Commission also found that Dr. Dickins\u2019s opinion failed to satisfy the requirements of Ark. Code Ann. section 11-9-102(16) (B) (Supp. 1999), which provides that medical opinions addressing compensability must be stated \u201cwithin a reasonable degree of medical certainty.\u201d The relevant portion of Dr. Dickins\u2019s letter report, relating to causation, states:\nAs you are aware, the determination of onset of symptoms related to an injury is determined based on the history a patient gives the physician. The description of the injury Mr. Francis sustained is included in my consultation report dated December 6, 1996. The statement that I can make about this is that the mechanism of injury that he describes could produce a lumbar disc injury. The history given that he initially sustained back pain and then four weeks later had recurrent back and leg pain could be consistent with an injury to the disc initially, subsequently followed by the development of a herniation of that disc.\n(Emphasis added.)\nFollowing the Commission\u2019s decision reversing the ALJ\u2019s award, Frances appealed to the Arkansas Court of Appeals. The appellate court reversed and remanded the case, reasoning that the Commission had no substantial basis to deny compensability. Although the appellate court agreed that credibility determinations were left to the Commission, it submitted that the Commission was not free to arbitrarily disregard any witness\u2019s testimony. See Frances, 69 Ark. App. at 30, 9 S.W.3d at 553. From the appellate court\u2019s decision reversing the Commission, comes the instant appeal. Notably, when we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)).\nI. Substantial evidence\nAppellant\u2019s first point on appeal challenges the sufficiency of the evidence supporting the Commission\u2019s decision denying him benefits. On appeal, this court will view the evidence in the light most favorable to the Commission\u2019s decision and affirm when that decision is supported by substantial evidence. Ester v. National Home Ctrs., Inc., 335 Ark. 356, 361, 981 S.W.2d 91 (1998) (citing Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)).\nSubstantial evidence exists if reasonable minds could reach the same conclusion. Id. Moreover, we will not reverse the Commission\u2019s decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission\u2019s decision displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997).\nAlthough appellee Gaylord acknowledges that the September 23, 1996, accident occurred, it contends that Frances\u2019s injuries are not attributable to the accident. In support of its position, appellee cites instances when Frances reported other causes as the source of his condition, including statements to medical providers and insurance carriers that his injury was not work-related. For example, Gaylord points to Frances\u2019s initial statement to his treating physician that his injuries were not work-related. Next, Frances told Dr. Dickins that he had a subsequent work-related accident in November of 1996, which caused his pain. Frances also denied work-relatedness when he applied for group health benefits. Furthermore, Frances suggested to his co-worker Brian Hamblin that his back problem was caused by old age rather than a work-related accident.\nLikewise, Gaylord suggests that Frances\u2019s work history disproves a causal link between the September accident and his subsequent injuries. First, Frances continued to work full duty for nearly a year following the incident and missed only two days of work. Second, Frances delayed seeking medical treatment until December 2, 1996, more than two months after the September accident. Third, he delayed surgery until almost a year after the incident. Fourth, following a meeting with supervisors in January of 1997 to discuss his medical treatment plan, Frances informed his employer that he would handle his medical bills privately in lieu of filing a workers\u2019 compensation claim.\nIn response, Frances suggests that he elected to pay his own way because he was told that if he filed a claim, it would probably be denied and his insurance might stop paying. Apparently confused as to the consequences of signing the workers\u2019 compensation claim forms and seeing appellee\u2019s doctors, Frances opted to continue treatment with his own physicians. In any event, Gaylord argues that these facts provide substantial evidence to support the Commission\u2019s decision to deny benefits. We agree. Viewed in the light most favorable to the Commission\u2019s decision, we conclude that substantial evidence supports the denial of benefits. Accordingly, we affirm the Commission and reverse the Court of Appeals.\nII. Section 11-9-102(16)(B)\nThe second issue before us on appeal concerns the interpretation of the clause \u201cwithin a reasonable degree of medical certainty,\u201d as set forth in Ark. Code Ann. section 11-9-102(16) (B) (Supp. 1999). At the heart of the instant appeal is Dr. Dickins\u2019s report opining that the accident, as described by Frances, could have caused the herniation and need for surgery. The Commission determined that this opinion fell short of the statutory requirement that opinions must be stated within a reasonable degree of medical certainty. See Ark. Code Ann. \u00a7 ll-9-102(16)(B) (Supp. 1999). On the other hand, Frances argues that Dr. Dickins\u2019s failure to use the magic words \u201creasonable medical certainty\u201d does not, by itself, invalidate the opinion. In that vein, Frances cites the Court of Appeals\u2019 decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998).\nIn Atwood, the Court of Appeals quoted favorably from a Nebraska Supreme Court decision which explained that:\n. . . expert medical testimony based on \u201ccould,\u201d \u201cmay,\u201d or \u201cpossibly\u201d lacks the definiteness required to meet the claimant\u2019s burden to prove causation. Our well-known preference for the use of phrases \u201creasonable degree of medical certainty\u201d or \u201creasonable degree of probability\u201d is an indication to courts and parties of the necessity that medical expert opinion must be stated in terms that the trier of fact is not required to guess at the cause of the injury.\nAtwood, 61 Ark. App. at 196-97, 966 S.W.2d at 913 (quoting Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996)). Following this direct quote from the Paulsen case, the Atwood court reasoned that although the court expressed a preference for certain phrases:\n\"... an expert opinion is to be judged in view of the entirety of the expert\u2019s opinion and is not validated or invalidated solely on the basis of the presence or lack of the magic words \u2018reasonable medical certainty.\u2019 \u201d\nAtwood, 61 Ark. App. at 197, 966 S.W.2d at 913 (quoting Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996)).\nIn its petition for review, Gaylord submitted that the appellate court\u2019s decision in Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), was in conflict with Atwood. We agree. In quoting with favor from Paulsen, the Court of Appeals acknowledged in Atwood that medical opinions based upon \u201ccould,\u201d \u201cmay,\u201d or \u201cpossibly\u201d lack the definiteness required to meet the claimant\u2019s burden to prove causation. However, in conflict with that expressed position, the Atwood court determined that a physician\u2019s opinion was sufficient when he opined that although eye exams, before and immediately after the claimant\u2019s injury, would be needed to clearly associate the injury to work-related events, acid \u201ccan cause\u201d the claimant\u2019s injury. Atwood, 61 Ark. App. at 197, 966 S.W.2d at 912-13. (Emphasis added.)\nWe expressly agree with the Nebraska Supreme Court\u2019s decision in Paulsen that expert opinions based upon \u201ccould,\u201d \u201cmay,\u201d or \u201cpossibly\u201d lack the definiteness required to meet the claimant\u2019s burden to prove causation pursuant to section 11 \u2014 9\u2014 102(16(B). Accordingly, we modify and overrule the Court of Appeals\u2019 decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), to the extent that it may be read to permit expert opinion evidence under section ll-9-102(16)(B) to be satisfied by the use of terms such as \u201ccan,\u201d \u201ccould,\u201d \u201cmay,\u201d or \u201cpossibly.\u201d\nWe also note that although Atwood seemingly rejects an expert\u2019s use of the word \u201ccould\u201d when stating an opinion within a reasonable medical certainty, it validates an expert\u2019s use of the word \u201ccan.\u201d Given this inherent contradiction, it is understandable why Frances chose not to rely on the Atwood decision in support of his argument. Consequently, because Frances never cited or relied upon Atwood, we apply our limited overruling of Atwood retroactively. See Wiles v. Wiles, 289 Ark. 340, 342, 711 S.W.2d 789, 790-91 (1986); see also Looney v. Bolt, 330 Ark. 530, 536-37, 955 S.W.2d 509, 512 (1997). In conclusion, we hold that Dr. Dickins\u2019s opinion that appellant\u2019s work-related accident was the kind of event that could cause his resulting back condition was insufficient to satisfy section 11-9-102(16)(B).\nCORBIN and Smith, JJ., concur in part, dissent in part.", "type": "majority", "author": "W.H.\u201cDub\u201d ARNOLD, Chief Justice." }, { "text": "DONALD L. Corbin, Justice,\nconcurring in part; dissenting spart. tice, result reached by the majority, but I write separately to express my concern that this opinion not be so broadly construed as to preclude future workers\u2019 compensation claims simply because of the way a doctor phrases his medical opinion. As the majority correctly points out, Ark. Code Ann. \u00a7 ll-9-102(16)(B) (Supp. 1999) requires that a doctor\u2019s opinion be stated within a reasonable degree of medical certainty, but this requirement does not mean that a doctor\u2019s opinion must be stated in unequivocal terms. The practice of medicine is not an exact science. When a patient relates the history of an injury, the doctor may acknowledge that an on-the-job accident caused the injury, but the doctor may also realize that the particular injury could have resulted from other sources as well. In light of the fact that doctors generally are not present when an employee is injured, it is understandable that their opinions may be stated in less than certain terms.\nIn the present matter, I believe that the majority fails to emphasize a crucial factor common in both this case and Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), that impacts the reliability of the doctors\u2019 opinions. That factor is the lapse of time following the claimants\u2019 accidents before either of them consulted with a physician. Flere, Frances waited over two months from the time of his accident until the time he sought medical treatment. This lapse certainly contributed to the doctor\u2019s inability to state with certainty that Frances\u2019s injury was work related. Likewise, in Atwood, the doctor stated that an opthamologic exam before and immediately after the injury would be needed to clearly associate the injury with the accident sustained by the appellee at work. Clearly, the facts and circumstances present in both of these cases support a finding that a doctor\u2019s opinion stated in terms of \u201ccan,\u201d \u201ccould,\u201d \u201cmay,\u201d or \u201cpossibly\u201d do not meet the requirement of section ll-9-102(16)(B) that the opinion be stated within a reasonable degree of medical certainty. I do not believe, however, that given the right set of facts and circumstances, that a doctor\u2019s opinion will automatically fail to meet this requirement simply because of the use of one of these terms.\nConcurring in part; dissenting in part.\nSmith, J., joins.", "type": "concurrence", "author": "DONALD L. Corbin, Justice," } ], "attorneys": [ "Davis, Mitchell & Davis, by: Gary Davis, for appellant.", "Bridges, Young, Matthews & Drake PLC, by: Michael J. Dennis, for appellee." ], "corrections": "", "head_matter": "Charles FRANCES v. GAYLORD CONTAINER CORPORATION\n00-130\n20 S.W.3d 280\nSupreme Court of Arkansas\nOpinion delivered June 8, 2000\n[Petition for rehearing denied July 13, 2000.]\nDavis, Mitchell & Davis, by: Gary Davis, for appellant.\nBridges, Young, Matthews & Drake PLC, by: Michael J. Dennis, for appellee." }, "file_name": "0527-01", "first_page_order": 553, "last_page_order": 561 }