{ "id": 5683830, "name": "FRED'S, INC. and Royal & Sun Alliance Ins. Co. v. Deborah JEFFERSON", "name_abbreviation": "Fred's, Inc. v. Jefferson", "decision_date": "2005-03-31", "docket_number": "04-1085", "first_page": "258", "last_page": "267", "citations": [ { "type": "official", "cite": "361 Ark. 258" }, { "type": "parallel", "cite": "206 S.W.3d 238" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "341 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257704 ], "weight": 2, "year": 2000, "pin_cites": [ { "parenthetical": "this court will not consider the merits of an argument if the appellant fails to cite convincing legal authority in support of that argument" }, { "parenthetical": "this court will not consider the merits of an argument if the appellant fails to cite convincing legal authority in support of that argument" } ], "opinion_index": 0, "case_paths": [ "/ark/341/0005-01" ] }, { "cite": "344 Ark. 656", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210179 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "we do not consider an argument made without convincing argument or citation to authority to support it, where it is not apparent without further research that these arguments are well-taken" }, { "parenthetical": "we do not consider an argument made without convincing argument or citation to authority to support it, where it is not apparent without further research that these arguments are well-taken" } ], "opinion_index": 0, "case_paths": [ "/ark/344/0656-01" ] }, { "cite": "74 Ark. App. 159", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139290 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/74/0159-01" ] }, { "cite": "272 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174871 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0244-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 11", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "343 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226524 ], "weight": 7, "year": 2000, "pin_cites": [ { "page": "281" }, { "page": "171", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/ark/343/0276-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "pin_cites": [ { "page": "(4)", "parenthetical": "D" }, { "page": "(4)(A)(i)" }, { "page": "(4)(D)" }, { "page": "(12)" } ], "opinion_index": 0 }, { "cite": "89 Ark. App. 95", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137735 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "99" }, { "page": "479", "parenthetical": "quoting Physicians' Desk Reference 572 (56th ed. 2002)" } ], "opinion_index": 0, "case_paths": [ "/ark-app/89/0095-01" ] } ], "analysis": { "cardinality": 723, "char_count": 17390, "ocr_confidence": 0.735, "pagerank": { "raw": 1.1120856795891636e-07, "percentile": 0.5709448697588161 }, "sha256": "754e2b5096f3634fde0418e3f0fd7d4eac7f15c170b56bdf2d18e5880dfe0cc8", "simhash": "1:2b83e0ee68cf218c", "word_count": 2818 }, "last_updated": "2023-07-14T21:38:22.368604+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRED\u2019S, INC. and Royal & Sun Alliance Ins. Co. v. Deborah JEFFERSON" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellants Fred\u2019s, Inc. and its insurer, Royal & Sun Alliance Ins. Co., appeal from an opinion and order of the Workers\u2019 Compensation Commission, which found that appellee Deborah Jefferson sustained a compensable injury in the course of her employment on April 25, 2002; that Jefferson remained in her healing period and was unable to earn wages from April 26, 2002 through May 27, 2002; and that Fred\u2019s is responsible for all reasonable and necessary medical treatment that Jefferson claimed. We affirm the opinion and order of the Commission.\nDeborah Jefferson lived in Osceola and worked for Fred\u2019s from August 1997 until she was fired on June 10, 2002. She was employed as a \u201cstock person,\u201d which required her to \u201cunload the trucks.\u201d That work involved her bending and stooping and lifting objects and also pushing and pulling objects, while remaining on her feet all day.\nOn April 25, 2002, Jefferson\u2019s manager asked her to retrieve some boxes from \u201cupstairs\u201d at the store. Jefferson attempted to comply by standing on a four-foot aluminum ladder, which collapsed while she was standing on it and caused her to land on her back on the concrete floor. Jefferson informed her assistant manager, Ruth Ware, about the accident. Ware directed her to see Dr. Brewer Rhodes.\nOn that same day, Dr. Rhodes diagnosed Jefferson with a contusion and strain of her spine and prescribed medication for her treatment, including Flexeril, and physical therapy for two weeks. Jefferson complied with the physical therapy, yet still complained of pain. Dr. Rhodes issued work-restriction certificates that prohibited Jefferson from returning to work until May 27, 2002. Jefferson filed a claim for workers\u2019 compensation with Fred\u2019s workers\u2019 compensation insurance company, and the company denied it.\nAn Administrative Law Judge (ALJ) next heard Jefferson\u2019s claim and issued an order and opinion awarding Jefferson benefits from April 26 through May 27, 2002, for temporary total disability. Fred\u2019s appealed that order to the Commission, which affirmed the ALJ\u2019s order by a vote of two to one. Fred\u2019s appealed to the court of appeals, which affirmed the Commission\u2019s order in an unpublished opinion. See Fred\u2019s Inc. v. Jefferson, CA 04-166 (Ark. App. Sept. 22, 2004). Later, the court of appeals published a substituted opinion on denial of rehearing that also affirmed the Commission\u2019s order and cited to the Physicians\u2019 Desk Reference for the use of Flexeril, which was not adduced by either party in the briefs in this appeal. See Fred\u2019s Inc. v. Jefferson, 89 Ark. App. 95, 200 S.W.3d 477 (2004).\nFred\u2019s filed an amended petition for review with this court raising several issues, including the absence of objective medical findings to prove the injury and violation of due process because the court of appeals relied on the Physicians\u2019 Desk Reference, although neither party had cited it, argued it, or made it part of the record. We granted the petition.\nFred\u2019s first contends on appeal that the Commission erred in concluding that Jefferson sustained a compensable injury, because she failed to produce medical evidence supported by \u201cobjective findings,\u201d as required by Ark. Code Ann. \u00a7 11-9-102(4) (D) (Repl. 2002). Fred\u2019s further urges that the Commission erroneously relied on the ALJ\u2019s speculation that medicine prescribed to Jefferson was for muscle spasms, because no physician or physical therapist reported witnessing or feeling Jefferson\u2019s muscle spasms.\nWhen we grant a petition for review, we consider a case as though it had been originally filed in this court. See Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). We also view the evidence in a light most favorable to the Commission\u2019s decision, and we uphold that decision if it is supported by substantial evidence. Id. We will not reverse the Commission\u2019s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.\nA \u201ccompensable injury\u201d is defined under the Workers Compensation Code as\nAn accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is \u201caccidental\u201d only if it is caused by a specific incident and is identifiable by time and place of occurrence!.]\nArk. Code Ann. \u00a7 11-9-102(4)(A)(i) (Repl. 2002). Section 11-9-102(4) of the Code further provides that a compensable injury must be established by medical evidence supported by \u201cobjective findings.\u201d See Ark. Code Ann. \u00a7 11-9-102(4)(D) (Repl. 2002). The Code defines \u201cobjective findings\u201d as those \u201cwhich cannot come under the voluntary control of the patient.\u201d Ark. Code Ann. \u00a7 11 \u2014 9\u2014 102(16)(A)(i) (Repl. 2002).\nIn the case of Estridge v. Waste Management, supra, this court reversed the Commission\u2019s denial of a claimant\u2019s benefits and held that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. In Estridge, the claimant reported a back injury that occurred on the job to his employer and was referred to a physician, who diagnosed the claimant with low back strain and radicular pain. The physician failed to document any objective medical findings to support the diagnosis but prescribed Valium \u201cas needed for muscle spasms.\u201d Ultimately, the Commission denied the claimant benefits, finding that there were no objective findings to support an injury while at work.\nOn appeal, this court stated that muscle spasms can constitute objective medical findings to support compensability and that muscle spasms detected by someone other than a physician, such as a physical therapist, can be sufficient as well, because this is a perception of injury by someone other than the claimant. The Commission in Estridge concluded, however, that there was no observation of muscle spasms in the claimant, because the prescription for Valium \u201cas needed for muscle spasm\u201d was a direction and not a finding of the presence of muscle spasms. This court disagreed and said:\nIt was undisputed that appellant [claimant] sustained an accidental injury- at work and was diagnosed initially with back strain and received medication. What is disputed is whether appellant presented proof of objective medical evidence and whether there was a causal connection between the injury and the medical treatment. We hold that appellant did present proof of objective medical evidence and that there was a causal connection between the injury and the medical treatment, for the following reasons.\nFirst, he was indisputably diagnosed with back strain for which he received medication after the crosstie incident. The medication was directed \u201cas needed for muscle spasm\u201d which the Commission dismissed as a direction to appellant rather than a medical finding. We find the Commission\u2019s dismissal of this fact to be absurd. A doctor would not prescribe medication directed to be taken \u201cas needed for muscle spasm\u201d if he did not believe muscle spasms were existent.\nEstridge, 343 Ark. at 281, 33 S.W.3d at 171 (emphasis in original).\nIn the case at bar, the ALJ found that Jefferson and Fred\u2019s had an employee-employer relationship on April 25, 2002, and that Jefferson presented credible, unrefuted testimony about falling from the ladder at Fred\u2019s. The ALJ further found:\nDr. Rhodes\u2019 notes indicate on April 29, 2002, that \u201cRuth Ware ok\u2019d\u201d and the treatment was a sonulator.... Dr. Rhodes\u2019 April 25, 2002, report reveals that the claimant \u201cfell off ladder and back and neck landed on back on concrete floor.\u201d ... I find this contemporaneous medical report corroborates the claimant\u2019s account of the accident. Dr. Rhodes diagnosed the claimant with a T-L contusion/strain and prescribed Celebrex and Flexeril and physical therapy. The claimant sought emergency room care on September 30, 2002, and was complaining of muscle spasms in her back. The doctor\u2019s notes, while difficult to read, indicate some problem with the paraspinous muscle and chugs were prescribed to include Flexeril, a muscle relaxer and pain medication.\nThe ALJ concluded that the \u201cmedical evidence provides the necessary requirements for objective findings.\u201d After Fred\u2019s appealed to the Commission, the Commission conducted a de novo review of the record and then, in a vote of two to one, affirmed the ALJ\u2019s opinion, including all findings of fact and conclusions of law.\nWe agree with the ALJ\u2019s findings and hold that substantial evidence was presented that Jefferson suffered an \u201caccidental injury,\u201d as defined by \u00a7 ll-9-102(4)(A)(i), and that substantial evidence was presented that Jefferson\u2019s compensable injury was established by medical evidence supported by \u201cobjective findings,\u201d as required by \u00a7 11-9-102(4)(D). Jefferson testified that she fell from a ladder while attempting to move boxes at work. Dr. Brewer Rhodes examined Jefferson on April 25, 2002, diagnosed her with \u201cT-L contusion/strain,\u201d examined her \u201cT-spine\u201d and \u201cL-spine,\u201d prescribed Jefferson with Celebrex and Flexeril, and ordered that Jefferson not engage in bending or lifting more than ten pounds and that she should have a \u201csitting job only.\u201d\nDr. Rhodes\u2019s notes also reflect that on April 29, 2002, Dr. Rhodes examined Jefferson again, ordered a \u201csonulator\u201d and stated that \u201cRuth Ware [assistant manager] OK\u2019d\u201d the order. His notes further state that Jefferson complained of continued pain, and he scheduled an MRI of her \u201cL-spine.\u201d In addition, Dr. Rhodes\u2019s notes read that on May 9, 2002, he examined Jefferson and prescribed medication and physical therapy three times a week for two weeks. He added that Jefferson may work at a \u201csittingjob\u201d without lifting, bending, or prolonged standing and that she should continue taking Celebrex. On May 15, 2002, he wrote that Jefferson should continue physical therapy.\nJefferson\u2019s evidence of a \u201ccompensable injury\u201d was corroborated by an emergency room record from September 30, 2002, in which it was noted that Jefferson complained of back pain and muscle spasms in her lower back from an \u201cold injury.\u201d The emergency room record showed that Jefferson was examined, that something was wrong with her bilateral paraspinous muscle, and that she was treated with Vistaril, Lorcet Plus, Flexeril, and Prednisone. She was also given a prescription for Celebrex.\nThe facts in this case are akin to those in Estridge. It is undisputed that Jefferson sustained an accidental injury at work and was diagnosed on April 25, 2002, with a back bruise and a strain of her back. As treatment, medication including Flexeril and physical therapy were prescribed. What is disputed here, as was the case in Estridge, is whether Jefferson presented proof of objective medical evidence and whether there was a causal connection between the injury and the medical treatment. This case is distinguishable from Estridge, however, in that Dr. Rhodes did not indicate specifically what the medications were for or specifically why he prescribed physical therapy. Yet, following the logic expressed in Estridge, a reasonable inference from the chronology of events is that the medication and physical therapy were prescribed to aid Jefferson and to treat her injury. Any other construction of these events does not withstand scrutiny or pass the test of reasonableness. We affirm the Commission\u2019s order.\nFred\u2019s next contends that the Commission erred in awarding Jefferson temporary total disability benefits from April 25 to May 27, 2002, because Jefferson failed to present evidence that she was in her \u201chealing period,\u201d as defined by Ark. Code Ann. \u00a7 11-9\u2014 102(12) (Repl. 2002), or that she was totally incapacitated from earning wages. To support these arguments, Fred\u2019s again claims that Jefferson failed to show any objective findings of an injury and that she failed to present evidence to indicate that her pre-injury position at Fred\u2019s was outside her work restrictions, that she was unable to secure another position at Fred\u2019s within her restrictions, or that she would have been more capable of working after she started looking for work on June 10, 2002, than while she was employed by Fred\u2019s.\nThis 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. See Arkansas State Hwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Our Workers\u2019 Compensation Code defines a \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).\nThe ALJ found that Fred\u2019s was responsible for all reasonable and necessary medical treatment that Jefferson pursued and that Jefferson proved by a preponderance of the evidence that she remained in her healing period and was unable to earn wages from April 26 through May 27, 2002. Specifically, the judge wrote:\nIn the present case, the claimant presented credible testimony about her inability to work following her April 25,2001, [sic] fall off the ladder. The record is further supplemented with medical evidence and off work slips with a May 15,2002, note from Dr. Rhodes taking the claimant off work until May 27,2002, specifically stating \u201cno work.\u201d... Dr. Rhodes had provided work certificates on other occasions where he had placed the claimant under limitations of \u201cno lifting, bending or standing and only a sitting job.\u201d The employer did not return the claimant to work with those restrictions because the nature of the claimant\u2019s job required all those activities that the doctor had placed on restriction. I find the claimant has proven by a preponderance of the evidence that she remained in her healing period and was unable to earn wages from April 26, 2002 through May 27,2002____\nAgain, the Commission conducted a de novo review and adopted the ALJ\u2019s findings of fact.\nWe hold that Jefferson presented substantial evidence that she was temporarily totally disabled from the time of injury until the day she was released to return to work on May 27, 2002. Specifically, Jefferson testified that her job as a stock person required her to bend, stoop, lift, push, pull, and be on her feet all day. In the past, she also worked at Fred\u2019s at times as a cashier. However, Jefferson testified that Fred\u2019s did not have a sitting job available during her healing period. The evidence shows that Dr. Rhodes issued a certificate on April 25, 2002, stating that Jefferson was able to return to work on April 29, 2002, but could not bend or lift anything greater than ten pounds and that she was restricted to a sitting job for three days. In addition, Dr. Rhodes certified on May 9, 2002, that Jefferson could not lift, bend, or stand, and, for a second time, limited her to a sitting job. Finally, Dr. Rhodes completed a workers\u2019 compensation evaluation sheet on May 15, 2002, stating that Jefferson could not return to work until May 27, 2002. This is substantial evidence that Jefferson was entitled to temporary total disability benefits. We affirm the Commission on this point.\nFred\u2019s argued to this court in its amended petition for review that the court of appeals\u2019 reliance on the Physicians\u2019 Desk Reference to determine the use of the drug Flexeril was extra-judicial, violated Fred\u2019s procedural due process rights, and violated Ark. Code Ann. \u00a7 ll-9-705(a)(3) (Repl. 2002), and Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001). In particular, Fred\u2019s took issue with the following statement in the court of appeals decision, which was taken from the Physicians\u2019 Desk Reference:\nFlexeril \u201cis indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions.\u201d\nFred\u2019s, Inc., 89 Ark. App. at 99, 200 S.W.3d at 479 (quoting Physicians\u2019 Desk Reference 572 (56th ed. 2002)). Fred\u2019s underscores the fact that neither party referred to the Physicians\u2019 Desk Reference in the briefs filed in this appeal.\nWe do not address this issue for the simple reason that other than raising the issue in its amended petition for review, Fred\u2019s did not file a supplemental brief developing the issue or otherwise cite this court to relevant authority to support its position. This, we require. See Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001) (we do not consider an argument made without convincing argument or citation to authority to support it, where it is not apparent without further research that these arguments are well-taken); Matthews v. Jefferson Hosp. Ass\u2019n, 341 Ark. 5, 14 S.W.3d 482 (2000) (this court will not consider the merits of an argument if the appellant fails to cite convincing legal authority in support of that argument). Accordingly, this issue is not preserved for our review, and we affirm on this point. Though we do not reach this point, we do not mean by our silence to sanction implicitly the court of appeals\u2019 citation to the Physicians\u2019 Desk Reference, when it had not been adduced or argued by either party in the briefs.\nAffirmed.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "Roberts Law Firm, P.A., by: Bud Roberts, Jeremy Swearinger, and John D. Webster, for appellants.", "Gary Davis, for appellee." ], "corrections": "", "head_matter": "FRED\u2019S, INC. and Royal & Sun Alliance Ins. Co. v. Deborah JEFFERSON\n04-1085\n206 S.W.3d 238\nSupreme Court of Arkansas\nOpinion delivered March 31, 2005\nRoberts Law Firm, P.A., by: Bud Roberts, Jeremy Swearinger, and John D. Webster, for appellants.\nGary Davis, for appellee." }, "file_name": "0258-01", "first_page_order": 278, "last_page_order": 287 }