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Arkansas Court Affirms Limited Award of "Nursing" Services Provided by Spouse of Disabled Employee.  Powell v. Producers Rice Mill, 2009 Ark. App. LEXIS 152 (March 18, 2009).  Appellant employee sought review of an order from the Arkansas Workers' Compensation Commission, which awarded him two hours per day, seven days per week, of nursing services performed by his wife. Appellees, an employer and its insurer, also challenged the award of nursing services. The employee sustained a compensable injury when he fell into an auger at a rice mill, which resulted in the loss of both legs above the knee. The injury also resulted in anal sphincter incontinence due to laceration wounds in the sphincter area and a bladder/rectal fistula. The Commission awarded the employee two hours of nursing services each day for assistance with bathing; assistance in performing exercises at home; back massages; and changing bed linens because the injuries he suffered caused leakage. On appeal, the court found that substantial evidence supported the Commission's finding that the nursing services were reasonably necessary under Ark. Code Ann. § 11-9-508(a) (Supp. 2007). As a double amputee, the employee suffered from back pain, had fallen twice in the shower, and was unable to change his own bed linens. Substantial evidence supported the decision to limit nursing services to two hours per day because the employee did not provide any evidence regarding the amount of time his wife expended in completing the daily nursing services.  The court affirmed the Commission's judgment.  See generally Larson’s Workers’ Compensation Law § 94.03.

Arkansas Court Approves Disability Rating Substantially Higher Than Medical Impairment Level of Injured Employee.  City of Jonesboro v. Morgan, 2009 Ark. App. LEXIS 119 (March 4, 2009).  Appellants, an employer and its insurance carrier, sought review of a decision of the Arkansas Workers' Compensation Commission, affirming an opinion of an Administrative Law Judge (ALJ) that appellee claimant was entitled to a wage-loss-disability award of 55 percent over and above the 12 percent anatomical impairment, pursuant to Ark. Code Ann. § 11-9-522.  The claimant worked as a police officer and sustained a compensable injury to her back while chasing a suspect. After back surgery, she had sharp pain and numbness in her entire right leg. Her condition was unpredictable, and normal activities caused severe pain. The employer and insurer argued that the Commission erred in awarding the permanent wage-loss-disability benefits because the employer had offered suitable reemployment within her physical limitations, pursuant to Ark. Code Ann. § 11-9-526. The ALJ determined that the claimant did not have the required education and experience for the employer's other open positions. On de novo review, the court deferred to the authority of the Commission and the ALJ regarding the credibility and weight to be accorded to the testimony of the claimant and other witnesses. The Commission and the ALJ found that the claimant could not be a consistently reliable and dependable employee in terms of reporting to work on a daily basis. The Commission had the authority to increase the claimant's disability rating upon the assignment of an anatomical-impairment rating to the body as a whole, pursuant to Ark. Code Ann. § 11-9-522(b)(1).  The court affirmed the decision of the Commission.  See generally Larson’s Workers’ Compensation Law § 80.02, 80.05.

Finley v. Farm Cat, Inc., 2008 Ark. App. LEXIS 748 (October 22, 2008).  Appellant, the decedent's wife (wife), sought review of the decision of the Arkansas Workers' Compensation Commission (Commission), which found in favor of appellees, the employer and trust fund (employer), and found that the son of the wife and the deceased husband were not entitled to dependency benefits. The wife appealed a Commission decision finding that her son with her deceased husband was not entitled to dependency benefits. The appellate court affirmed. The husband was fatally electrocuted in 2001.  In 2002, the wife had two frozen embryos implanted into her uterus. A pregnancy was confirmed and a son was born in 2003. Thereafter, the wife filed for workers' compensation benefits, contending that the son was the dependent child of her deceased husband and was entitled to weekly compensation benefits pursuant to Ark. Code Ann. § 11-9-527(c) (2002). The appellate court stated that it was unnecessary for it to decide whether the son was a "person" at the time of the husband's injury because, assuming for the sake of argument that he was a "person," there was substantial evidence to support the Commission's decision that the son was not "wholly and actually dependent" on the husband at the time of the injury. There was no evidence demonstrating that at the time of his father's death, the son had a reasonable expectation of support from him. The son was a frozen embryo at the time of the death and was not born until almost two years after his father's death.  The judgment was affirmed.  See generally Larson’s Workers’ Compensation Law §§ 97.01, 98.05. 

Texarkana Sch. Dist. v. Conner, 2008 Ark. LEXIS 310 (May 8, 2008).  Appellee employee filed a petition for review of an order from the Arkansas Court of Appeals, which reversed a decision from the Arkansas Workers' Compensation Commission awarding him workers' compensation benefits from appellant employer.  The employee worked as a janitor for the employer. The employee left the employer's premises during his lunch break to perform a personal errand. Upon his return, he went to park in his usual parking lot but discovered a disabled truck blocking the main entrance to the lot. He then went to the back entrance of the lot that was secured by a locked gate. While attempting to unlock the gate, he was struck by the gate and pinned under it. As a result, his leg was broken in two places. The Commission awarded the employee benefits, finding that he was injured while performing employment services. The court of appeals overturned the Commission's order. On review, the court found that in attempting to unlock the gate and provide access to the back entrance, the employee was advancing the employer's interests by allowing other workers to enter or exit the parking lot. There was no testimony presented to contradict that of the employee that he was on call once he returned to the employer's premises. The Commission found the employee to be a credible witness. The employee sustained a compensable injury under Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2003).  The court reversed the decision of the court of appeals. The court affirmed the judgment of the Commission.  See generally Larson’s Workers’ Compensation Law § 3.01, 17.01.

Sykes v. Williams, 2008 Ark. LEXIS 256 (April 17, 2008).  Appellant, a truck driver who injured his back while disconnecting a trailer from his truck, filed a complaint in the Craighead County Circuit Court, Arkansas, against appellees, a freight lessor (the driver's employer), a freight carrier, and a healthcare company, alleging negligence pursuant to Ark. Code Ann. § 11-9-105(b) (2002), and seeking $1.6 million in damages. The circuit court granted summary judgment for appellees. The driver appealed.  The driver argued that he was not required to demonstrate that appellees were negligent in order to proceed in the circuit court against them under § 11-9-105(b), and, in any event, his burden of proof was met by the fact that appellees failed to carry workers' compensation insurance in violation of Ark. Code Ann. § 11-9-404 (2002 & Supp. 2007). The supreme court rejected his position, concluding that, in order to establish liability on the part of appellees, the driver was required to demonstrate negligence on their part since, under the plain meaning of Ark. Code Ann. § 11-9-105(b) (2002), the no-fault theory of workers' compensation did not carry over to suits filed in tort. Therefore, to maintain a suit in tort contemplated by § 11-9-105(b), the driver had to prove negligence on appellees' part. The mere fact of appellees' noncompliance with Ark. Code Ann. § 11-9-404 (2002 & Supp. 2007), in failing to secure the payment of workers' compensation, did not establish their negligence for purposes of Ark. Code Ann. § 11-9-105(b) (2002), because the driver did not demonstrate that their failure to maintain insurance coverage caused his back injury.  The summary judgment in appellees' favor was affirmed.  See generally Larson’s Workers’ Compensation Law § 102.02.

Hite v. J & J Trucking, 2008 Ark. App. LEXIS 501 (June 18, 2008).  A workers' compensation administrative law judge (ALJ) found that appellant worker was entitled to benefits for an injury he suffered, but that his employer, who failed to obtain insurance, was not a subcontractor of appellee, an alleged general contractor. The Arkansas Workers' Compensation Commission affirmed the ALJ's decision. The worker appealed only the subcontractor issue.  If the employer were a subcontractor, then appellee--as general contractor--would have been liable for the benefits awarded to the worker under Ark. Code Ann. § 11-9-402(a) (2002). The Commission determined that no such relationship existed. Substantial evidence supported its decision. The worker argued that the contract between his employer and the alleged general contractor showed contractual obligations to third-party customers. But the record did not show that the employer contracted with the alleged general contractor to perform a portion of its obligation to its customers. The record contained no evidence that the worker or any other driver actually delivered the alleged general contractor's products to any of its customers. The court agreed that the Commission did not specify all the facts supporting its legal conclusion that the employer was not a subcontractor, and the omission was error, but not a reversible one. The worker discerned the obvious facts behind the Commission's decision and ably argued them and the applicable law, and the court was likewise able to review the Commission's decision as the law required.  The court affirmed the decision of the Commission. See generally Larson’s Workers’ Compensation Law § 70.01.

Beliew v. Lennox Indus., 2008 Ark. App. LEXIS 497 (June 18, 2008).  Appellant employee sought review of a decision of the Arkansas Workers' Compensation Commission, which reversed the decision of an administrative law judge and found in favor of appellees, an employer and its insurer, that there was no evidence demonstrating that the employee's compensable injury was the cause of lumbar problems diagnosed by the treating doctor or that surgical treatment was reasonably necessary in connection with such injury.  The parties stipulated that the employee suffered a compensable back injury. The employer and the insurer paid for treatment to the thoracic area of the employee's back, but refused to pay any further benefits after two doctors found that the employee had reached maximum medical improvement and the employee was released to return to work with a zero-percent impairment rating. The employee claimed that he remained symptomatic and wanted to continue treatment with the treating doctor who had begun treating him for lumbar problems. Upon review, the court determined that the Commission relied solely on the opinions of the two doctors relied on by the employer and found that the treating doctor's opinion was not entitled to much weight. There was no mention of the findings of low-back strain made by the fourth and fifth doctors, who the employee saw prior to seeing the two doctors relied on by the employer. The court held that the Commission arbitrarily disregarded the medical records from the fourth and fifth doctors. Such disregard was improper.  See generally Larson’s Workers’ Compensation Law § 130.05.

Pharmerica v. Seratt,2008 Ark. App. LEXIS 494 (June 18, 2008).  Appellant employer sought review of the decision of the Arkansas Workers' Compensation Commission, which awarded benefits to appellee employee related to injuries arising out of carbon monoxide leaking out of a faulty water heater at work.  The employer argued the Commission improperly awarded benefits for an occupational disease and that there were no objective findings to support the existence of an occupational injury or its cause. The court found that the Commission has authority, and the duty, to render anew findings relevant to the claim, and thus, it was within its power to render findings on compensability, regarding an occupational disease or a single workplace accident. The court was unable to make a determination with regard to the employer's claims that it did not receive the notice required under Ark. Code Ann. § 11-9-603(a)(2)(A) (2002) because the Commission made no findings as to the employee's compliance or lack of compliance with the notice requirement. The court also noted that the Commission's findings were lacking with regard to the substantive claim. There was a thorough discussion of the existence of objective findings to support the existence of a compensable injury and on the causal relationship between the injury and work, but the Commission made no findings on the issue of how the claim fit within the occupational-disease construct under Ark. Code Ann. § 11-9-601(g)(1)(A) (2002).  The court reversed the Commission's decision and remanded for additional findings of fact on the employee's compliance with the statutory notice provisions of Ark. Code. Ann. § 11-9-603(a)(2)(A) (2002) and, if necessary, on the substantive claim so as to explain the basis of its conclusion on compensability.  See generally Larson’s Workers’ Compensation Law § 130.04.

Luten v. Xpress Boats & Backtrack Trailers, 2008 Ark. App. LEXIS 495 (June 18, 2008).  The Arkansas Workers' Compensation Commission (Commission) reversed the order of the administrative law judge (ALJ) and found that appellant employer had failed to prove that he was entitled to additional temporary total disability benefits. The employee appealed.  The employee argued that the Commission's opinion was not supported by substantial evidence; that the Commission mischaracterized critical evidence; and that the Commission unlawfully required the employee to prove the continuation of his healing period with objective evidence. The appellate court agreed with the employee that the findings that the employee's healing period ended on November 4, 2004, and that the employee was not totally incapacitated from earning wages since his release, were not supported by substantial evidence. There was treatment which had been recommended by a number of the employee's treating physicians and would be administered for the healing and alleviation of the employee's condition, but appellees, the employer and insurer, refused to authorize such treatment. The fact that one doctor saw nothing in the employee's condition that required surgery and released him from his care did not necessarily mean that the employee was in fact fully recovered and able to return to work. None of the employee's treating physicians ever opined that the employee had reached maximum medical improvement.  The judgment was reversed and remanded. See generally Larson’s Workers’ Compensation Law § 130.05.

C. Bean Transp., Inc. v. Justice, 2008 Ark. App. LEXIS 459 (June 4, 2008).  Appellee employee drove a truck for appellant employer. The employee fell and hurt his head, knee, and shoulder while he was at a customer's scale house on one of his routes. The employee had to go to a doctor because of his shoulder pain. The Arkansas Workers' Compensation Commission adopted an administrative law judge's (ALJ) decision awarding the employee benefits and attorneys' fees. The employer appealed.  The employer challenged the sufficiency of the evidence supporting the award. The Commission based its decision on the credibility of a witness's testimony and the medical evidence presented at the hearing. The employee testified that he did not have shoulder pain before he fell, but afterwards he was in too much pain to drive the rest of his route. A post-fall MRI showed a tear in the employee's rotator cuff. A medical report stated that, while the employee may have had some chronic shoulder problems, they were exacerbated by his fall at the scale house. An aggravation of a preexisting condition was compensable. The court deferred to the Commission's evaluation of the medical report because the Commission had the exclusive function of determining witnesses' credibility and the weight of all the evidence. The employee's testimony, which the ALJ found credible, and the medical evidence, provided substantial evidence to support the Commission's award of benefits. See generally Larson’s Workers’ Compensation Law § 130.05.

Diebold, Inc. v. Webber, 2008 Ark. App. LEXIS 450 (June 4, 2008).  Appellee employee was injured while he worked for appellant employer. His doctor told him that he had a herniated disc in his back. The employee sought workers' compensation for his gradual-onset back injury, under Ark. Code Ann. § 11-9-102(4)(A)(ii)(b) (Supp. 2007). The Arkansas Workers' Compensation Commission awarded the employee benefits for his medical treatment and temporary total disability. The employer appealed.  An administrative law judge (ALJ) found the employee's testimony about the cause of his injury credible. The Commission adopted the ALJ's decision that, based on the close proximity between the onset of his symptoms and the work he was then doing for the employer, his injury was compensable. The employee presented objective medical evidence of his injury in the form of MRIs and doctors' reports that did not identify a specific accident causing the employee's injury, but indicated that his back pain became seriously symptomatic in October 2005. A doctor stated that the employee's job could have definitely contributed to the cause of his ruptured disc. The employee also presented doctors' reports, which indicated that his back injury contributed to his disability or need for treatment--specifically the back surgeries. The Commission found that the employee's work injury was a major cause of his need for medical treatment, including back surgery, and awarded him compensation for that treatment. The court found that substantial evidence supported the Commission's decision. See generally Larson’s Workers’ Compensation Law § 130.05.

Keene v. Arkansas Dep't of Health & Pub. Employee Claims Div., 2008 Ark. App. LEXIS 458 (June 4, 2008).  The Arkansas Workers' Compensation Commission (Commission) found that appellant employee did not sustain her burden of proving a compensable injury by a preponderance of the evidence because the record did not contain objective findings that established a compensable injury. The employee appealed.  The employee argued that the Commission failed to recognize the objective findings of the MRI, and argued that the Commission did not make sufficient findings of fact that would allow an analysis of the facts that the Commission believed were established by the evidence. The appellate court found that the employee presented an MRI showing spinal stenosis. This evidence was medical and was supported by findings that could not come under the control of the patient. Thus, the administrative law judge's (ALJ) opinion was incorrect in stating that there were no objective findings. The ALJ confused the two concepts of causation and objective findings, and incorrectly discounted what were clearly objective findings; he then compounded his error by failing to consider the employee's own testimony, which was non-medical, non-objective evidence that may establish causation.  The judgment was reversed and remanded.  See generally Larson’s Workers’ Compensation Law § 130.05.

Pilgrim's Pride Corp. v. Perren, 2008 Ark. App. LEXIS 446 (June 4, 2008).  The Arkansas Workers' Compensation Commission (Commission) affirmed and adopted the decision of an administrative law judge (ALJ), who found that appellee employee was entitled to 40% wage-loss disability in addition to his 10% permanent-impairment rating. Appellants, the employer and insurer, appealed.  The employer and insurer argued that the employee was not entitled to wage-loss disability or, alternatively, that he was entitled to less than 40% disability. The appellate court noted that wage loss was awarded to the extent that a claimant had lost the ability to earn wages. The employee's ability to earn wages had diminished. Substantial evidence supported a finding that the truck-driving job was outside the employee's abilities. The Commission found the employee's testimony credible regarding his motivation to work. The employee looked for employment after being laid off from his job, he had an extensive history as a manual laborer prior to his workplace accident, he continued to work as be he could after the accident until his position was eliminated, and he was a good worker. The evidence supported a finding that he was motivated to work. The Commission's decision to award the employee 40% wage-loss disability was supported by substantial evidence.  The judgment was affirmed.  See generally Larson’s Workers’ Compensation Law § 84.01.