Ball v. Wynne Public Schools

2014 Ark. App. 313

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-13-1019

CINDY BALL Opinion Delivered: May 14, 2014
APPELLANT
APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION
WYNNE PUBLIC SCHOOLS [No. G201223]
APPELLEE
AFFIRMED

WAYMOND M. BROWN, Judge

Appellant appeals from the Arkansas Workers’ Compensation Commission’s

(Commission) reversal of the administrative law judge’s (ALJ) grant of temporary-total-

disability (TTD) benefits to appellant on finding that appellant failed to prove that she is

entitled to additional TTD benefits after April 23, 2012.1 Appellant’s sole point on appeal

is that the Commission erred in finding that she was not entitled to additional TTD

benefits for the period from July 11, 2012, through February 1, 2013. We affirm.

The pertinent facts in this case are as follows, as ascertained from testimony and

exhibits submitted below. Appellant, appellee’s employee, was a passenger in a vehicle on

a work-related trip when she sustained a compensable injury on February 7, 2012. She

was transported to the Med Regional Medical Center in Memphis, Tennessee, on the day

of the accident. A CT scan, which she initially refused, revealed no acute findings. The

1
The Commission also found that appellant failed to establish that appellee willfully refused
her employment at any time; however, that finding is not being appealed by appellant.
 2014 Ark. App. 313

CT scan showed that appellant had sustained a “small laceration and hematoma superficial

to the left orbit[;]” a hematoma in the pelvic area, believed to have resulted from

appellant’s seatbelt; degenerative changes in the bilateral glenohumeral joint; and findings

of acute sinusitis. After receiving stitches for the small laceration, appellant was released on

the same day. She testified that she experienced a seizure, “the first one [she’d] ever had,”

that night at her home. She did not go to the emergency room despite being in the first

trimester of a high-risk pregnancy.2

Appellant filed a notice of injury with the Commission on February 8, 2012, listing

injuries to her left eye, abdomen, left chest and arm, and right leg; she did not include that

she had suffered a seizure. A workers’ compensation authorization for medical care was

executed on the same date by Kim Davis citing injuries to the left eye and “bruising [to

the] left chest area/arm, [and] right leg.”3 Dr. James Cathey was listed as appellant’s

doctor. Appellant’s obstetrician, Dr. Cem Sarinoglu, excused appellant from work from

February 8, 2012, through February 14, 2012.

On February 10, 2012, Dr. Cathey diagnosed appellant with an abdominal wall

contusion and a left-eye contusion. According to appellant’s testimony, at some point, Dr.

Cathey “kept [her] out of work” pending her meeting Dr. Reginald Rutherford via Dr.

Cathey’s referral.

Dr. Rutherford performed an evaluation of appellant on February 27, 2012. His

report, of the same date, acknowledged appellant’s complaints of “head pain in the region
2
Her unborn child was at an increased risk of being born with Trisomy 18; the child was
born healthy.
3
Davis is an assistant employed by appellee.
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 2014 Ark. App. 313

of her laceration [and] difficulty with memory and dizziness,” but he went on to note that

a CT scan “revealed evidence of sinusitis but not traumatic brain injury.” He opined that

“[p]harmacological intervention [regarding her isolated seizure would] only be required if

a second seizure occurs or a [sic] EEG reveals seizure diathesis.” He referred appellant to

Dr. John Roddey Dickins for a consult on appellant’s post traumatic dizziness and to Dr.

Judy White Johnson for a neuropsychological evaluation. Dr. Rutherford excused

appellant from work pending the completion of testing.

Dr. Dickins met with appellant on April 5, 2012, and noted in his report that he

“believe[d] she [could] return to work now” with the caveat that “at this point[, he]

would hold off driving.” His only other restriction on appellant was that she “not be on

scaffold [sic] unprotected.”

In a letter to Dr. Rutherford dated April 9, 2012, Dr. Judy White Johnson stated

that “[appellant’s] dizzy spells are thought by her obstetrician to be normal for her

pregnancy” and that appellant “believes all her symptoms are associated with the

pregnancy.” She went on to state that:

The pattern of the validity scales on the [Minnesota Multiphasic Personality
Inventory-2-RF] reflects an individual who is over-reporting physical, cognitive,
and psychological problems. Her over-reporting of somatic symptoms is reflected
in the assertion of a considerably larger than average number of somatic symptoms
rarely described by individuals with genuine medical problems. Ms. Ball has a
profound lack of insight into her psychological functioning. Expect significant
denial, lack of self-awareness, and a striving to present herself in a very positive
light.

Finally, Dr. Johnson stated that “the overall pattern of the neuropsychological test findings

is within normal limits without indications of traumatic brain injury.”

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 2014 Ark. App. 313

In his April 24, 2012 office visit report, Dr. Rutherford stated that appellant’s EEG

was normal, that she was “ready to return to work[,]” and was “at maximum medical

improvement.” He advised that “[t]here is no recommended workplace restriction and no

recommended permanent partial impairment.” He issued a release to appellant on the

same date stating that appellant may “return to work at regular duty with no restrictions.”

Appellant testified that she returned to work on April 24, 2012, and continued

working until the end of the school year. Kathy Lee, appellee’s Assistant Superintendent,

testified regarding appellant’s return to work. Lee testified that when appellant returned,

she and Lee “reviewed her doctor’s releases and [they] kind of wrote a little contract

where [Lee] asked [appellant] what she felt like she could do, couldn’t do, and then, [Lee]

put some restrictions on things [she] did not want appellant doing since she was pregnant.”

Lee made a written offer of a receptionist job to appellant until her driving restriction was

removed, but she rejected the offer stating that “she wanted to get back to driving.”

Appellant acknowledged receiving TTD benefits from February 8, 2012, until April 23,

2012.

In a letter dated April 26, 2012, Dr. Dickins released appellant from his care, stating

that it was his understanding that appellant’s symptoms “have cleared following our

physical therapy treatment” and that he had “no reason to limit [appellant’s] activities at

work other than what would normally be limited by her pregnancy.” He opined that “at

the moment[,] I give [appellant] a zero partial permanent disability based on the evidence

that we have.”

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 2014 Ark. App. 313

Appellant testified that she had another seizure in June; again, she did not seek

emergency medical attention. She testified that after her June seizure, she stayed in bed

most of the time as moving around made her feel worse. She noted that lying down when

she started feeling bad had “worked where [the seizures had] not happened anymore.” She

stated that she still experiences severe headaches and dizzy spells. She went to the doctor

regarding the June seizure on July 11, 2012.

In an office visit report dated July 11, 2012, Dr. Rutherford stated that appellant

had returned for a follow up reporting “los[ing] consciousness, and demonstrat[ing]

convulsive movements [of the] arms and legs without tongue contusion or incontinence.”

He advised appellant that “she should not be driving under any circumstances based upon

her current history.” He issued a doctor’s note to her on the same date noting that

appellant “may return to work with restrictions[:] no driving.” Appellant admitted this,

noting that she wasn’t told that she could drive until the week before the hearing. 4

Appellant was hospitalized in August in both Little Rock and Forrest City for

extreme severe headaches, dizziness, weakness, and numbness in her feet 5 and blood

pressure that was “through the roof.” She returned to being treated by her local physician,

Dr. Cathey, who gave her medication for her headaches only. She missed a follow-up

4
Dr. Cathey, not Dr. Rutherford, released appellant from her no-driving restriction.
However, we note that appellant admitted that she had been driving, against doctor’s
orders, though she asserted that she only drove “short distances when she needed to.” Lee
testified to seeing appellant drive to the office on at least two occasions during the summer
of 2012.
5
Appellant admitted experiencing numbness in her hands before the accident due to carpal
tunnel, but asserted that she had not experienced numbness in her feet.

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 2014 Ark. App. 313

EEG and MRI appointment with Dr. Rutherford in Little Rock due to a lack of

transportation. Despite her assertion that she failed to continue treatment in Little Rock

with Dr. Rutherford due to a lack of transportation, appellant admitted that the workers’

compensation carrier had provided her transportation on one visit at her request and that

she had not asked for transportation at any other time.

Appellant also testified that she ceased being treated by Dr. Rutherford due to a

lack of transportation, but she asserted that she requested another physician. Misty

Thompson, Workers’ Compensation Claim Supervisor for the Arkansas School Board

Association, who handled appellant’s claim, testified that appellant had failed to follow

through with the request for another physician. Appellant testified that she failed to follow

through with the change of physician request because she “[didn’t] have internet access.”

Thompson also testified that she had not denied authorization to appellant for further visits

to Dr. Rutherford and had authorized the additional testing Dr. Rutherford sought

following appellant’s July 11, 2012 office visit. Appellant admitted that her “pregnancy

held up [her] treatment.”

Prior to the February 7, 2012 accident, appellant had been treated for nearly all the

symptoms she complained of after the accident. She was treated by Dr. Glen Loveday for

“numbness and tingling in both upper extremities” on February 4, 2008. She was treated

by Dr. Sudhir Kumar, her family doctor, for fibromyalgia and a “lot of aches and pains”

where “even [her] fingers hurt” on February 27, 2009; on June 4, 2010 for “aches and

pains all over” with “headaches at times[;]” on August 15, 2010, for fatigue and “three

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 2014 Ark. App. 313

different headaches, one is [a] headache, one is [a] head pain, [and] one is [a] migraine[;]”

and on February 15, 2011, for narcolepsy.

Appellant testified that she had episodes before the accident where she had “passed

out” but that they were not seizures. She stated that she had not been told that “some of

her seizures were related to [her] narcolepsy.” She acknowledged having been treated for

fibromyalgia, dizziness, fatigue, and headaches in the past, but stated that the “headaches

[she has] now are not like any other [she had] had before.” She described the headaches

and migraines she has now, in comparison to the headaches and migraines she had in the

past, as follows:

These are excruciating pain headaches where I feel like if somebody could just drill
a hole in my head, it would release some of the pressure and the medications that I
have been given for them are not working. They go away after a long period of
time. They last days. When I had my headaches in 2010 and before, I could take
BC Powder or Excedrin and Maxalt when they were really bad. Those medications
do not work today.

She attributed her symptoms in 2009 to her carpal tunnel diagnosis for which she applied

for Social Security Disability, but was denied.6 At some point, appellant sought additional

TTD benefits for the period of July 11, 2012, through February 1, 2013; appellee denied

the request.7 At some point, appellant filed a claim with the Commission.

A pre-hearing order was filed November 26, 2012, reflecting the parties’

stipulations that the Arkansas Workers’ Compensation Commission had jurisdiction over

appellant’s claim; that an employment relationship existed at all times pertinent, including
6
She applied, and was denied, again in October 2012.
7
Neither the date of appellant’s request for additional benefits, nor the date appellee denied
the request, appear in the record.

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 2014 Ark. App. 313

February 7, 2012, when appellant sustained compensable injuries; and that appellant

earned an average weekly wage of $339.52, which generated compensation benefit rates of

$226.00 per week for TTD benefits and $170.00 per week for permanent partial disability

benefits. The order also reflected the issue to be addressed at the February 5, 2013 hearing

as a claim for additional temporary total disability benefits.8

Following a February 8, 2013 hearing, the ALJ filed an opinion on April 10, 2013,

finding that claimant sustained her burden of proof by a preponderance of the evidence

that, in addition to the prior period, she remained temporarily totally disabled and within

her healing period for the period of July 1, 2012, continuing through February 2013, and

correspondingly was entitled to temporary total disability benefits.9 Appellant was awarded

temporary-total-disability benefits at weekly compensation rate of $226.00 for the period

commencing July 11, 2012, and continuing through February 1, 2013.10

8
Other issues to be addressed included a claim for additional medical benefits subsequent
to July 11, 2012 (appellant withdrew this claim at the February 8, 2013 hearing), a claim
regarding unpaid medical bills, a claim for 505(a) benefits, and controverted attorney’s
fees; however, these issues are not before this court.
9
The ALJ also found that appellant failed to sustain her burden of proof that appellee had
controverted her entitlement to continued reasonably necessary medical treatment in
connection with the February 7, 2012 compensable injury and failed to sustain her burden
of proof by a preponderance of the evidence that the appellant refused to return her to
work without reasonable cause. Neither of these issues is before this court.
10
Appellant was also awarded the maximum attorney’s fee. Appellee was ordered, as part of
claimant’s award, to continue to pay all reasonably necessary medical, hospital, nursing,
and other apparatus, expenses, growing out of and in connection with the treatment of the
February 7, 2012, compensable injury of the claimant, to include medical related mileage.

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 2014 Ark. App. 313

On September 24, 2013, the Commission filed an opinion reversing the ALJ’s

opinion, finding that appellant failed to prove that she was entitled to additional benefits of

any kind after April 23, 2012.11 This timely appeal followed.

When reviewing a decision of the Arkansas Workers’ Compensation Commission,

we view the evidence and all reasonable inferences deducible therefrom in the light most

favorable to the findings of the Commission, and we affirm that decision if it is supported

by substantial evidence.12 Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. 13 The issue is not whether the

appellate court might have reached a different result from the Commission, but whether

reasonable minds could reach the result found by the Commission: if so, the appellate

court must affirm.14 It is the Commission’s duty to make determinations of credibility, to

weigh the evidence, and to resolve conflicts in medical testimony and evidence. 15 We will

not reverse the Commission’s decision unless we are convinced that fair-minded persons

The Commission also found that appellant failed to prove that appellee refused to return
11

her to work without reasonable cause pursuant to Arkansas Code Annotated section 11-9-
505(a); this finding is not appealed by appellant to this court.
12
Thrapp v. Smith Blair, Inc., 2013 Ark. App. 683, at 5, ___ S.W.3d ___, ___ (citing
Kimble v. Labor Force, Inc., 2013 Ark. App. 601, ___ S.W.3d ___).
13
Id., 2013 Ark. App. at 5-6, ___ S.W.3d ___, ___.
14
Jordan v. Home Depot, Inc., 2013 Ark. App. 572, at 6-7, ___ S.W.3d ___, ___ (citing
Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007)).
15
Id., 2013 Ark. App. at 6, ___ S.W.3d at ___ (citing Martin Charcoal, Inc. v. Britt, 102
Ark. App. 252, 284 S.W.3d 91 (2008)).

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 2014 Ark. App. 313

with the same facts before them could not have reached the conclusions arrived at by the

Commission.16

When an injured employee is totally incapacitated from earning wages and remains

within her healing period, she is entitled to temporary total disability. 17 The healing period

continues until the employee is restored as much as the permanent character of her injury

will permit.18 The healing period ends when the underlying condition causing the

disability becomes stable and no treatment will improve it.19

In this case, appellant was injured on February 7, 2012. She was paid TTD benefits

for the period beginning February 8, 2012, and ending April 23, 2012. On April 24, 2012,

Dr. Rutherford released appellant from his care with no restrictions, recommending no

partial impairment rating, and with the opinion that she had reached maximum-medical

improvement. Appellant returned to work on April 24, 2012, performing her regular

duties, where not limited by her pregnancy, for she testified that “the list of things she

couldn’t do [were] because of her pregnancy[,]” not due to symptoms arising from the

accident. On April 26, 2012, Dr. Dickins also released appellant from his care having “no

reason to limit her activities at work other than what would normally be limited by

[appellant’s] pregnancy” and gave her a zero partial impairment rating.

16
Thrapp, 2013 Ark. App. 683, at 6, ___ S.W.3d at ___ (citing Kimble v. Labor Force, Inc.,
2013 Ark. App. 601, ___ S.W.3d ___).
17
Butler v. Lake Hamilton School Dist., 2013 Ark. App. 703, at 4, ___ S.W.3d ___, ___
(citing Riggs v. B & S Contractors, Inc., 2010 Ark. App. 554, 377 S.W.3d 466).
18
Id.
19
Id.
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 2014 Ark. App. 313

It was during appellant’s July 11, 2012 office visit that she reported her second

seizure, which she testified occurred the previous month. Dr. Rutherford’s report on that

visit includes appellant’s self-reported symptoms of a seizure and increasing headache, his

recommendation that she cease driving, and his plan to complete a MRI study of her

brain and an ambulatory EEG “for the problem to be further evaluated.” Because of

appellant’s failure to follow through with Dr. Rutherford’s recommendations, no medical

evidence could be obtained. Accordingly, there was no medical evidence in existence

before the Commission to support a finding that appellant had reentered her healing

period after the date Dr. Rutherford determined that she had reached maximum-medical

improvement.

Additionally, appellant had not worked since leaving the school district, despite her

the doctors having released her to return to work without restrictions other than those

relating to her pregnancy. Appellee was willing to accommodate those restrictions. As

such, appellant put no evidence before the Commission proving that she was totally

incapable of earning wages.

Because appellant failed to prove that she had reentered her healing period and

failed to prove that she was totally incapable of earning wages, there was substantial

evidence to support the Commission’s finding that appellant failed to prove that she was

entitled to additional TTD benefits after April 23, 2012.

Affirmed.

WALMSLEY and WOOD, JJ., agree.

Talbott & Ladd, P.A., by: Kathleen Talbott, for appellant.
Coplin, Hardy & Stotts, PLLC, by: Betty J. Hardy, for appellees.
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