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Turcios v. Tyson Foods, Inc.

Court of Appeals of Arkansas, Division II

October 19, 2016

JOSE TURCIOS APPELLANT
v.
TYSON FOODS, INC., AND TYNET APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NOS. G309211/G402139]

          Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellant.

          Bassett Law Firm LLP, by: Curtis L. Nebben, for appellee.

          ROBERT J. GLADWIN, Chief Judge

         This case is on its second appeal to this court[1] and follows the January 8, 2016 decision of the Arkansas Workers' Compensation Commission (Commission) reversing in part its prior opinion from April 10, 2015, finding that appellant Jose Turcios failed to prove by a preponderance of the evidence that he is entitled to temporary total-disability benefits (TTD) from March 6, 2014, until a date yet to be determined. The only issue raised in this appeal is whether Turcios is entitled to additional TTD. We affirm.

         I. Facts & Procedural History

         Turcios suffered medial meniscus ligament (MCL) and anterior cruciate ligament (ACL) right-knee injuries. A hearing was held on August 27, 2014, on the issue of the compensability of Turcios's ACL tear, medical treatment for that injury, and TTD from March 6, 2014, to a date yet to be determined. This TTD was for the period after Turcios had been released to work at light duty. The Administrative Law Judge (ALJ) found that Turcios had failed to prove that his ACL tear was causally related to his compensable injuries; therefore, the ALJ did not address the issue of TTD. The Commission reversed the decision and determined that the ACL tear was a compensable injury and that Turcios was entitled to medical treatment as recommended by his treating physician. In addition, it found that Turcios was entitled to TTD from March 6, 2014, to a date yet to be determined.

         On November 12, 2015, this court affirmed the Commission's decision to award medical treatment for Turcios's right-knee ACL injury and reversed and remanded to the Commission to make "more robust factual findings and for it to determine the applicability (or inapplicability) of Arkansas Code Annotated sections 11-9-521 [(Repl. 2012)] and 11-9-526 [(Repl. 2012)]." Turcios I, 2015 Ark.App. 647, at 9, 476 S.W.3d at 182. This court specifically required on remand that the Commission determine (1) whether Turcios remained in his healing period or started a new healing period; (2) whether he suffered a total incapacity to earn a meaningful wage; (3) whether Turcios "returned to work" within the meaning of section 11-9-521; (4) whether Turcios's absenteeism was related to his compensable knee injury or an unrelated medical issue; and (5) whether Turcios's alleged violations of Tyson's attendance policy did or did not affect his TTD eligibility under section 11-9-526. Id. While we acknowledge that "robust findings of fact" is not a legal standard, we hold that the Commission made the requested additional findings sufficient to address the merits of Turcios's argument.

         In its January 8, 2016 opinion, the Commission changed its determination and found that Turcios did not prove that he was entitled to TTD after March 10, 2014. On remand, the Commission specifically found that Turcios had been returned to work with his restrictions accommodated no later than March 10, 2014. The Commission also found that Turcios refused Tyson's employment offer, which was suitable to his capacity. The Commission found that Turcios's testimony was inconsistent with the objective medical evidence in the record. Specifically, Turcios testified that he was physically unable to perform the restricted work provided by Tyson, but his treating physician, Dr. Sites, opined that Turcios "is able to work in a capacity that does not require pivoting, twisting, or turning." The Commission found that the position offered by Tyson to accommodate Turcios's restrictions did not require pivoting, twisting or turning. Citing Robertson v. Pork Group, Inc., 2011 Ark.App. 448, 384 S.W.3d 639, the Commission found that Turcios was not entitled to TTD because his restrictions were being accommodated by Tyson, and he was fired for absenteeism unrelated to the injury.

         II. Standard of Review

         In reviewing decisions from the Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission's decision and affirm if it is supported by substantial evidence. Skinner v. Tango Transp., Inc., 2016 Ark.App. 304, ___ S.W.3d ___. Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from the Commission. See id. Additionally, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Id. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Id. Finally, this court will reverse the Commission's decision only if it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.

         III. Discussion

         Turcios argues that substantial evidence does not support the decision of the Commission that he is not entitled to TTD from March 6, 2014, to a date yet to be determined. He urges that reasonable minds could not come to the Commission's decision when reviewing the medical and other evidence provided in support of a finding that he is entitled to TTD from March 6, 2014, to a date yet to be determined.

         Arkansas Code Annotated section 11-9-521 provides that a claimant is entitled to TTD "during the healing period or until the employee returns to work, whichever occurs first. . . ." Gomez v. Crossland Constr. Co., Inc., 2011 Ark.App. 787; see also Wheeler Constr.Co. v. Armstrong, 73 Ark.App. 146, 41 S.W.3d 822 (2001). ...


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