FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NOS.
& Brooks, P.A., by: Evelyn E. Brooks, for appellant.
Bassett Law Firm LLP, by: Curtis L. Nebben, for appellee.
J. GLADWIN, Chief Judge
case is on its second appeal to this court 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.
Facts & Procedural History
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.
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.
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.
Standard of Review
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.
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.
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). ...