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Turner v. Southern Alloy & Metals Corp.

Court of Appeals of Arkansas, Division III

May 3, 2017

LAWRENCE GARY TURNER APPELLANT
v.
SOUTHERN ALLOY & METALS CORP., TRANSPORTATION INSURANCE CO., AND DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. C501557]

          Frederick S. "Rick" Spencer, for appellant.

          Wright, Lindsey & Jennings LLP, by: Lee J. Muldrow and Gary D. Marts, Jr., for appellees.

          PHILLIP T. WHITEAKER, Judge

         Is a person who is permanently and totally disabled due to a work-related injury entitled to have the former employer purchase a new van to accommodate an electric wheelchair? Apparently, the answer to this question depends on the date of the injury and which version of the Arkansas workers'-compensation statute applies. This appeal asks our court to decide whether appellant Lawrence Turner is entitled to have his former employer, appellee Southern Alloy & Metals Corp. ("Southern Alloy"), purchase him a new van that is compatible with Turner's electric wheelchair. The Administrative Law Judge (ALJ) found that he is not, and the Arkansas Workers' Compensation Commission ("the Commission") affirmed the ALJ's decision. Based on our prior opinion in Public Employee Claims Division v. Keys, 99 Ark.App. 77, 257 S.W.3d 570 (2007), we must affirm the Commission.

         The facts in this appeal are essentially undisputed. Turner was employed by Southern Alloy in 1975 when he suffered a compensable injury that rendered him permanently and totally disabled, a paraplegic, and unable to perform mobility-related activities of daily living. Since his injury, he has been confined to a wheelchair. In 2012, Turner requested and was provided with a lightweight specialized wheelchair. Since that time, however, Turner developed significant pain and "overuse syndrome" in his upper extremities as a result of his wheelchair use.

         In 2014, Turner was evaluated at Craig Hospital in Englewood, Colorado. As a result of that evaluation, Dr. Cherisse Tebben recommended that Turner be provided with a power-tilt wheelchair. In order to accommodate this new, larger wheelchair, Dr. Tebben advised "that a new modified van is necessary to accommodate for safe and consistent passenger transfer." In an accompanying "letter of medical recommendation, " Dr. Tebben opined that a modified van was "indicated to allow for this patient to continue with independent driving status while seated in his power wheelchair. . . . Th[is] item[ ] is medically recommended due to Lawrence's neurological deficits[.]" Turner also obtained a prescription for an "independent driver van."

         Turner requested such a van from Southern Alloy, which declined to provide it. Turner then sought a hearing before the ALJ, contending that the van was a medical necessity to which he was entitled. Southern Alloy responded that Turner had a van that had been fully modified and equipped to accommodate his medical condition. Southern Alloy also asserted that, "[a]ssuming without conceding that that van has exceeded its useful life, . . . [Southern Alloy's] obligation would be limited to modifying and appropriately equipping a new van or vehicle secured by [Turner]."

         After the parties briefed the issue, the ALJ issued an opinion in which it found that Turner had failed to sustain his burden of proof. Specifically, the ALJ found that Turner's injury, which occurred in 1975, was governed by Arkansas Statute Annotated section 81-1311 (Repl. 1976). The ALJ determined that the van requested by Turner was not an "apparatus" that was "reasonably necessary for the treatment of his injury" pursuant to this statute. Turner appealed the ALJ's decision to the full Commission, which adopted and affirmed the ALJ's opinion in a 2-1 decision. Turner filed a timely notice of appeal from the Commission's decision, and he now argues to this court that under section 81-1311, he proved his entitlement to the new van as being reasonably necessary for the treatment of his injury.

         This court has twice before addressed the issue of whether a permanently and totally disabled person is entitled to have his or her former employer purchase a new van to accommodate the use of an electric wheelchair. In Liberty Mutual Insurance Co. & Film Transit v. Chambers, 76 Ark.App. 286, 64 S.W.3d 775 (2002), we decided this issue under Arkansas Code Annotated section 11-9-508(a), the current version of the workers' compensation statute.[1] Since 1993, the current version of the statute has declared as follows:

The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.

Ark. Code Ann. § 11-9-508(a) (Repl. 2012) (emphasis added).

         In Chambers, the employee was injured subsequent to the 1993 amendment to the statute and, as a result of a compensable injury, was rendered a wheelchair-bound double-amputee. This court held that section 11-9-508(a) "no longer tie[d] 'apparatus' to medical services, but rather 'other apparatus as may be reasonably necessary in connection with the injury received by the employee.'" Id. at 288, 64 S.W.3d at 776-77. As a result, this court concluded that Chambers was entitled to a hand-controlled, wheelchair-accessible van because the van was determined to be "reasonably necessary in connection with the injury."

         In Public Employee Claims Division v. Keys, 99 Ark.App. 77, 257 S.W.3d 570 (2007), this court decided whether a permanently and totally disabled person was entitled to have his former employer purchase a new van to accommodate an electric wheelchair under section 81-1311. Prior to 1993, section 81-1311 provided that an employer "shall promptly provide for an injured employee such medical, surgical, hospital and nursing services, and . . . other ...


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