CITY OF FORT SMITH and Central Adjustment Co., Inc., Appellants
Trina A. KAYLOR, Appellee
FROM THE ARKANSAS WORKERS COMPENSATION COMMISSION [NO.
Woods, P.L.L.C., Fort Smith, by: Douglas M. Carson, for
and Gramlich, LLP, Fort Smith, by: Jered Medlock, for
B. SWITZER, Judge
City of Fort Smith (Fort Smith) appeals the Workers
Compensation Commissions (Commission) award of temporary
total-disability (TTD) benefits to appellee Trina Kaylor from
October 13, 2017, until March 7, 2018. For the reasons
discussed below, we reverse and remand this case to the
Commission for further findings.
began working as a meter reader for Fort Smith in December
2016. Her job required her to walk residential neighborhoods
and record meter readings. Kaylor was counseled after being
on the job a little less than a month that she needed to
speed up her meter readings and improve the accuracy of the
June 20, 2017, Kaylor suffered an admittedly compensable
left-leg injury when she stepped in a hole while reading
meters. Kaylor was placed on restricted duty.
She was required to alternate sitting, standing, and walking,
and she could not lift over twenty pounds. Fort Smith
provided work within Kaylors restrictions performing
re-reads of meters, but her accuracy and speed continued to
be an issue— facts Kaylor admitted were legitimate
concerns. Kaylor was terminated on October 13, 2017, for
failure to maintain the level of meter-reading accuracy
required by Fort Smith, which Fort Smith deemed to be
"insubordination" as defined in its handbook as
"failure to perform work assigned." Kaylor
continued to receive medical treatment for her compensable
injury, and she was released to return to work at full duty
with no restrictions on March 7, 2018. Kaylor testified she
did not work between October 13, 2017, the date of her
termination, and March 7, 2018, the date she was released to
return to work with no restrictions.
ALJ found Kaylor had proved she was entitled to TTD benefits
from October 13, 2017, until March 7, 2018. The Commission
affirmed and adopted the ALJs opinion as its
own. Fort Smith now appeals, arguing Kaylor
is not entitled to TTD benefits because she had already
returned to work, and she was terminated for reasons
unrelated to her compensable injury.
appeals involving workers compensation claims, this court
views the evidence in the light most favorable to the
Commissions decision and affirms the decision if it is
supported by substantial evidence. Webb v. Wal-Mart
Assocs., Inc., 2018 Ark.App. 627, 567 S.W.3d 86.
Substantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion. Tyson Foods,
Inc. v. Turcios, 2015 Ark.App. 647, 476 S.W.3d 177.
awarding Kaylor TTD benefits from October 13, 2017, until
March 7, 2018, the ALJ cited Tyson Poultry, Inc. v.
Narvaiz, 2010 Ark.App. 842, 2010 WL 5132119. Our supreme
court vacated that decision in Tyson Poultry, Inc. v.
Narvaiz, 2012 Ark. 118, 388 S.W.3d 16. While this
courts decision denied the employee benefits after he was
terminated while on light duty after a compensable injury
when he called his supervisor a "mother-f— king
bitch," our supreme court held Narvaiz was entitled to
TTD benefits for the remainder of his healing period after he
was terminated for misconduct, as the misconduct did not
amount to a refusal of suitable employment. Presumably, the
ALJ mistakenly cited this courts case but actually relied on
our supreme courts holding in awarding Kaylor TTD benefits.
Narvaiz was analyzed under Arkansas Code Annotated
section 11-9-526 (Repl. 2012), which provides, "If any
injured employee refuses employment suitable to his or her
capacity offered to or procured for him or her, he or she
shall not be entitled to any compensation during the
continuance of the refusal, unless in the opinion of the
Workers Compensation Commission, the refusal is
justifiable." In the present case, the ALJ clearly
analyzed Kaylors entitlement to TTD benefits under section
standard used for determining entitlement to TTD benefits
differs depending on whether the injury is a scheduled injury
or a nonscheduled injury. In this case, it is undisputed that
Kaylors injury is a scheduled injury. For a nonscheduled
injury, TTD benefits are allowed only when a claimant is
within his or her healing period and suffers a total
incapacity to earn wages. Fendley v. Pea Ridge Sch.
Dist., 97 Ark.App. 214, 245 S.W.3d 676 (2006).
Conversely, it is unnecessary for a claimant with a scheduled
injury to prove a total incapacity to earn wages in order to
be entitled to TTD benefits. Id. (citing Wheeler
Constr. Co. v. Armstrong, 73 Ark.App. 146, 41 S.W.3d 822
(2001)). Arkansas Code Annotated section 11-9-521(a) (Repl.
2012), which applies to scheduled injuries, provides
that a claimant is entitled to TTD benefits "during the
healing period or until the employee returns to work,
whichever occurs first" See also Robertson
v. Pork Grp., Inc., 2011 Ark.App. 448, 384 S.W.3d 639.
If the claimant is either outside the healing period or has
returned to work, he or she is not entitled to benefits.
present case, neither the Commission nor the ALJ made any
findings with regard to the requirements set forth in section
11-9-521(a). While this court has held that section 11-9-526
may be applicable in determining TTD benefits for scheduled
injuries— see Turcios v. Tyson Foods,
Inc., 2016 Ark.App. 471, 504 S.W.3d 622, and Gomez
v. Crossland Constr. Co., Inc., 2011 Ark.App. 787, 2011
WL 6189473— it has not held that such application may
be made without first making findings regarding the
requirements set forth for determining TTD benefits for
scheduled injuries under subsection (a).
Commission has the duty to make factual findings and
conclusions "with sufficient detail and particularity to
allow us to decide whether its decision is in accordance with
the law." Parker v. Advanced Portable X-Ray,
LLC,2014 Ark.App. 11, at 5, 431 S.W.3d 374, 379. This
court does not review Commission decisions de novo on the
record, nor do we make findings of fact the Commission should
have made but did not. Stallworth v. Hayes Mech.,
Inc.,2013 Ark.App. 188, 2013 WL 1010392. If the
Commission fails to make specific findings of fact on an
issue, it is appropriate for this court to reverse and remand
the case for such findings to be made by the Commission.
Id. Because the ...