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., by: Douglas M. Carson, for appellant.
Medlock and Gramlich, LLP, by: Jered Medlock, for appellee.
MEREDITH B. SWITZER, Judge
City of Fort Smith (Fort Smith) appeals the Workers'
Compensation Commission's (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
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 Kaylor's 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.
found Kaylor had proved she was entitled to TTD benefits from
October 13, 2017, until March 7, 2018. The Commission
affirmed and adopted the ALJ's opinion as its
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
appeals involving workers' compensation claims, this
court views the evidence in the light most favorable to the
Commission's 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. Our supreme court vacated
that decision in Tyson Poultry, Inc. v. Narvaiz,
2012 Ark. 118, 388 S.W.3d 16. While this court's 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 court's case but actually relied on our supreme
court's 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 Kaylor's entitlement to TTD benefits under
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
Kaylor's 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-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. 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