                              Cite as 2015 Ark. App. 647




                ARKANSAS COURT OF APPEALS
                                     DIVISION II
                                    No. CV-15-465



                                               Opinion Delivered   November 12, 2015

  TYSON FOODS, INC.                   APPEAL FROM THE ARKANSAS
                            APPELLANT WORKERS’ COMPENSATION
                                      COMMISSION
  V.                                  [NO. G309211 and NO. G402139]

  JOSE TURCIOS
                               APPELLEE
                                               AFFIRMED IN PART; REVERSED
                                               AND REMANDED IN PART


                         BRANDON J. HARRISON, Judge

       Tyson Foods, Inc., appeals the Arkansas Workers’ Compensation Commission’s

(Commission) decision to award Jose Turcios additional medical benefits and temporary-

total-disability (TTD) benefits. Tyson makes three points on appeal: (1) the Commission

erred as a matter of law when it awarded temporary-total-disability (TTD) benefits after

Turcios returned to work; (2) substantial evidence does not support the TTD award; and

(3) the Commission’s decision awarding additional medical treatment for Turcios’s knee

injury is not supported by substantial evidence. We affirm in part and reverse and remand

in part.

                                I. Brief Factual Summary


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        Twenty-five-year-old Jose Turcios cleaned Tyson’s corporate buildings in

Northwest Arkansas. He fell at work in August 2013 and again in October 2013. Turcios

reported the August fall and received ibuprofen and ice for his right knee from the

company nurse. He kept working his regular job until he slipped and fell again on his

right knee in October. The October fall was more severe; Turcios reported that he heard

a loud popping noise and felt severe pain. His knee did not improve with conservative

treatment, and a radiology report associated with a December 2013 MRI revealed that

Turcios had suffered a “complex horizontal and oblique tear of the posterior horn and

body of the medial meniscus” and a “suspected chronic partial tear involving proximal and

mid ACL” but that the “MCL and fibular collateral ligament [were] normal.” Tyson

accepted the meniscus injury as compensable and paid for Dr. Terry Sites to repair it

during surgery in February 2014. Tyson, however, controverted medical treatment for the

ACL injury.

        Although Turcios was released to return to restricted-duty work before his knee

surgery occurred, Tyson had no positions available within his restrictions. So Turcios

received TTD benefits until 5 March 2014. On 10 March 2014, Dr. Sites released him to

light-duty work after the meniscus surgery. Tyson provided a position in the mail room

sorting papers, which accommodated Turcios’s work restrictions—including being able to

sit.   Turcios called in sick on March 10, but worked on March 11.           He worked

sporadically until Tyson terminated his employment on 31 March 2014, when he missed

another day of work. Tyson said Turcios was terminated because he had accumulated too




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many points under its attendance policy—including points that had been assessed for three

days of no call/no show.

       During the administrative hearing, Turcios testified that his knee was swollen while

he worked in the mailroom, that he was unable to elevate it, and that “it gave me a lot of

pain.” Turcios said that he missed work in the mail room because of his knee but that he

also missed work while stationed in the mail room for other health problems, including

blood-sugar levels. On cross-examination, Turcios admitted that the mail-room work was

within Dr. Sites’s restrictions and that he called in only twice to let Tyson know he would

be absent after he started the restricted-duty work.

       After the hearing, the administrative law judge (ALJ) found that Turcios sustained

compensable injuries to his right knee “in the form of a MCL tear” and his injuries were

caused by his two work-related falls in August and October 2013. 1 The ALJ, however,

also found that Turcios “failed to prove by a preponderance of the evidence that he

suffered a compensable injury in the form of an ACL tear while employed by [Tyson].”

       The Commission reversed the ALJ in a 2-1 decision and found that Turcios

suffered the ACL injury as a result of his compensable right-knee injury and was entitled

to medical treatment.      The Commission also found that Turcios had proved his

entitlement to TTD benefits from 6 March 2014 through a date yet to be determined.

                                   II. Standard of Review


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  The radiology report specifically states that the MCL was normal and the medial
meniscus was torn. Yet the parties stipulated that “the claimant sustained a compensable
injury to his right knee in the form of a MCL tear on October 29, 2013.” The
Commission used quotation marks for the two stipulations of “MCL tear”—apparently
indicating its understanding that Turcios suffered a torn meniscus, not an MCL tear.
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       In reviewing decisions from the Workers’ Compensation 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. Smith v. City of Ft. Smith, 84

Ark. App. 430, 143 S.W.3d 593 (2004). 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. If reasonable minds

could have reached the Commission’s result, then we affirm. Id.

                                    III. The ACL Injury

       Here, the disputed medical-treatment issue was whether Turcios was entitled to

treatment for his right-knee ACL tear. We affirm the Commission’s decision to award

medical benefits for Turcios’s ACL injury. “An employer shall promptly provide for an

injured employee such medical [ ] services . . . as may be reasonably necessary in

connection with the injury received by the employee.” Ark. Code Ann. § 11-9-508(a)

(Repl. 2013).     The employee has the burden of proving by a preponderance of the

evidence that medical treatment is reasonable and necessary.        Wal-Mart Stores, Inc. v.

Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary

treatment is a question of fact for the Commission, which has the duty to use its expertise

to determine the soundness of medical evidence and to translate it into findings of fact.

Hamilton v. Gregory Trucking, 90 Ark. App. 248, 205 S.W.3d 181 (2005). A claimant may

be entitled to ongoing medical treatment after the healing period has ended if the

treatment is geared toward management of the compensable injury. Patchell v. Wal–Mart

Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).

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         Tyson argues that there is no substantial evidence that Turcios’s ACL injury was a

result of his August or October work-related falls. The evidence, in Tyson’s view, does

not support the Commission’s conclusion because an MRI report indicated the ACL

condition was “chronic”; another doctor Tyson consulted, Dr. Hronas, reported that “the

ACL is intact without findings of acute injury”; Dr. Sites noted that Turcios’s obesity had

contributed to his knee problems; and Dr. Sites could not reliably tell when the ACL

injury occurred and only relied on Turcios’s self-reporting.

         We are not persuaded by Tyson’s arguments. The Commission has the authority

to accept or reject medical opinions, and its resolution of the medical evidence has the

force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84

S.W.3d 878 (2002). In this case, the Commission credited Dr. Sites’s opinion, which he

gave after performing surgery on Turcios’s torn meniscus, that “it is more likely than not

that the work injury described in October of 2013 was the cause of the anterior cruciate

ligament [ACL] injury and the meniscal injuries[.]”            And while the Commission

acknowledged the consulting doctor’s (Dr. Hronas) opinion that “[t]he ACL is intact

without findings of an acute injury,” it specifically credited Dr. Sites’s medical opinion

over Dr. Hronas’s medical opinion.           Because substantial evidence supports the

Commission’s conclusion that treatment for Turcios’s ACL injury was reasonably

necessary treatment connected to his compensable right-knee injury, we affirm on this

point.

                                   IV. The TTD Benefits




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       We now turn to the Commission’s TTD award.                  Tyson argues that the

Commission erred as a matter of law in awarding TTD benefits to Turcios for the period

after he was returned to work. It also argues that substantial evidence does not support the

TTD award.      Because the Commission does not adequately explain its decision, we

reverse and remand for furthering proceedings on this issue.

       Temporary total disability is that period within the healing period in which an

employee suffers a total incapacity to earn wages; the “healing period” for an accidental

injury continues until the employee is as restored as the permanent character of his injury

will permit—and that ends when the underlying condition causing the disability has

become stable and further treatment will not improve that condition. Carroll Gen. Hosp.v.

Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). When the healing period has ended is

a factual determination that the Commission must make, and it will be affirmed on appeal

if supported by substantial evidence. Id.

       Two statutes inform when a claimant may be disqualified from receiving TTD:

Ark. Code Ann. § 11-9-521 and Ark. Code Ann. § 11-9-526. Though the statutes by

their plain language apply only to scheduled injuries, our appellate courts have applied

them to unscheduled injuries, too. See Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 388

S.W.3d 16 (discussing section 526) and Robertson v. Pork Grp., Inc., 2011 Ark. App. 448,

384 S.W.3d 639 (applying section 521).

       Arkansas Code Annotated section 11-9-521(a) (Repl. 2013) provides:

       (a) An employee who sustains a permanent compensable injury scheduled in
       this section shall receive, in addition to compensation for temporary total
       and temporary partial benefits during the healing period or until the
       employee returns to work, whichever occurs first, weekly benefits in the
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       amount of the permanent partial disability rate attributable to the injury, for
       that period of time set out in the following schedule[.]




       Arkansas Code Annotated section 11-9-526 states:

       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[.]

       The Commission cited one case, Pyles v. Triple F. Feeds of Texas, 270 Ark. 729, 606

S.W.2d 146 (Ark. App. 1980), to support its decision, stating that “if, during the period

while the body is healing, the employee is unable to perform remunerate labor with

reasonable consistency and without pain and discomfort, his temporary disability is

deemed total.” Other caselaw, however, seems to state that after the claimant is released

by the doctor and returns to work, even if he remains in his healing period, then the

claimant is no longer incapacitated from earning wages and therefore does not qualify for

TTD. Compare Robertson v. Pork Grp., Inc., 2011 Ark. App. 448, 384 S.W.3d 639 and

Roark v. Pocahontas Nursing & Rehab., 95 Ark. App. 176, 235 S.W.3d 527 (2006) with

Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Section 521

does not define when an employee “returns to work” for purposes of the statute and TTD

benefits. See Farmers Coop. v. Biles, 77 Ark. App. 1, 7, 69 S.W.3d 899, 903 (2002).

       Our court has further held that if an employee is returned to limited-duty work

after a compensable injury, but fired for misconduct or absenteeism unrelated to the

injury, she is not entitled to TTD because her restrictions were being accommodated and

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would have continued had she not been dismissed for cause. See Robertson v. Pork Grp.,

Inc., 2011 Ark. App. 448, 384 S.W.3d 639; see also Roark v. Pocahontas Nursing & Rehab.,

95 Ark. App. 176, 235 S.W.3d 527 (2006) (affirming the Commission that a violation of

an employer’s attendance policy may be grounds for disqualification of TTD benefits).

But there are cases to the contrary. See, e.g., Superior Indus. v. Thomaston, 72 Ark. App. 7,

10–11, 32 S.W.3d 52, 54 (2000) (“[T]he basis for claimant’s employment separation is

irrelevant in determining claimant’s entitlement to temporary total disability benefits.”).

And in the more recent case of Narvaiz, 2012 Ark. 118, 388 S.W.3d 16, our supreme

court affirmed the Commission’s reasoning that an employee’s insubordination and

misconduct did not amount to a refusal of suitable employment under section 526.

       Here, the Commission found that Turcios proved he was entitled to TTD benefits

beginning 6 March 2014 until a date yet to be determined. In reaching this conclusion,

the Commission stated:

       The parties stipulated that the respondent paid temporary total disability
       benefits through March 5, 2014. Dr. Sites returned the claimant to sit-
       down work only on March 6, 2014. The claimant testified that he
       attempted to perform sit-down work only for the respondent, but that he
       suffered from pain and swelling in his injured right leg and consequently was
       unable to perform even sit-down work.

       We remand for the Commission to provide us a more detailed explanation on how

it decided to award TTD benefits to Turcios after Dr. Sites had released him to light-duty

work in Tyson’s mail room. The Commission must make factual findings and legal

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 5–6, 431 S.W.3d 374, 379. As the Commission decision stands now, we
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cannot make a meaningful review of this case. This is so because, in part, the only factual

findings we have by the Commission regarding TTD are in the above-referenced quote.

It is unclear whether the Commission determined that Turcios remained in his healing

period or started a new healing period, whether he suffered a total incapacity to earn a

meaningful wage, whether Turcios “returned to work” within the meaning of section

521, whether Turcios’s absenteeism was related to his compensable knee injury or an

unrelated medical issue, and whether Turcios’s alleged violations of Tyson’s attendance

policy did or did not affect his TTD eligibility under section 526. We therefore reverse

and remand to the Commission for further findings and proceedings consistent with this

opinion on this point.

                                       V. Conclusion

       We affirm the Commission’s decision awarding medical treatment for Turcios’s

right-knee ACL injury. Because we are unable to conduct a meaningful review of the

Commission’s TTD award, we reverse and remand for the Commission to make more

robust factual findings and for it to determine the applicability (or inapplicability) of Ark.

Code Ann. § 11-9-521 and § 11-9-526.

       Affirmed in part; reversed and remanded in part.

       GLADWIN, C.J., and GRUBER, J., agree.

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

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




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