                                Cite as 2014 Ark. App. 11

                ARKANSAS COURT OF APPEALS
                                   DIVISIONS II & III
                                     No. CV-13-495


                                                 Opinion Delivered   January 8, 2014
CONNIE J. PARKER
                              APPELLANT          APPEAL FROM THE ARKANSAS
                                                 WORKERS’ COMPENSATION
V.                                               COMMISSION [NO. G201074]


ADVANCED PORTABLE X-RAY, LLC                     REVERSED AND REMANDED ON
                    APPELLEE                     DIRECT APPEAL; AFFIRMED ON
                                                 CROSS-APPEAL




                            KENNETH S. HIXSON, Judge


       This is a workers’ compensation case. Connie Parker worked for Advanced Portable

X-Ray, LLC (“APX”), a mobile x-ray company. Parker’s duties included driving the

company van that carried the portable x-ray machine and providing x-ray services to patients.

It is not disputed that on September 29, 2011, Parker was driving the company vehicle and

providing employment services when she was rear-ended by another vehicle and sustained

whiplash-type injuries. APX continued to pay Parker her regular wages while she was off

work, but on January 26, 2012, prior to Parker being released to return to work, APX

terminated Parker, and her last paycheck was for the pay period ending January 15, 2012.

       On January 30, 2012, Parker sent a letter to the EEOC explaining her claim of

wrongful termination in layman’s terms. In March 2012, Parker filed a formal EEOC

discrimination charge against APX, claiming that APX violated the Americans with
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Disabilities Act when it fired her. In April 2012, Parker and APX settled the EEOC charge

in a confidential mediation session wherein APX agreed to pay Parker “lost wages” of

$60,000, less applicable taxes, in exchange for Parker not instituting a lawsuit under the

Americans with Disabilities Act and Parker agreeing to “resign.” On April 26, 2012, after

withholding the appropriate taxes, APX wrote a check to Parker in the amount of $47,485

referencing a single pay period, the date of April 27, 2012. The following day, on April 27,

2012, Parker tendered a one-sentence “resignation” from her job with APX “in keeping with

the terms of our settlement” of the EEOC charge.

       In August 2012, Parker’s workers’ compensation claim proceeded to a hearing. Parker

alleged she was entitled to medical benefits, temporary-total-disability (TTD) benefits, and

attorney’s fees.1 APX controverted the claim and further alleged in the alternative that APX

was entitled to a credit in the amount of $60,000 against any workers’ compensation benefits

as a result of the EEOC settlement proceeds. The Administrative Law Judge (ALJ) concluded

that Parker had established the compensability of her injuries; that APX was responsible for

medical treatment as reasonably necessary in connection with the compensable injuries; and

that Parker was entitled to TTD benefits beginning January 16, 2012, until a date yet to be

determined. However, the ALJ rejected APX’s arguments (1) that Parker was “judicially

estopped” from seeking TTD in light of her assertion in the EEOC documents that she was


       1
         Parker contended that she had compensable injuries to her cervical and thoracic spine,
as well as to her head, lower back, left shoulder and arm. Only her cervical and thoracic spine
injuries were deemed compensable. She does not appeal from the denial of her claim with
regard to her head, lower back, left shoulder and arm. Our discussion is limited to the injuries
for which she was compensated.

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able to work, and (2) that APX was entitled to a statutory credit for the money it paid Parker

in the EEOC mediation settlement.

       APX appealed to the full Commission. After its de novo review, the Commission

awarded Parker medical benefits that were reasonably related to treat her compensable

thoracic and cervical injuries, TTD to a date yet to be determined, and her attorney’s fees.

The Commission declined to find Parker “judicially estopped” from claiming TTD. The

Commission, in contrast to the ALJ, determined that APX was entitled to a credit for “lost

wages” it sought pursuant to Ark. Code Ann. § 11-9-807(b) (Repl. 2012). Parker filed a

direct appeal, and APX filed a cross-appeal.

       Parker contends on direct appeal that the Commission erred in awarding the $60,000

credit to APX. We reverse and remand on direct appeal. On cross-appeal, APX contends

that the Commission erred in refusing to apply the doctrine of judicial estoppel to Parker’s

claim for TTD benefits, and, alternatively, that the Commission’s decision to award her TTD

benefits was not supported by substantial evidence. We affirm on cross-appeal.

       We first address Parker’s direct appeal. She contends that the Commission erred by

awarding APX a credit pursuant to Ark. Code Ann. § 11-9-807 (Repl. 2012), which states:

       Credit for compensation or wages paid.

       (a) If the employer has made advance payments for compensation, the employer shall
       be entitled to be reimbursed out of any unpaid installment or installments of
       compensation due.

       (b) If the injured employee receives full wages during disability, he or she shall not be
       entitled to compensation during the period.



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As relevant here, the Commission noted the following language of Parker and APX’s EEOC

mediation settlement agreement:

       7. As evidence of a good faith effort to resolve EEOC Charge Number 493-2012-
       00562, [APX] offers and [Parker] accepts the following proposal of settlement or (the
       parties agree): A. [APX] agrees to pay [Parker] and her attorney the sum of Sixty
       Thousand Dollars ($60,000.00) as lost wages, in which all applicable federal, state and
       local taxes will be withheld on this sum . . . .

(Emphasis added.)

The ALJ found that APX had not shown that both parties intended for the settlement to be

considered advance payments for compensation under subsection (a) and therefore, refused

to grant APX the $60,000 credit. The ALJ did not discuss the applicability of subsection (b)

and whether the settlement proceeds were full wages received during her disability.

       Before the Commission, whose decision we review, APX did not argue that it was

entitled to a credit for advanced wages under subsection (a) as discussed by the ALJ; rather,

APX instead argued that it was entitled to a credit for “full wages” received during disability

under subsection (b). The Commission decided that APX was entitled to a $60,000 “credit

for lump sum wages that it paid the claimant in April 2012” under subsection (b) as “full

wages” received during disability. The Commission did not discuss the applicability of

“advanced wages” under subsection (a).

       Parker argues in this appeal that subsection (b) does not apply in this instance and that

APX did not prove its entitlement to this statutory credit. We cannot address the merits of

her argument at this time because the Commission failed to render adequate findings upon

which we can perform appellate review.


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       In the Commission’s “Opinion and Order” on this issue, the Commission recites the

bare statute; states that APX is no longer seeking credit as “advance payments” under

subsection (a); and repeats APX’s request for a $60,000 credit in lost wages it paid to Parker.

The Commission then simply concludes:

       The Full Commission agrees. Ark. Code Ann. § 11-9-807(b) (Repl. 2002) [sic]
       expressly provides that an injured employee shall not be entitled [to compensation]
       during the period that she receives full wages. Pursuant to a Mediation Settlement
       Agreement, the respondent-employer paid the claimant the sum of $60,000.00 in “lost
       wages, in which all applicable federal, state and local taxes will be withheld on this
       sum.” The Full Commission finds that the respondent-employer is entitled to a credit
       for lump sum wages that it paid the claimant in April 2012.

The Commission provides no explanation of how Parker’s EEOC mediation settlement

proceeds described therein as “lost wages” equates to “full wages” under § 11-9-807(b). We

are required to strictly construe workers’ compensation statutes, meaning that we are to

narrowly construe the statute, nothing to be taken as intended unless clearly expressed.

St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673,         S.W.3d     .

       The Commission is not an appellate court. Serrano v. Westrim, Inc., 2011 Ark. App.

771, 387 S.W.3d 292. The Commission reviews cases appealed to it de novo, and the duty

of the Commission is not to determine whether there was substantial evidence to support the

ALJ’s findings; rather, it must make its own findings in accordance with the preponderance

of the evidence. Id, see also Pharmerica v. Seratt, 103 Ark. App. 9, 285 S.W.3d 699 (2008).

       The Commission is obliged to make findings and conclusions with sufficient detail and

particularity to allow us to decide whether its decision is in accordance with the law. Vijil v.

Schlumberger Tech. Corp., 2011 Ark. App. 87; Peters v. Doyle, 2009 Ark. App. 722. When


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those details are lacking, it is appropriate to reverse and remand to the Commission so that

it can provide a decision upon which we can conduct a meaningful review. See Cagle

Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992). Here, the

Commission did not make findings and conclusions with sufficient detail and particularity to

allow us to decide whether its decision is in accordance with the law. We remand on direct

appeal for the Commission to make findings and conclusions with sufficient detail and

particularity on the applicability of Ark. Code Ann. § 11-9-807(b) and the amount of the

credit, if any, available to APX under the facts of this case.

       On cross-appeal, APX asserts that the Commission erred in not finding Parker to be

judicially estopped from claiming entitlement to TTD, and furthermore, that even absent

estoppel, the decision to award TTD is not supported by substantial evidence. We disagree

with both arguments and affirm on cross-appeal.

       APX asserts that Parker alleged inconsistent positions pertaining to her ability/inability

to work. In grossly simple terms, APX asserts that in her EEOC claim, Parker alleged she was

able to work with reasonable accommodation.            On the other hand, in her workers’

compensation claim, Parker asserted she was unable to work so as to receive TTD benefits.

As to judicial estoppel, the Commission found, “The respondent [APX] did not prove that

the claimant is judicially estopped from asserting entitlement to temporary total disability

benefits in accordance with Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004).” This

is unlike the direct appeal in which the Commission did not cite any authority or rationale

to support its decision and we were unable to perform a meaningful review. Here, the


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Commission expressly relied on Dupwe as precedent for its conclusion, and, therefore, that

requires us to analyze Dupwe within the context of this case.

       The Arkansas Supreme Court in Dupwe undertook an exhaustive analysis into the

doctrine of judicial estoppel beginning with the first Arkansas case to use the term “judicial

estoppel” and expanded its analysis through the use of the legal encyclopedias Corpus Juris

Secundum and American Jurisprudence and case law from the United States Supreme Court

and other states. Some pertinent legal principles quoted in Dupwe are particularly appropriate

and relevant to our analysis:

               The best beginning point in our analysis is Muncrief [v. Green, 251 Ark. 580, 473
       S.W.2d 907 (1971)] where this court stated that the appellee in that case was asserting
       judicial estoppel, “by which a party may be prevented from taking inconsistent
       position in successive cases with the same adversary.”

              ....

       In discussing judicial estoppel in Daley [v. City of Little Rock, 36 Ark. App. 80, 18
       S.W.2d 259 (1991)], the court of appeals cited to Rinke [v. Weedman, 232 Ark. 900,
       341 S.W.2d 44 (1960)], for the proposition that the doctrine of judicial estoppel is of
       “vague application.”

              ....

       In House [v. Wakefield, 42 Tenn. 325 (1865)], the Tennessee Supreme Court noted
       that the judgment at issue was:

              a judgment regularly rendered upon the solemn admissions of the parties made
              in the court of the suit, and with the view of such admission being acted upon by
              the court.

              ....

               The principle laid out in House and characterized as “judicial estoppel” in C.J.S.
       is not a principle unfamiliar to this court.


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              ....

       In Cox v. Harris, 64 Ark. 213, 215, 41 S.W. 426 (1897), this court stated, “It is a
       familiar principle of law that one is not, as a rule, allowed to avail himself of
       inconsistent positions in a litigation concerning the same subject matter.”

Dupwe, 355 Ark. at 529–30, 140 S.W.3d at 467–70. (Emphasis added.)

       It is to be noted that each of the precedents set forth above and relied on by the Dupwe

court discusses actual successive cases between the same parties concerning the same subject

matter, and the previous court relied upon the alleged prior inconsistent position. The Dupwe

court went on to distinguish between the doctrine of judicial estoppel and the doctrine against

inconsistent positions. There is a difference. The doctrine of judicial estoppel applies to cases

actually litigated; the doctrine against inconsistent positions has a broader purview. The

Dupwe court explained the difference:

       The doctrine against inconsistent positions is much broader than judicial estoppel.
       Judicial estoppel prohibits a party from manipulating the courts through inconsistent
       positions to gain an advantage. The doctrine against inconsistent positions may also
       apply to positions taken outside of litigation.

Dupwe, 355 Ark. at 531, 140 S.W.3d at 470. (Citation omitted.)

       The Dupwe court cited examples of how inconsistent positions taken outside of

litigation may violate the doctrine against inconsistent positions but not violate the doctrine

of judicial estoppel. In Wenderoth v. City of Ft. Smith, 256 Ark. 735, 510 S.W.2d 296 (1974),

the appellants previously in a public proceeding contended that a strip of land was public

property; and, later in a lawsuit against the city, the appellants contended that the same strip

of land was private. The court estopped the appellants from taking inconsistent positions. In

Dicus v. Allen, 2 Ark. App. 204, 619 S.W.2d 306 (1981), the appellees previously relied on

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a Whitfield survey and later in court, the appellees attempted to reject the Whitfield survey.

The court stated, “We believe it would be inherently unfair to permit these appellees to take

these inconsistent positions, and we, therefore, hold that they are estopped[.]” Dicus, 2 Ark.

App. at 209, 619 S.W.2d at 308.

       The Dupwe court concluded its analysis of judicial estoppel vis-a-vis the doctrine of

inconsistent positions by stating: “Thus, it is apparent that the rule against assuming

inconsistent positions in litigation, or in other words, judicial estoppel, is a branch of the

doctrine against inconsistent positions.” Dupwe, 355 Ark. at 532, 140 S.W.3d at 471. The

Dupwe court then set about to define the elements of judicial estoppel in Arkansas. The

Dupwe court adopted the rationale from New Hampshire v. Maine, 532 U.S. 742 (2001): “A

party’s earlier position must have been judicially accepted such that the inconsistent position

in the later proceeding creates the perception that the first or second court was misled[.]”

(Emphasis added.) The Dupwe court adopted the rationale from 21 C.J. Estoppel, § 233 at

1229–30 (1920): “1. The position must have been successfully maintained in a former trial.”

(Emphasis added.) Finally, the Dupwe court concluded that the following elements must be

present to state a prima facie case of judicial estoppel: (1) a party must assume a position

inconsistent with a position taken in an earlier case, or with a position taken in the same case;

(2) a party must assume the inconsistent position with the intent to manipulate the judicial

process to gain an unfair advantage; (3) a party must have successfully maintained the position

in an earlier proceeding such that the court relied upon the position taken; and (4) the




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integrity of the judicial process of at least one court must be impaired or injured by the

inconsistent positions taken.

         The Dupwe opinion provides an exhaustive analysis by our supreme court, making a

distinction between the doctrine of judicial estoppel and the doctrine against inconsistent

positions. We must adhere to the language carefully selected by the Dupwe court in its four

prima facie elements of judicial estoppel. Applying Dupwe, it is apparent to this court that for

the doctrine of judicial estoppel to apply, the alleged inconsistent positions must be contained

within an “earlier case” as set forth in element (1), and that the alleged inconsistent positions

must have been successfully maintained in an earlier proceeding such that the earlier court

relied upon the position taken, as in element (3). Here, the alleged previous inconsistent

position regarding the appellant’s ability to work was made, if at all, in an EEOC proceeding

that was settled prior to litigation and not within an “earlier case”; and, no earlier court relied

upon that alleged inconsistent position. We hold that the Commission did not err in finding

that the doctrine of judicial estoppel was not applicable in this case, and we affirm on this

issue.

         Moving to the issue of Parker’s entitlement to TTD, we review the evidence in a

workers’ compensation appeal in the light most favorable to the decision of the Commission

and affirm if it is supported by substantial evidence. Tucker v. Bank of Am., 2013 Ark. App.

585. Substantial evidence is evidence that a reasonable mind might accept as adequate to

support a conclusion. Id. On review, the issue is not whether we might have reached a




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different result or whether the evidence would have supported a contrary finding; if

reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id.

       APX contends that there is no substantial evidence to support the Commission’s award

of TTD to Parker from January 16, 2012, to a date yet to be determined. We disagree. TTD

is that period within the healing period in which the employee suffers a total incapacity to

earn wages. RPC, Inc. v. Hargues, 2011 Ark. App. 264. The healing period is that period for

healing of the compensable injury, which continues until the employee is as far restored as the

permanent character of the injury will permit. Smallwood v. Ark. Dep’t of Human Servs., 2010

Ark. App. 466, 375 S.W.3d 747. If the underlying condition causing disability has become

stable, and nothing further in the way of treatment will improve the condition, then the

healing period has ended; it is a question of fact for the Commission to answer. Id.

       The evidence presented at the hearing demonstrated that Dr. Katz of Northwest

Arkansas Neurosurgery Clinic took Parker off work in December 2011. Dr. Ennis, an

interventional pain specialist, opined that as of January 9, 2012, Parker was unable to travel

due to the pain caused by her compensable injury. APX’s office manager stated in writing

on January 9, 2012, that Parker “will NOT be allowed to return to work until we have

received a medical release from her attending physician and she can totally perform all areas

of her job description.” (Emphasis in original.) There was no evidence that Parker had

ever been released from her attending physician’s care. On May 22, 2012, Dr. Piechal, an

osteopathic physician from the Healing Arts Medical Center, stated that Parker was to remain

off work “indefinitely.” This was the evidence that the Commission deemed most credible


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and persuasive, and we cannot say that reasonable minds could not conclude that Parker was

entitled to TTD from and after January 16, 2012. We affirm the award of TTD.

       Reversed and remanded on direct appeal; affirmed on cross-appeal.

       HARRISON, WYNNE, and GLOVER, JJ., agree.

       PITTMAN and WOOD, JJ., dissent.

       RHONDA K. WOOD, Judge, dissenting. I respectfully disagree with the majority’s

decision reversing and remanding the Commission’s finding that the employer was due a

$60,000 credit against the amount of benefits that the employer must pay to appellant. The

majority writes that “[w]e cannot address the merits of her [appellant’s] argument at this time

because the Commission failed to render adequate findings upon which we can perform

appellate review.” The majority’s concern is that the Commission did not explain how

appellant’s settlement for “lost wages” would equate to “full wages” under Arkansas Code

Annotated Section 11-9-807(b), and they contend this is necessary for appellate review.

       The reason the Commission did not address the correlation between “lost wages,” the

language in the settlement agreement, and “full wages,” the language required by statute, is

because appellant did not raise this issue to the ALJ or the Commission. Notably, appellant

has not even raised this issue on appeal. The long-standing precedent of this court is that we

will not address issues raised for the first time on appeal nor will we raise issues on appellant’s

behalf ourselves.1 St. Edward Mercy Med. Ctr. v. Chrisman, 2012 Ark. App. 475, at 6, __

S.W.3d. __, __. It is for this reason that I dissent.

       1
        There are exceptions to this, but they are inapplicable in the present case.

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       The issue raised by appellant to the Commission and on appeal was that she did not

intend for the $60,000 payment under the settlement agreement to be wages. In an appeal

from a decision of the Commission, we review the evidence in the light most favorable to the

Commission and affirm if there is substantial evidence to support the decision. Tucker v. Bank

of Amer., 2013 Ark. App. 585. If reasonable minds could reach the same conclusion as the

Commission, we must affirm. Id.

       The settlement agreement stated that appellant would receive $60,000 for “lost wages.”

Both appellant and appellee signed the agreement. Income taxes were withheld from the

$60,000. These facts alone are substantial evidence for the Commission to find that the

$60,000 settlement amount was for wages, thus entitling the employer for a credit under the

statute. We have held that “full wages” are “the money rate paid to recompense services

rendered.” St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, at 6, __ S.W.3d. __,

__. Viewing the evidence in the light most favorable to the Commission’s findings, one sees

that the settlement agreement’s statement that the payment was for “lost wages” equated to

payment of monies to compensate the appellant for employment services, our definition of

“full wages.” It was for the Commission to determine the credibility of the appellant’s

argument that she didn’t intend for the settlement to be wages. It is apparent the Commission

placed greater weight on the written language of the settlement agreement than on appellant’s

self-serving argument. Further explanation by the Commission on remand would not alter

the substantial evidence supporting their decision on the issue on appeal–that the settlement

monies were wages.


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       For the reasons stated above, I would affirm the Commission’s decision. Therefore, I

dissent.

       PITTMAN, J., joins.

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

       Bassett Law Firm LLP, by: Dale W. Brown, for appellee.




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