*1 100 claim. The
adverse burden then shifted to to rebut evidence, and it failed appellee’s to do so. None of the exhibits or statements made in its affidavits were controverted by appel- lant, nor did any evidence to appellant present create question of fact as to whether knew of appellee any at wrongful taking the time it received the stock certifícate as collateral.
Affirmed.
Jennings, C.J., Cooper, J., agree. FOODS,
Jack JORDAN v. TYSON INC. CA 94-705 S.W.2d 593
Court of Appeals Arkansas
En Banc delivered Opinion December Opinion Substituted Granting Rehearing *3 Donald E. for Bishop, appellant. Firm, Doss,
Bassett Law by: Angela for appellee. Rogers, We Judge. rendered an Judith previously unpub- case, Foods, lished Tyson this v. Jordan CA 94-705 7, (Ark. 1995), slip op. App. June and reversing remanding case back to the Commission. In Tyson to this response opinion, Foods this court for petitioned that we erred rehearing contending in our decision to reverse the Commission’s decision. After thor- banc, oughly reviewing the case en we grant Tyson’s for and now affirm the Commission’s decision. 4, 1990, On June Jack Jordan sustained a compensable injury to his right shoulder while working Tyson Foods. Compen- sation was and paid, Mr. Jordan off work thirty In days. 1990, of December Mr. Jordan voluntarily working for quit Tyson. 26, Mr. Jordan has not been employed since that time. On April 1991, Mr. Jordan claimed that while he was out getting of bed he stretched his arms and right his shoulder dislocated. Subse- he filed a claim quently, for additional benefits on June 1991. The Commission found that Mr. Jordan had failed aby to prove preponderance evidence that he remained within his heal- ing period through December 1991. On Mr. Jordan appeal, that the argues Commission’s find- that he failed to prove entitlement to additional benefits is not by substantial supported evidence. We disagree. cases,
In workers’ compensation claimant has the of burden proving by preponderance of the evidence the com-
103 Co., Ark. App. 38 Logging Bates v. Frost his claim. of pensability denies a claim the Commission (1992). Where 664 827 S.W.2d of burden proof, to meet his failure the claimant’s because of we affirm review requires standard substantial evidence a substantial if displays its opinion the Commission’s Co., Pulpwood v. American of relief. Johnson basis for the denial review, (1992). our making 826 S.W.2d 38 Ark. App. to deter- the Commission the function recognize that it is to be weight given of the witnesses and credibility mine the to believe not required The Commission is their testimony. witness, and may but accept other any of the claimant or testimony testimony those portions of fact findings only translate into Texaco, Inc., Ark. v. McClain deems of belief. worthy it 218, And, (1989). has the author- the Commission to deter- authority or medical ity reject to accept force. Id. and probative mine its medical soundness First, any Mr. Jordan failed to abstract we note that case. The only in this medical evidence presented was a of his to abstract portion case that Mr. Jordan chose well estab It is testimony. wife’s his testimony portion all relevant material to abstract required lished 4-2(a)(6). In Ark. Ct. R. Sup. to the issues on appeal. pertaining relevant abstract all failed to adequately *4 case has Lindsey v. 4-2(a)(6). Rapley See with Rule evidence and comply (1982). Co., S.W.2d 844 Const. abstract, deficient flagrantly Mr. Jordan’s Despite restricting or prohibit that there is no record indicates 26,1991, and Decem working Mr. Jordan from between 2,1991. fact, he had been actively Mr. testified that Jordan ber found time. The Commission during this seeking employment evidence indicating medical that Mr. Jordan offered insufficient he or that remained healing he remained within his period that The of time. working during period from totally incapacitated totally that claimant was “any noted that indication claimant. ... from the directly comes incapacitated working with conjunction when considered testimony Claimant’s the preponderance evidence of the record does not constitute other record, cannot reviewing credible evidence.” After the Commission’s denial is no substantial basis for say that there total benefits. of additional temporary Next, Mr. Jordan that there is no substantial evidence argues to the Commission’s is not support Tyson liable for his additional medical expenses.
The record reveals that Mr. Jordan did not until notify Tyson after he sought medical treatment and after surgery had been per- formed. It is also clear that Mr. Jordan did not return to his pri- mary treating who him at physician treated the time of his com- pensable The injury. record indicates that Mr. Jordan was treated an by unauthorized The record also physician. reveals that Mr. Jordan filed the claim for medical benefits with his wife’s insur- ance, then waited several after his surgery months and after he had hired attorney an he had notify Tyson that had recurrence of his compensable injury was in need of treatment. 1993)
Arkansas Code Annotated 11-9-514 (Supp. § provides that treatment or services furnished or prescribed by statute, any physician other than the ones selected according the treatment, except emergency shall be at the claimant’s expense. The Commission found that the medical treatment received Mr. and, therefore, Jordan was unauthorized Mr. Jordan was respon sible for the costs. We cannot that there say is no substantial evi dence to Commission’s decision based on the record before us.
Mr. Jordan also contends that the Commission failed to make as to whether findings his medical treatment was emergency treat- ment. Tyson
As
out in
points
its brief
as the record dis
plays, this argument was not raised below before
ALJ
or
before the Commission. Because we do not consider issues raised
for the
time
first
we decline to address Mr.
appeal,
Jordan’s
Dist.,
final
See
v.
point. Mosley McGehee School
36 Ark. App.
(1991).
To it is to start understand situation with our the first of this case. unpublished opinion appeal Foods, v. Tyson that Jordan CA 93-258 opinion, slip opinion 2, 1994) (Ark. began by stating: this court February This an from the Workers’ Compensation appeal that had failed to Commission’s decision appellant he the evidence that enti- prove by a preponderance benefits or additional med- disability tled to total temporary ical treatment.
The that on June then out pointed while right to his shoulder work- injury sustained compensable dislocated his shoulder appellant allegedly appellee; 26, 1991, when he was longer working no again April incident; that he received after the second appellee; law judge’s Commission reversed administrative award of medical total bene- expenses temporary Our through fits December 1991. opin- said, benefits, then with to the regard ion “the had ‘offered insuf- simply stated medical evidence’” to his claim. And the ficient *6 106
added, “Other than making this bald the Com- pronouncement, mission does state facts in of its conclusions.” The last paragraph stated: opinion
We conclude that this case should be remanded to the finding Commission for on the issue specific of whether appellant entitled to total temporary benefits. In order that the be case not decided piecemeal on appeal, we will not address appellant’s remaining issues on appeal. The case came back to this court after the Commission’s issued, on remand and a division of this court issued 7, another on opinion June 1995. But before discussing opin- ion, isit to important closely examine the Commission’s decision that was issued in our to first response calling for “a specific the issue of whether entitled appellant is total temporary disability.” examination, this making we in keep should mind that (1) case involves two only issues: whether is enti- (2)
tled to disability; and whether entitled medical benefits for of the treatment received payment for the 26, dislocated shoulder he sustained on April 1991. It should also be remembered that appellant had sustained a com- 4, 1990, pensable to that injury shoulder June while working 2, 1994, for the appellee. Not our only had of February (and so stated that issue had therefore become the law of the case), but had admitted appellee this fact and had med- paid ical for that expenses injury.
Thus, the case present clearly involves question of whether appellant’s dislocation of same shoulder on April home, while at was a recurrence of the June injury. Bond, In Bearden Lumber v.Co. 644 S.W.2d (1983), 321 “recurrence,” in of discussing we meaning said:
We conclude all our cases which a second of medical period complications follows an acknowledged compensable injury have the test applied set forth in Williams, Williams Co. America v. 232 [Aluminum Ark. — (1960)] S.W.2d that where the second period medical found complications is to be a natural and result probable first injury, employer remains *7 has episode the second it is found that Only liable. where that lia- intervening cause is from an independent resulted in variance the be some may While there bility affected. there has been no principle, the words used to describe test, i.e., a causal whether there is the basic from departure the connection between two episodes. Equip- at 324. Accord McDonald
7 Ark. at App. (1989). Turner, S.W.2d 936 ment Co. v. 26, 1991, dis- April with the that proposition In keeping injury, of June 1990 work-related location was a recurrence said, had find that in its first decision “[W]e he has failed to even injury, if claimant suffered compensable evidence that he is entitled to prove by preponderance bene- additional treatment or medical stated, of had “On fits.” Our reversal and remand that decision 26, 1991, again dislocated shoulder allegedly his April air,” in we remanded when he was his arms stretching we were to determine from the Commission’s because “unable evidence, if insufficient.” Thus it any, decision what found we even that were not sure whether the Commission appears But in its sec- found that the dislocated his shoulder. decision, question ond the Commission did not address whether the 1991 shoulder dislocation had occurred or 4, 1990, it was a recurrence the June work-related whether injury.
In our second which the has reversed opinion, majority today review, out the by granting appellee’s petition pointed fact that the Commission its second did even dis- decision issue, cuss the and we quoted recurrence from Commission’s the following language: that Court of has we elabo- Appeals requested [T]he rate our “offered that claimant has insufficient he within his indicating medical evidence remained or he through totally that date remained healing period of time.” working during incapacitated period We this on the facts contained the record. premised the record contains no medical records Firstly, absolutely Furthermore, claimant off work. there no med- taking releasing ical evidence claimant return to work. How- ever, there is evidence offered claimant in his deposi- 4, 1991, tion dated September early that as as mid July, 1991 he was capable working. deposition, his claimant testified that he was actively seeking employment having applied at at a unemployment office and local hospi- tal. Claimant offered no indication that he refused any employment due his work-related injury.
It clear seems that the above language based assumption appellant’s shoulder dislocation on April i.e., was a recurrence the June there was injury, a causal connection between the two See Bearden episodes. Lum- Bond, ber Co. v. supra. The Commission’s first decision said it *8 was based on that and the assumption, appellant his argued first brief in the from the appeal Commission’s second decision as follows:
It is initially pointed out that in initial its and order, the Commission declined to decide Mr. whether Jor- 26, 1991, dan suffered a compensable on injury and April based its decision on the that he did assumption suffer such (Abstract 23-25). (The an injury. Commission’s order and opinion on remand makes no reference this question.) fact, In view of such this Court’s review of the Commis- sion’s order will necessarily be based on the same assump- tion, it and is therefore unnecessary argue the facts and law clearly establishing Mr. Jordan’s shoulder sepa- ration of April was a recurrence of his compensable 4, compensable of June injury 1990.
Appellant’s Brief at 30. course,
Of the did not appellee with the agree above con- tention and to it replied as follows:
Here, the at not the time of the working alleged recurrence. The appellant’s unemployed status was 1990, 4, the result of his of June compensable injury but rather result a conscious decision to work quit because of the distance to commute required to and from work, (Tr. 36) and his decision to not seek employment elsewhere, (Tr.27).
Appellee’s Brief at 11. (issued situation, our second above
Faced with the
con-
7, 1995)
with the
agreed
appellant’s
stated that
June
tention,
by
appel-
given
the evidence
and we then discussed
for the shoulder
the lant
who treated
doctors
26,
in that
conclusion
1991. Our
dislocation sustained
only by
benefits
deny
“the
could
was that
regard
our duty
that was
recognized
evidence.”We
the medical
ignoring
to the Commis-
favorable
most
light
to view
by
if it was supported
to affirm that decision
decision and
sion’s
However,
Industries
Deffenbaugh
we cited
evidence.
substantial
(1993),
v.
Johnson
v.
313 Ark.
On this the the opinion petition point, has, in Arkansas ignored Supreme all due respect, simply Court and Rule which 2-3(g), provides: Court of Appeals be used to call atten-
The for should petition rehearing fact which the is opinion tion errors of law or specific are the case thought expected argue to contain. Counsel briefs, the on original in the and brief is fully a mere not to afford an for repetition intended opportunity argument of the considered the court. already by rule, Our court has that under which supreme said was for- Rule the merly of the repetition original argument is inap- 198, 206A-B, Butler propriate, Mfg. Hughes, Co. v. 214, 215, (1987) 731 S.W.2d (opinion rehearing), and that considered, Warren, such an will argument not be Warren v. 528, 537B, Ark. (1981) (opinion peti- tion for rehearing).
There is no what the question but issue dis- ability fully argued the by parties original the briefs filed in this case. At time the June was issued this court the three judges to that knew agreeing as much about that issue as they today. do new has been Nothing pre- sented on the issue by the It only rehearing. rep- etition of original argument under Rule 2-3(g) should not be considered.
The opinion granting rehearing also faults failure to any “abstract medical evidence.” I think that comes too late also. Not only is it akin very to the Rule 2- closely thing 3(g) obviously designed to but I prevent, agree do there is defect in any abstract. appellant’s Clearly purpose an abstract is to inform the of the court necessary matters to its determination of the case. case This was sent back to the Com- mission for specific findings. Apparently the court majority now those considers to be findings adequate, has abstracted the decisions of and the A administrative law judge. law portion judge’s decision is abstracted as follows:
The medical are with reports replete references to recurrent dislocation or subluxation. There is no medical however, report, ultimate specifically answering the ques- sense, however, tion. Common that each dictates time a shoulder is dislocated that some is done to damage Therefore, structure. a subsequent nontraumatic disloca- *10 tion of the shoulder that was the of a subject traumatic compensable is dislocation obviously causally related to the traumatic dislocation. This conclusion based upon the medical evidence referring to recurrent shoulder dis- It locations. that concluded the claimant’s shoulder dis-
Ill the com- recurrence of is a of April location compensable. in itself injury pensable abstract with the had appellant’s The no appellee problem fact, and, in its argue, in did not even the medical decision, med- that the from the Commission’s brief on appeal claim support appellant’s was not to ical evidence sufficient point on this The brief disability. appellee’s total for temporary because should affirmed be opinion Commission’s argued for the was not available to total temporary “at the time and earning wages that he was not working reason recurrence.” alleged Therefore, medical evi- a abstract of lack of sufficient not, granting in a valid reason for my dence is opinion, — for If that was ever a valid rehearing. point petition appellee’s — valid a not think it it is not a on petition and I do point Rule does not It does violence to which rehearing. 2-3(g) for The to be aby petition rehearing. allow the case for reargued to sup- and the of substantial evidence question abstract issue no liability the Commission’s for appellant’s port were court’s second by shoulder dislocation resolved for in this case on June 1995. The petition issued on this the same rehearing point says thing appellee’s simply for had at the we The opinion. petition brief said time issued for the findings does contend that substituted our rehearing dis- made Commission on findings however, remand that does not ask that we ability point; appellee rehear- argues to the commission. It point simply its petition the evidence is sufficient to the Commission’s is, course, it on that point. argument This the same in the it reverse made brief filed before the to opinion now seeks State, was handed down. Pannell v. (1995), our court out does supreme 2-3(g) that Rule pointed allow a case to be a reargued by petition
said, “If we were to be much allow such there would practice finality appellate less opinions.” however, opin- I will that on the second our agree, point what it does call ion of June attention of law. Our held that the specific considers error “clearly for the shoulder dislocation was April 1991 performed *11 argument treatment” and therefore emergency appellee’s was misplaced. was unauthorized medical treatment “At say: On this does petition very point, least, should have remanded to the Full Commission this Court I for a While think it doubtful that fair- issue.” the surgery minded could reach the conclusion that persons treatment,” will I concede that this is valid “emergency I and would point rehearing, agree to make however, a remand I do not reverse agree simply on this point; on this point.
Therefore, I rehearing. dissent from opinion granting
JONES-BLAIR COMPANY v. HAMMETT Lucy
d/b/a
and Interiors
Conway Carpets
CA 94-949
Court of Appeals Arkansas
En Banc delivered December Opinion