*1 reversed, and tions should be the case dismissed. trial reasons that the court
Although opinion prevailing submitted the issue to the neither accomplice liability jury, properly nor the has State advanced explanation plausible why we have a model instruction declaration jury providing as a matter of if we are (AMCI 402) law never liability accomplice toit cases where of the conduct apply proof showing complicity in a is conclusive. cases are not from conspiracy Conspiracy exempt from an be corrobo- requirement testimony accomplice rated nor are they non-accomplice, exempt accomplice status declared as a matter of law where being proof complicity therefore, would, I conclusive. follow our clear in Strick- holding land, and reverse and this case. dismiss supra, Stroud,
I am authorized state that Pittman and JJ., join this opinion. v.
Tommy STAFFORD ARKMO LUMBER COMPANY CA 94-1373
Court Arkansas Appeals
En Banc delivered Opinion July *2 Sherman, William F. for appellant. A.
Walter for Murray, appellee. Barber, FA., McCaskill, Amsler, Hale, & Robert L. by: Jones Gomlicker, III and for Henry, Diamond Constr. Christopher appellee Co. Mauzy Pittman, Stafford Judge. Tommy appeals John
an order of the Arkansas Workers’ Commission Compensation additional denying benefits medical benefits lack of arguing substantial evidence. sustained a
Appellant his left shoulder compensable injury on while for Arkmo August Lumber working Company. Crow, He was treated Dr. W. an who orthopedic surgeon, Joe an performed on left shoulder appellant’s a 20 assigned when he percent released impairment rating to return to work with September restrictions. lifting On December while for Diamond working Constructing sustained Company, his neck compensable injury back. stated that before the 1988 his shoulder was Appellant injury, However, after
“stiff” but he was able to work without problems. in his left shoulder. the 1988 he Appellant injury, began having pain treatment, who that the 1988 returned to Dr. Crow opined new rather than a recurrence. became was a injury Appellant The administrative law dissatisfiedwith Crow’s treatment. judge F. to be Dr. William treating appointed Blankenship treatment, conservative physician. Blankenship provided physi- cal and conducted numerous therapy injections, diagnostic tests, such as an EMG and nerve conduction studies. On January 1990, Dr. to return to work with Blankenship in excess of restrictions of no sweeping, mopping, lifting twenty or overhead thought pounds lifting.
could some limited work and that no further medical perform treatment was needed. to Dr.
Subsequent being by Blankenship, appellant continued to have and in treatment at complaints sought There, UAMS. was treated several by physicians. 4, Samuel a second on November Agnew performed acromioplasty 1992, which alleviated appellant’ssymptoms. Following surgery, additional benefits from appellant sought 1, 1990, 1993, to medical benefits for treatment from April UAMS, and a retroactive to Dr. Agnew.
The Commission found that
failed to
prove
that his treatment from UAMS was
related to either com
causally
or to the
the 1986
When
pensable injury
surgery following
injury.
evidence to
a decision of
reviewing
sufficiency
support
Commission,
the Workers’
we view the evidence
Compensation
and all reasonable inferences deducible therefrom in the
most
fight
favorable to the Commission’s
affirm if the
will
Com
findings
mission’s decision is
substantial evidence.
v.
supported
Wright
Inc.,
Air,
ABC
44 Ark.
Appellant argues be Agnew’s opinion to mean that both preted first compensable injuries a in his need for played part the second surgery although could not which one his condition. say He also precipitated contends that causation established because second surgery in November 1992 alleviated his problems. of medical was for the Com interpretation
mission, and we cannot that the a say causal connection between his medical treatment and the compen sable was not established is not substantial supported by Therefore, evidence. we decline to address appellant’s arguments a concerning Agnew. also that he entided to total
Appellant argues 1, benefits from 1990. The Commission found disability January failed to that he was unable to appellant prove perform employ- and that the medical lay ment subsequent had reached a recovery plateau indicated testimony appellant some gainful employment. and was performing the heal within is that period Temporary to earn suffers a total in which an incapacity employee ing period Etzkorn, 30 Ark. TractorCo. v. App. A. Riggs wages. J. return release to After Dr. William Blankenship’s 51 (1990). S.W.2d testified that with restrictions on January to work have work available to his who did not any he returned employer had there been a said that job the restrictions. within Appellant available, stated that he has he would have tried to do it. Appellant his second in since not sought employment anywhere However, the shows that from at least 1990 record December 1988. a care business. said that lawn Appellant operated week, each never worked more two or three he could do only yards did a dozen in 1991 and earned than four hours a yards day, only that the in the business. Our review indicates $600 less than a year total disabil and decision to Commission’sfindings deny temporary substantial evidence. benefits is ity supported Affirmed. Rogers, Griffen, Neal, C.J., JJ., agree.
Jennings, Mayfield, J., dissents. MAYFIELD, This case has been Judge, dissenting.
MELVIN court before. In an v. Diamond Construction opinion styled Stafford al., Co., et (Mayfield we motion to dismiss dissenting), granted appellees’ appeal on the that the order the was not basis attempted appeal final, of that case does not order. Although style appealable an name “Arkmo Lumber as specifically Company” appellee, was included in the “et al.” designation appellee Thus, in this case. This results from the there are two appellees fact, out, as the sustained majority opinion points for Arkmo while compensable injury August working *5 and sustained another in Lumber injury Company, compensable December while for Diamond Construction Com- working The notice of from the decision of the Commission in pany. appeal and both of them have this case names both as companies appellees, filed briefs.
In to focus on the involved in order are points appeal, all it is not to recite of the of the details necessary long complex case. A short from the taken “Intro- history summary, helpful duction” to the in the brief of Diamond “Argument” appellee Construction discloses that after Company, appellant’s compensable 1986, was in he treated and had on his left August Crow, Dr. shoulder was total for some benefits paid temporary and was for a of 20 period, paid permanent partial disability percent to the arm. And on December while for Dia- working mond Construction sustained a Company, compensa- ble of his left shoulder. As a result of this he aggravation disability, was benefits from December paid temporary until when he was released Dr. Blanken- January benefits, In addition to these the medical ship. associated expenses with the care of Dr. Crow have been Blankenship paid. however,
The appellant, contends in this that he appeal (1) should be total benefits for the paid period that the administrative law April (2) erred judge as selecting change one-time-only and the Commission physician, should have allowed a change UAMS, and the medical bills of UAMS and all the physi- cians who rendered medical services to the should be paid.
The issue Blanken- concerning change physician is the issue that ship v. appellant attempted appeal Stafford al., Diamond ConstructionCo. et The in that supra. majority opinion case stated:
The . . . the Workers’ petitioned Compensa- tion Commission for was physician. petition and a new granted was the adminis- physician appointed by trative law (ALJ). dissatisfied judge with Apparendy ALJ’s choice physician, to the full Com- appellant appealed mission that he never to contending agreed procedure by selected, which the new and the Commission affirmed the decision. . . . ALJ’s Here,
. . . obtained the relief he sought before the . . . Commission and we consider the dispute the method which new concerning selected to be and incidental in nature. With- interlocutory *6 of the or an on finality appealability
out expressing that, bn of we hold a an order change physician,. denying facts, is not a of these the order change physician granting at this time. petitioning party appealable 216, S.W.2d at 110. Ark. therefore, This in this is now before this Court appeal. point, dismissed, the full Commission first which we Prior to the appeal, the basis that it order was on had held that the appealable ALJ’s and the to a branch of litigation,” raised an issue “separable However, this court held that affirmed. after order was ALJ’s was not order decision appealable, affirming ALJ’s this court in the decision now before again passed the Commission affirmed the order issue and on the again change-of-physician ALJ’s the issue as a The Commission treated involving on point. and held that “retroactive of for a change physician,” request evi- a of the credible “claimant failed to prove by preponderance ...” that he is entided to another of dence change physician however, it This issue is not discussed by majority opinion; in the brief which out that on points April fully argued appellant’s 1989, 19, a from Dr. requested change physician Crow; 9, 1989, the that the that on necessity May suggested ALJ a could' be obviated him to select an hearing by allowing indepen- examiner; 12, 1989, dent that on Diamond Construc- appellee June tion, that he its wrote the through attorney, suggested ALJ enter an order a to a “doctor selected granting change that on wrote the by you”; attorney appellant’s June ALJ that he in the to ascertain the appellant’s process attempting but in a to the wishes regarding suggestion, postscript ALJ’s letter, stated, letter, I have now “Since this attorney dictating talked with client and I now have the my authority agree be the select the you may change physicians [the appellant].”
But the on to out that on the argument goes point after received the order filed day appellant’sattorney June ALJ’s and treated which said that the would be evaluated and that this would be the one-time-only under Ark. Code Ann. ll-9-514(a)(2) (1987), appel- that the lant’s hand delivered letter to stating attorney ALJ earlier letter of the mailed on should be attorney June it been letter.” because “has superseded by ignored Then was held on this issue on hearing June who held established July evidence ALJ *7 the to the which a agreed attorney by change appellant’s procedure was and when he out made objected found that only Dr. been selected the had that the Blankenship by Finding ALJ. law, had been in selection made accordance with the that and Dr. was a licensed and Blankenship qualified orthopedic surgeon, refused his to selection. change ALJ that there was no that Appellant argues agreement ALJ
could select a the full that one-time-only change physician; Commission should have allowed evidence on appellant present issue; this was a “conservative” physician; Blankenship Dr- was entitled to “reasonable medical care.”
Because above connected with point closely other two in this I want discuss the other points appeal, points come now then back to the change-of-physician point. — relies a Dr. majority a opinion upon report by Agnew doctor at the of Arkansas University For Medical Sciences (UAMS) — to whom went after he stopped seeing holding by majority in decision this case should be affirmed. The majority states that because the “Commission’s that a causal connection between medical treatment and the [Agnew’s] compensable injuries not evidence, was established” is substantial “we supported by decline to address a appellant’s arguments concerning to Dr. Agnew.” course,
Of brief, as the out in his it should points make no difference in of Dr. evaluating testimony whether or not his treatment was authorized SeeMark- ALJ. v. ham K-Mart 630 S.W.2d Corp., (1982), Larson, The Law Workmen’s citing 61.12 Compensation (j), 10-902 where it is said (1996), that “the of an unauthorized reports doctor must be considered in extent of determining disability.”
Therefore, this in matter have we a putting proper perspective, worker who has received two admittedly compensable his left shoulder and has been benefits for both paid compensation of them. After the last on December he received 8, 1990, when he was until total disability who then to see Dr. Agnew He goes Blankenship. 9, 1992, traces the medical of December appellants report left the fact that a performed history the care of Dr. Crow. Agnew’s was under report while appellant some relief for a out also procedure gave points he to UAMS in 1990 shoulder but that came complaining period started, continues, “on He pain. report parascapular exercises” and local modalities and shoulder strengthening girdle that, clinical evaluation was or about repeat May of his with of “recurrent impingement syndrome consistent findings AC arthritis.” left shoulder and possible joint of Dr. we out report Agnew, Without setting complete statements: quote following pertinent time, he was seen other members of the trauma
At *8 service, a distal clavicle resection and possible repeat whereby to aid was recommended. Mr. Staf- acromioplasty Attempts with were due to ford unsuccessful procedure surgical to obtain admission for Mr. Stafford the inability hospital of lack of beds. because available hospital On Mr. was seen back in Stafford September clinic after an orthopaedic having successfully completed It which revealed a rotator cuff tear. was based on arthrogram his clinical and the findings arthrogram report repeat recommended and scheduled. acromioplasty Mr. On November Stafford underwent a repeat or revision with of his muscular [debridement] cuff of rotator an erosive defect his rotator repair type exam the time no cuff. On clinical there was surgery overt evidence of and the acromi- significant pathology of this At the oclavicular was not addressed joints surgically. time, Mr. Stafford has been followed on consistent present basis both and the office as well as myself orthopaedic members of the rehabilitation service physical therapy [and] continues make in his increasing gains strength motion. in answers to attor-
And specific appellant’s questions had addressed to Dr. answers from his following ney Agnew, are report quoted: It be
Item 2: cannot determined with any degree reasonable as to what event caused the recurrent or certainty that Mr. Stafford our medical persistent symptoms sought one attention. cannot determine whether the Specifically, accident of or the December August of Dr. Crow is the event. can One state with specifically reasonable that all three in some to Mr. assurity play part overall Stafford’s complaints. Item Mr. is still Stafford healing, recuperative, 6: rehabilitative his
or of most recent It is antici- phase surgery. that with continued rehabilitation that Mr. Stafford pated should function in a 90% man- regain approximately painless ner to his . . entire arm. . Commission, the briefs of both opinion appellees,
and the all one majority rely upon statement made heavily in Dr. Agnew’s report Commission that the evidence does not show that the care and ren- treatment dered UAMS includes (which Agnew) con- causally nected work-related That one appellant’s statement is injury. believe, the answer above in “Item however, 2.” I do not quoted a common-sense that statement could reach reading conclusion that Dr. either said or believed that there nowas causal connection between the work-related the treatment Crow treatment and the surgical afforded procedure UAMS. appellant by *9 of Dr. report and the Agnew reasonably traces logically factual of the history and medical appellant’sinjuries treatment. The and explains how report why was repeat recom- acromioplasty mended and and the performed and 90 anticipated recovery percent “function in a manner” that will result the painless from likely treatment UAMS. This' provided by surgical procedure per- formed in November 1992. At the before the on hearing ALJ June 1, 1993, the testified that after this surgery stinging, he had in arm burning pain his and hand was that the gone; he had in his arm popping and shoulder was his that shoulder gone; fine; is now and he is able now to work and is to “draw trying me a business on and up” working yards landscaping.
296 who sustained inju-
So admittedly compensable appellant, 1988, in 1986 and had left to his left shoulder ries Crow; care was in the care of Dr. of Dr. in 1988 while under 1990; to return 1989 January Blankenship July restrictions; and was work with some lifting arm-raising no there was work available his because terminated employer by went to the At that with those restrictions. point, eventu- where he saw Dr. Grunwald. This University Hospital J.M. relief from resulted in the acromioplasty, previous symp- ally repeat toms, this now and a much outlook for brighter forty-three-year- old manual laborer. that the loses his
But holds the majority opinion because Dr. claim for disability payments 1990, his ended in and because January thought healing period 2” of his that he determine said in “Item could not report 1986, December or “whether the accident August “event” “caused the of Dr. Crow” Was specific or for which treat- recurrent symptoms” appellant sought persistent this court’s ment at UAMS. Overlooked the Commission and by — — over lightly by majority opinion skipped appellees 2,” sentence in “Item that “One can state Dr. Agnew’s concluding that all in some to Mr. Staf- with reasonable three part assurity play in “Item ford’soverall statements Agnew’s complaint.” Actually, 2” of his much more to a that the care lend finding report and treatment rendered to UAMS was con- appellant by casually nected to then do to the his work-related injuries they contrary it is obvious Dr. Blank- made the Commission. And who that he last saw the testified enship by deposition not could dispute findings surgical proce- dure of December described in Dr. Agnew’s report not could have dramatically deny appellant’s symptoms has been UAMS care and treatment. since he under improved not As a matter “it is essential that causal relationship legal between and the be medical the accident established be Crain evidence ... or that evidence certain.” medically 944, Button Ford Ark. 674 S.W.2d Co. v. Rogers, App. McDonald, GerberProductsv. (1984). See also noted that made S.W.2d should be (1985). (It Ark. 11-9-102 Act 796 of which modified Code Ann. with a medical be stated (16) (Repl. 1996) opinions require *10 reasonable of medical does not to the degree certainty, apply pres- Moreover, case occurred in 1988.) ent where the last we “if have also held that the is original injury compensable, every natural from it is also v. Best consequence compensable.” Hubley Inn, WesternGovernor’s Ark. 916 S.W.2d (1996). fact,
And in that the care simple treatment rendered UAMS was not to con appellant by causally nected to his work-related is not substantial supported by evidence because fair-minded with the same evidence persons before them could not have reached the same conclusion. In that it is our to situation reverse the Commission’s Kuhn v. duty finding. Hotel, 324 Ark. see Majestic (1996); alsoMorgan v. Desha Tax Assessor’s County S.W.2d 429 Office, (1994).
Therefore, I would reverse the Commission’s decision that not entitled to total benefits temporary during that followed the healing he received period procedure surgical UAMS in November 1992. The number of of days within that is not a matter period that we can healing determine from the record on and I would remand to appeal, Commission for a determination of that issue.
As the medical bills UAMS and payment the physi- cians who services for after he was performed that under Ark. Blankenship, appellees argue Code Ann. ll-9-514(a)(l) had 1996) a one-time- (Supp. only Dr. Crow to Dr. change physician Blankenship, of the UAMS require payment bills (including would constitute a physicians) retroactive con- to section I think trary 11-9-514. this under argument, view of my case, is not on Neither is the point. appellant’s argument erred in point contending selecting ALJ course, as Of Crow. replace are appellees not the medical obligated bills UAMS and Dr. pay unless those bills are for medical care and attention con- causally nected to But decided appellant’scompensable injuries. having exists, such connection then the left is whether question only bills are for medical care and attention that was reasonable treatment of the necessary compensable injuries.
298 view, released the after
In my the last for time on to work and saw appellant January return and (2) Ark. Ann. ll-9-514(a) Code provisions § that was Ark. At that the statute no point applied longer applied. which on date of Ann. 11-9-508(a) (b), Code as well as on January provided compensable injuries, for services are “reason- shall the medical the employer provide with the received in connection necessary ably within if the fails to such services employer provide employee,” such a reasonable time after Commission knowledge and that the direct be may they paid employer; employer liable treatment rendered an as is is also for emergency employee in connection with a reasonably compensable injury. necessary Ark. The case UnderwritersIns. Co. v. of Universal Bussey, deals with situation discussed (1986), S.W.2d and is in the preceding authority paragraph I take to what is referred to in this case as the with regard position course, bills. Of it would remand for the UAMS be necessary of the Commission to determine amount medical bills be for the care treatment of the after should paid 8, 1990. Therefore, I reverse remand for the indi- would purposes in this cated opinion. Lance
William McNEELY v. STATE Arkansas CA CR 95-602 of Arkansas
Court Appeals
En Banc delivered July Opinion