Leonard Reed v. M.A. Mortenson Companies and Arch Insurance company/gallagher Bassett Services, Inc.

Cite as 2024 Ark. App. 253
ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CV-22-817

Opinion Delivered April 17, 2024
LEONARD REED
APPELLANT APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
V.
[NO. G707727]

M.A. MORTENSON COMPANIES AND
ARCH INSURANCE
COMPANY/GALLAGHER BASSETT
SERVICES, INC.
APPELLEES
AFFIRMED

RITA W. GRUBER, Judge

The Arkansas Workers’ Compensation Commission unanimously found that

Leonard Reed did not prove entitlement to additional temporary total-disability (TTD)

benefits for his compensable injury beyond April 5, 2018, the date on which Dr. David

Wassell first assessed maximum medical improvement (MMI). The injury occurred on

October 20, 2017, when Mr. Reed was working as a truck driver, and a four-pound piece of

metal struck his right leg. Dr. Wassell, an orthopedic surgeon, performed an open reduction

and internal fixation of the right-tibial-plateau fracture on November 1, 2017. Mr. Reed

subsequently received TTD benefits and additional medical care that included physical

therapy.
The Commission entered its decision in this case on October 13, 2022. On appeal,

Mr. Reed contends that the Commission erred in finding that his healing period ended on

April 5, 2018, and he therefore was not entitled to additional TTD benefits beyond that

date. We affirm.

In an office visit on March 7, 2018, Dr. Wassell viewed an x-ray of Mr. Reed’s right

knee and performed a battery of tests designed to evaluate his postop recovery. The medical

record includes Dr. Wassell’s office notes of the x-ray images:

Findings: No significant soft tissue swelling or radiopaque foreign body is
demonstrated. No joint effusion is evident. No acute fracture is identified. There are
redemonstrated findings of lateral tibial plateau compression plate and screw internal
fixation. Radiographic union is complete. There is no evidence of hardware loosening
or screw fracture.
Impression
No evidence of hardware loosening.

Dr. Wassell felt that Mr. Reed had reached MMI on March 7 and could return to light-duty

work. But because Mr. Reed did not feel capable of returning to his previous work, Dr.

Wassell ordered a functional capacity evaluation (FCE) to determine the level of work Mr.

Reed could perform.

The FCE was performed on March 26, 2018. On April 5, after receiving the FCE

report, Dr. Wassell assessed a 0 percent impairment rating and reiterated his opinion from

the March 7 office visit that Mr. Reed was capable of returning to light-duty work. Dr.

Wassell opined that Mr. Reed demonstrated the ability to perform light-duty work, noting,

in part, that the FCE report reflected a lack of reliable effort by Mr. Reed. Dr. Wassell then

2
released Mr. Reed from his care. Mr. Reed later testified that he had been in pain both

during and after the FCE and that he had grown tired during the hours of testing.

After Dr. Wassell released him, Mr. Reed returned to Dr. Christopher Morgan, the

company doctor who had seen him after the accident and referred him to Dr. Wassell. Dr.

Morgan then referred Mr. Reed to Dr. Dennis Yelvington, who saw him for leg pain on May

1, 2018, and diagnosed chronic pain associated with significant psychosocial dysfunction.

On July 23, 2018, Dr. Morgan wrote that Mr. Reed’s injury was work related and that he

could not return to work due to restrictions. Dr. Morgan referred Mr. Reed to orthopedic

surgeon Dr. James Tucker, who administered injections to Mr. Reed’s right knee and

referred him to a pain-treatment facility. On February 25, 2019, Dr. Morgan noted that Mr.

Reed had ongoing pain-related issues with his right knee, had been seen multiple times in

orthopedics for ongoing issues with this knee, and was already in pain management for

chronic back pain.1 Dr. Morgan wrote that Mr. Reed needed chronic pain management for

his right knee. Dr. Wassell subsequently agreed in his deposition that it would be reasonable

and necessary to at least evaluate Mr. Reed for chronic pain management of his knee.

At a December 13, 2021 hearing before an administrative law judge, Mr. Reed

contended that Dr. Wassell incorrectly assessed a rating of 0 percent and instead should have

assessed a minimum rating of 2 percent to the whole body and 5 percent to the lower

extremity. He claimed that he was entitled to additional medical treatment and TTD

1
The chronic back pain was from a previous injury.

3
benefits, to ratings of permanent partial disability, and to travel expenses for medical

appointments. Mr. Reed testified that he had been told his employer did not have light-duty

work for him, that he had traveled from Stuttgart to Little Rock for appointments with Dr.

Tucker and for pain management, and that respondents would not cover additional

treatments.

The ALJ found that Mr. Reed had proved he was entitled to additional medical

treatment. She found that he had credibly testified he was unable to return to work. She

attached minimal weight to Dr. Wassell’s determination of a zero impairment rating and

great weight to Dr. Morgan’s opinion that Reed was unable to return to work. She found

that Reed remained in his healing period and was unable to work and that it would be

premature to assess an impairment rating. Therefore, she held the issue of permanent partial

disability in abeyance.

Respondents appealed the ALJ’s decision to the Commission. The Commission

reversed the ALJ’s finding that Mr. Reed proved he was entitled to additional TTD

compensation “from July 23, 2018, until [he] is released at maximum medical improvement

by Dr. Tucker.” The Commission instead found that Mr. Reed did not prove entitlement to

additional TTD benefits beyond April 5, 2018, the date that Dr. Wassell assessed MMI in a

letter to respondents. The Commission, finding that Dr. Wassell’s opinion was corroborated

by the record, gave his opinion significant weight; found that Mr. Reed reached the end of

his healing period no later than April 5, 2018; and therefore found that Mr. Reed was not

entitled to additional TTD benefits beyond that date. It further found that Mr. Reed proved

4
he was entitled to additional medical treatment and a permanent anatomical impairment in

the amount of 12 percent to his right lower extremity.2

Mr. Reed contends on appeal that the ALJ’s opinion appropriately analyzed the

shortcomings of Dr. Wassell’s opinions, gave them minimal weight, and gave greater weight

to both Dr. Morgan’s opinion and Mr. Reed’s testimony that he was in pain during and after

the FCE. However, we do not review the decision of the ALJ; rather, we review the decision

of the Commission, which performs a de novo review of the evidence. Pharmerica v. Seratt,

103 Ark. App. 9, 11, 285 S.W.3d 699, 701 (2008).

The law requires the Commission to render findings adequate for appellate review

but does not require the Commission to render findings on every conceivable point of

contention and dispute between the parties. See Williams v. Prostaff Temps., 64 Ark. App. 128,

979 S.W.2d 911 (1999). The substantial-evidence standard of review requires us to affirm if

the Commission’s decision displays a substantial basis for the denial of relief. Sanchez v. Pork

Grp., Inc., 2012 Ark. App. 570, at 1–2. We view the evidence and all reasonable inferences

deducible from the Commission’s decision in the light most favorable to the Commission’s

findings. Id. at 9.

2
The Commission has adopted the American Medical Association Guides to the
Evaluation of Permanent Impairment to be used in assessing anatomical impairment. Little Rock
Ambulance Auth. v. Binkley, 2022 Ark. App. 229, at 11, 646 S.W.3d 193, 202. It is the
Commission’s duty, using the AMA Guides, to determine whether the claimant has proved
that he is entitled to a permanent-impairment rating. Id. The Commission did so in this case.

5
The Commission may accept and translate into findings of fact only those portions

of testimony it deems worthy of belief; the appellate court is foreclosed from determining

the credibility and weight to be accorded testimony. Barber v. Pork Grp., Inc., 2012 Ark. App.

138, at 5. The Commission has authority to accept or reject medical opinions, and its

resolution of the medical evidence has the force and effect of a jury verdict. Watson v.

Highland Pellets, 2022 Ark. App. 132, at 6, 643 S.W.3d 267, 270; Stafford v. Arkmo Lumber

Co., 54 Ark. App. 286, 288, 925 S.W.2d 170, 172 (1996). In deciding the weight and

credibility of a doctor’s opinion, the Commission is entitled to review the basis for it.

Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).

“The Commission is authorized to decide which portions of the medical evidence to

credit and to translate this evidence into a finding of permanent impairment using the

AMA Guides; thus, the Commission may assess its own impairment rating rather than rely

solely on its determination of the validity of ratings assigned by physicians.” Ark. Dep’t of

Corr. v. Washington, 2024 Ark. App. 181, at 6, ___ S.W.3d ___, ___. In doing so, “the

Commission examines the entire record.” Id. at 7, ___ S.W.3d at ___. We will reverse the

Commission’s decision only when we are convinced that fair-minded persons with the same

facts before them could not have reached the findings arrived at by the Commission. Maupin

v. Pulaski Cnty. Sheriff’s Office, 90 Ark. App. 1, 5, 203 S.W.3d 668, 670 (2005).

Here, it is true that the Commission’s opinion did not specifically address Dr.

Wassell’s testimony that he did not read the entire FCE report. The Commission instead

relied on Dr. Wassell’s testimony that he stood by his prior conclusion that Mr. Reed reached

6
MMI on or about March 7, 2018, and that he sustained 0 percent permanent impairment

under the AMA Guides. The Commission noted that Dr. Wassell testified in his deposition,

“Based on my documentation and everything that I documented, . . . based on what I

examined and what I compared it to and looked at,” he stood by his prior opinion that no

impairment rating was warranted. Additionally, the Commission summarized the extensive

medical record in this case.

The Commission recited sufficient findings of fact in its written decision to constitute

substantial evidence supporting the denial of benefits. It was within the Commission’s

purview to weigh the evidence, interpret medical opinions, and translate into findings of fact

only those portions of testimony it deemed worthy of belief. Because the Commission’s

decision displays a substantial basis for the denial of relief, we affirm.

HARRISON, C.J., and GLADWIN, WOOD, and MURPHY, JJ., agree.

BARRETT, J., dissents.

STEPHANIE POTTER BARRETT, Judge, dissenting. The only doctor who opined that

the claimant had reached the end of his healing period stated that he based his opinion on

a functional capacity report that he later admitted he did not read fully nor understand. The

majority affirms the Arkansas Workers’ Compensation Commission determination that the

appellant, Leonard Reed (“Reed”), reached the end of his healing period on April 5, 2018,

and was not entitled to additional temporary total-disability (TTD) benefits beyond that date.

Because I do not believe the Commission’s findings are supported by substantial evidence, I

respectfully dissent.

7
On October 20, 2017, Reed was an employee of Mortenson. While working, Reed

was struck in his leg, just below his right knee, by a four-pound piece of scrap metal. He was

able to see the company doctor, Dr. Christopher Morgan, four days later. Dr. Morgan

ordered an x-ray of Reed’s leg, took him off work, gave him pain medication, and referred

him to Dr. David Wassell, an orthopedist. Dr. Wassell discovered a fracture in Reed’s right

shin and additional breaks in his knee and then performed surgery to install a plate and

some screws in his shin. Reed attended all physical-therapy sessions that Dr. Wassell

recommended and was compliant with all instructions. Dr. Wassell also prescribed

additional physical therapy, but that was denied by the respondents. Reed also attended a

functional capacity evaluation (FCE), after which Dr. Wassell wrote that Reed had reached

maximum medical improvement, had a 0 percent impairment rating, and could return to

light-duty work. Mortenson had no light-duty work available.

After Dr. Wassell released him, Reed continued to see Dr. Morgan as well as Dr.

Dennis Yelvington, a doctor in the same clinic as Dr. Morgan. Dr. Morgan wrote a letter in

July 2018 stating that Reed could not return to work and sent Reed for pain treatment at

Pain Centers of America, but Reed was discharged because his treatment was not covered by

Mortenson’s workers’-compensation insurance carrier. Reed was referred to and saw several

other medical professionals, but the treatment he received from them was also not paid for

by the insurance carrier.

The administrative law judge (“ALJ”) found that Reed had proved by a preponderance

of the evidence that the medical treatment he had received as well as future medical

8
treatment was reasonably necessary and that he was entitled to TTD compensation from July

23, 2018, until he was released at maximum medical improvement (MMI). Because Reed

had not yet reached MMI, the issue of permanent partial-disability benefits was held in

abeyance, but the ALJ determined that Reed was entitled to related travel expenses for the

medical treatment of record, and an attorney’s fee on all indemnity benefits was awarded.

Mortenson then appealed to the Commission. In an opinion filed on October 13, 2022,

the Commission affirmed in part and reversed in part.

The Commission found that Reed had proved he was entitled to additional medical

treatment and that he was entitled to permanent anatomical impairment in the amount of

12 percent to the right lower extremity based on the American Medical Association Guides

to the Evaluation of Permanent Impairment. Reed then appealed the decision on the ground

that the Commission erred in its determination that he had reached the end of his healing

period and was not entitled to additional TTD benefits beyond April 5, 2018.

The standard of review in workers’-compensation cases is “whether there is substantial

evidence to support the Commission’s decision.” Schall v. Univ. of Ark. for Med. Scis., 2017

Ark. App. 50, at 2, 510 S.W.3d 302, 303. While “we view the evidence in the light most

favorable to the decision of the Commission, that standard neither insulates the

Commission from judicial review nor renders our function in these cases meaningless, and

we will reverse the Commission when we are convinced that fair-minded persons with the

same facts before them could not have reached the same conclusion.” Second Inj. Fund v.

James River Corp., 53 Ark. App. 204, 211, 920 S.W.2d 869, 873 (1996).

9
The Commission determined that Reed had reached the end of his healing period

largely because of Dr. Wassell’s medical opinion that Reed had reached MMI on April 5,

2018. Even viewing the evidence in a light most favorable to the Commission’s decision, the

decision must be supported by substantial evidence. I do not find that the Commission’s

findings are supported by substantial evidence because of the Commission’s heavy reliance

on Dr. Wassell’s opinion. Dr. Wassell admitted in his deposition that his opinion was based

on commentary in the FCE report that Reed did not put forth a reliable effort. He admitted

that he did not read the full report or understand that the unreliable effort was only in regard

to the upper-body testing and that the only issue was the functional capacity of his lower

body, which the report concluded that Reed did give a reliable effort.

The “finding of fact must contain all of the specific facts relevant to the contested

issue . . . so that the reviewing court may determine whether the Commission has resolved

these issues in conformity with the law.” Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 256, 57

S.W.3d 735, 740 (2001). In Lunsford v. Rich Mountain Electric Co-op, 33 Ark. App. 66, 70, 800

S.W.2d 732, 734 (1990), this court found that the denial of workers’-compensation benefits

for continuation and reoccurrence of an earlier compensable back injury on the ground that

claimant’s election to engage in horseback riding was unreasonable and thus not

compensable required remand given the Commission’s failure to make any finding on the

reasonableness of the claimant’s horseback riding under those circumstances; after finding

that the claimant “believed he had cleared” horseback riding with his physician, the

Commission did not find whether horseback riding was unreasonable. Here, the

10
Commission found that Dr. Wassell’s opinion that Reed could return to work was based on

Reed’s unreliable effort. However, as in Lunsford, the Commission’s finding of fact did not

contain all the specific facts. Here, it did not consider that Dr. Wassell had not read the

entire FCE report. It also did not consider that Reed’s unreliable effort was only put forth

on the upper-body part of the test and not the part of the test on his right leg, which was the

location of the compensable injury. As a result, Dr. Wassell’s opinion could not reasonably

be corroborated by the record. Therefore, the conclusion that Reed had reached MMI and

was not entitled to TTD benefits after April 5 does not appear reasonable even when

examining the evidence in the light most favorable to the Commission.

There are also several instances where Dr. Wassell’s testimony appears inconsistent

and therefore lacking in substantial evidence to support the Commission’s findings. At a

follow-up visit with Dr. Wassell on December 14, 2017, Dr. Wassell wrote that Reed had

significant quadricep muscle weakness resulting in an antalgic gait and that Reed had not

progressed as much as he should have in weaning off the use of his crutches. As a result, Dr.

Wassell recommended another month of aggressive physical therapy with an emphasis on

regaining his normal gait and strength. Dr. Wassell noted that from a work standpoint, Reed

could work any type of sedentary job, if available. However, additional physical therapy was

denied by Mortenson’s workers’-compensation insurance carrier, and no sedentary work was

available. Six weeks after that recommendation, without additional physical therapy to

address muscle weakness, antalgic gait, or persistent swelling, Dr. Wassell declared Reed had

reached MMI and had an impairment rating of 0 percent. The commission disagreed with

11
his findings to the extent that it assigned an impairment rating of 12 percent. These findings

are inherently inconsistent.

The majority has also correctly pointed out that it is the Commission’s right, and not

the appellate court’s, to determine the weight given to testimony. However, in Morgan v.

Desha County Tax Assessor’s Office, 45 Ark. App. 95, 98, 871 S.W.2d 429, 430 (1994), the

Commission found that the appellant failed to prove that treatment provided to her was

reasonably necessary. In that case, the appellant had seen four doctors. Two of them

concluded that additional surgery was needed, and two of them recommended a more

conservative treatment. The recommendations of both groups of doctors were based on the

same findings. The Commission placed greater weight on the opinions of the second group

of doctors and the more conservative treatment. Morgan was reversed because, although the

second group of doctors recommended conservative treatment, they did not suggest that

further treatment was unnecessary. This, combined with the fact that the conservative

treatments were not improving the appellant’s condition, caused the court of appeals to find

that fair-minded persons with the same facts before them could not have concluded that the

appellant failed to prove by a preponderance of the evidence that further medical treatment

was reasonable and necessary.

Here, the Commission placed greater weight on Dr. Wassell’s opinion than that of

any of the other medical professionals who testified. This testimony was given weight in spite

of the fact that Dr. Wassell contradicted himself several times. He testified that Reed had

not progressed as much as he should have in weaning off the use of his crutches and needed

12
at least another month of aggressive physical therapy with an emphasis on regaining his

normal gait and strength. However, that physical therapy was denied by the workers’-

compensation insurance carrier. Nevertheless, six weeks later, Dr. Wassell assigned Reed an

impairment rating of 0 percent and declared he had reached MMI. In Morgan, the

Commission chose to give more weight to the findings of one group of doctors over another.

Here, however, the Commission chose to give weight to Dr. Wassell’s second opinion and

completely ignored his first, even though the two are diametrically opposed. Further, despite

the weight they lent his second opinion, the Commission deviated from Dr. Wassell’s

impairment rating, finding instead that Reed had an impairment rating of 12 percent. An

impairment rating of 12 percent was not recommended by any medical professional in the

record.

For the reasons set forth above, I would reverse and remand.

Bell & Boyd, PLLC, by: Michael W. Boyd, for appellant.

Wright, Lindsey & Jennings, LLP, by: Joseph H. Purvis, for appellees.

13