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BILLY CORLEY v. ACME BRICK
Date: 02-12-2022
Case Number: 2022 Ark. App. 60
Judge: ROBERT J. GLADWIN
Court:
ARKANSAS COURT OF APPEALS
On appeal from The APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
Plaintiff's Attorney: Eddie H. Walker, Jr.
Defendant's Attorney:
Little Rock, AR - Best Workers Compensation Lawyer Directory
Little Rock, AR - Best Workers Compensation Lawyer Directory
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Description:
Little Rock, AR - Workers' Compensation lawyer represented defendant with appealing the decision of the Arkansas Workers' Compensation Commission.
On November 21, 2018, Corley suffered a compensable injury while working for
appellee Acme Brick (Acme) when he fell through a catwalk and injured his hip, leg, arm,
2
and shoulder. He reached maximum medical improvement on October 15, 2019, and he
was assessed a fifty-percent rating to his right lower extremity. When Corley sought a wholebody impairment rating, Acme objected, and the issue was presented to the Commission.
Corley's medical records reflect that on November 22, 2018, he went to the
emergency room as a result of the injury he had sustained the day before from falling through
the broken catwalk. The physician's assistant (PA) noted, "He states that he had a large
amount of swelling around the right lower leg afterwards with some redness and bruising.
Pain is from the right knee and radiates down into the lower leg and into the ankle.†The
PA noted that the physical examination showed swelling in the right knee and ankle and
that Corley had "diffuse tenderness to palpation of right lower leg from knee to ankle.â€
On February 15, 2019, Corley was examined by Dr. Justin Clayton, who noted that
Corley's MRI revealed some significant edema, "either fat necrosis or hemorrhage laterally
at the fibula.†He referred Corley to the lymphedema clinic, and on February 26, the
occupational therapist's primary diagnosis was "lymphedema of right lower extremity.†The
therapist observed that Corley's "knee and thigh are 19.6 cm larger on the right than on the
left†and that his "lower leg and foot/ankle are 32.4 cm larger on the right than on the left.â€
On March 11, the therapist noted that Corley's right thigh had a marked decrease in edema
but showed an increase in swelling below the knee. After several months of therapy, the
swelling in Corley's ankle and lower leg also began to decrease. However, on June 25, the
therapist observed an increase in edema "throughout whole right lower extremity including
his knee and hip.â€
3
According to the therapist's notes dated August 26, Corley saw Dr. Trent Johnson on
July 11, a cast was placed below Corley's knee, and it remained for three weeks until August
7. On August 20, Corley was examined by Dr. Clayton, and his chief complaint was right
leg pain. The doctor noted that Corley had edema in his right lower extremity "up to about
his knee.†The doctor's assessment was that Corley had
lymphedema after a significant injury. I was not able to palpate any obvious fluid
collections. I am not sure that any sort of surgical intervention at this point is going
to be especially helpful. I think revisiting the lymphedema clinic is probably the best
option with wound care as needed. Once he has gotten back into the lymphedema
clinic, it might not be unreasonable to re-image his leg, but this is likely going to result
in some sort of long-term disability.
On September 18, Dr. Clayton noted, "I think at this point he has gotten as much
improvement from my services as he can get. I anticipate that he will need lymphedema
treatments indefinitely.â€
A functional capacity evaluation (FCE) was done on September 26, and it was found
that Corley gave a consistent effort. He demonstrated an occasional lift/carry of up to twenty
pounds but did not demonstrate the ability to do so on a frequent basis due to his low
tolerance to standing and walking. The results of the FCE indicated that Corley is able to
perform in the sedentary classification. The evaluator noted that Corley had edema present
throughout his right lower extremity "from just above the knee to his toes.†Finally, Dr.
Clayton agreed, "The guides recommend using the section that provides the greater
impairment. In Mr. Corley's case, the impairment for his peripheral vascular disorder is the
4
greatest and results in an 20% Whole Person, 50% Lower Extremity impairment for his
work-related right injury.â€
Dr. Clayton wrote on October 16 that Corley had reached maximum medical
improvement on October 15, 2019, with an impairment of 50 percent of the lower extremity
and 20 percent of the whole person based on the AMA Guides to the Evaluation of Permanent
Impairment (AMA Guides). He recommended that Corley continue lymphedema treatments
indefinitely and referred him back to Dr. Holder for monitoring of the lymphedema as
needed.
At the July 28, 2020 hearing before the administrative law judge (ALJ), Bonnie Corley
testified that she is Corley's wife of forty years and had been an LPN for sixteen years. She
said that before his compensable injury in November 2018, Corley suffered from diabetes
and neuropathy, but those conditions did not limit his activities. She described having
witnessed Corley's lymphedema therapy sessions following his injury and said that the
therapist made a circular pushing motion beginning at his neck and working down through
his shoulders and sides then continued from his back into his groin area. She said that after
a cast was put on his right leg, she observed swelling in Corley's right leg, hip, groin area,
and left leg. She said that he has had several falls since the accident and that he is no longer
able to play ball with their grandchildren. He is too tired to do much of anything, and the
therapy wears him out. He wears compression hose, but nothing is able to control his
swelling. She said that before his accident, Corley did not complain of swelling and that she
never saw his feet swell. She said that he had taken pain medication for his arthritis and that
5
his job had included heavy labor and walking up and down sixteen flights of steps several
times a day. She said that before the accident, he would be tired but not worn out.
Corley testified that he was injured on November 21, 2018, and he said,
Early in the morning, I walk the catwalk to turn on the conveyor belt to run
the material. What I walk on is like galvanized steel. It gave way and I went down in
it. I fell all the way, the ankle and knee down in there and my leg, hip, arm and
shoulder hit up against the frame. . . . The injury was described as a degloving.
Corley described the extent of the physical labor he had performed in his job for Acme. He
said that it was normal for him to take pain medication because of the physical work, that
he began having arthritis pain in his arms and shoulders, and that it was just part of the job
that he dealt with. He said,
I worked for thirty-five years. I had very few missed days. I wanted to get back
to work. I think it was December 17 of 2018; I couldn't work no more so they laid
me off. Dr. Holder did. I did everything the doctor, the physical therapist and the
lymphotherapist asked me to do to try and get back to work.
After my injury, I can hardly do anything because I'm tired all the time. I hurt
constantly. I hurt constantly back then when I worked, but this is a different kind of
hurt. I've heard the lymphedema is poisoning my system and my leg and everything
else. I done a lot of hard work; but, where I worked at, you have to overcome the pain
as much as possible. The difference now is that I can't hardly move around or walk
anymore.
I am sixty-two years old, and I went to the ninth grade in school. My condition
is that I can't walk right. I have no balance. I don't think I'll be able to return to work.
On cross-examination, Corley said that he had a little swelling in his leg prior to his
accident and that it was normal "when you're on your feet ten to twelve hours a day.†On
May 4, 2018, he was diagnosed with chronic gout in his right knee, but he said that it did
not affect his job. He guessed he was diagnosed with diabetes around 2005 and said that he
6
takes insulin. He said that his diabetes is under control and that it had caused some
neuropathy in his left leg. He said that the accident caused a little neuropathy in his right
leg and that he had peripheral diabetic neuropathy before the accident, but "it was in my left
and that is why I was taking Lyrica.†He said that he had pain before his accident because
of his work, "but nothing like this.â€
The ALJ issued an opinion on October 5, 2020, finding that Corley had proved by a
preponderance of the evidence that he is entitled to a twenty-percent anatomical impairment
rating to the body as a whole and that he is entitled to wage loss in the amount of forty-five
percent. The ALJ found that Corley's main injury was to his right leg and that he developed
lymphedema, which is a compensable consequence of his injury. The ALJ's opinion states:
Certainly, the claimant's authorized treating surgeon made a referral for
lymphotherapy. Dr. Clayton in February 2019 noted that the claimant did not have
an orthopedic issue but needed treatment in a lymphedema clinic. Based on a review
of the evidence, it appears Dr. Clayton felt that the lasting effect of the claimant's
right knee injury was not orthopedic, but a systematic lymphedema. Dr. Clayton
assessed a 20% impairment rating to the claimant's body as a whole. Such an
impairment rating refers to the anatomical loss to injury. The claimant's impairment
is expressed in a numerical percentage of loss of the body based on the opinion of a
physician, Arkansas Code Annotated § 11-9-519, et al. The assessment of anatomical
impairment must also be based on the AMA Guides to Evaluation of Permanent
Impairment, 4th Edition (hereinafter AMA Guides). Based on a review of the AMA
Guides, lymphedema is discussed under the section referring to vascular diseases
affecting the extremities. The proper table to use in this assessment is Table 14. That
table sets impairment ratings to the body as a whole, not to the extremity. Since the
claimant developed lymphedema as a consequence of his injury, a rating to the body
as a whole is appropriate, not simply a rating to the lower extremity alone. The AMA
Guides' assessment using Table 14 is consistent with the assessment of Dr. Clayton
in assigning the claimant a 20% impairment rating to the body as whole. It should be
noted that Dr. Clayton also assigned the claimant a 50% rating to the lower extremity
in that same November 20, 2019 report. The respondents contend that the claimant
is entitled to the 50% rating to the lower extremity and therefore also not entitled to
7
any wage loss disability. It would be unreasonable based on a review of the medical
records and the claimant's treatment to think that the claimant was being treated
solely for a lower extremity injury when there is no question that the claimant suffered
issues with other areas of his body due to the consequence of the lymphedema. The
claimant also noted that he feels tired all the time and thinks the lymphedema may
be poisoning his system. However, I find an assessment based on the AMA Guides,
Table 14 and Dr. Clayton's whole-body assessment is correct. The claimant has
proven that he is entitled to the 20% impairment to the body as a whole assessed by
Dr. Clayton.
The ALJ also found that Corley was entitled to wage-loss benefits in the amount of 45 percent
in addition to the 20 percent anatomical-impairment rating.
Acme appealed, and the Commission issued its opinion on February 10, 2021,
reversing the ALJ's decision. The Commission wrote,
The parties stipulated in the present matter that the claimant sustained a
compensable injury on November 21, 2018. The probative evidence demonstrates
that the claimant sustained a compensable scheduled injury to his right lower
extremity. It was reported at Mercy Clinic on November 22, 2018 that the claimant
injured his right leg when he fell through the catwalk. It was noted, "Pain is from
right knee and radiates down into the lower leg and into the ankle.†A physician's
assistant reported swelling in the claimant's right knee, right ankle, and right lower
leg. Dr. Clayton reported on February 15, 2019 that the compensable injury caused
"swelling over the lateral aspect of his ankle. . . . He has significant edema, especially
laterally along the distal third of his fibula.†The record does not show that the
claimant sustained a compensable injury above his right knee; nor does the record
show that the claimant sustained a compensable injury to any unscheduled anatomic
region.
Dr. Clayton referred the claimant to an occupational therapist, Christine A.
Capeheart. Ms. Capehart's Primary Diagnosis on February 26, 2019, was
"Lymphedema of right lower extremity.†Stedman's Medical Dictionary, 26th
Edition, defines "Lymphedema†as "Swelling (especially in subcutaneous tissues) as a
result of obstruction of lymphatic vessels or lymph nodes and the accumulation of
large amounts of lymph in the affected region.†The preponderance of evidence
supports the administrative law judge's determination that the claimant sustained
lymphedema as a natural consequence of his compensable scheduled injury. See
Hubley v. Best Western Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996).
8
Nevertheless, the claimant's treatment for lymphedema does not convert his
compensable scheduled injury to an unscheduled injury.
. . . .
The evidence does not demonstrate that massage of the claimant's neck,
shoulders, feet, or other areas indicates that the claimant sustained a compensable
unscheduled, whole-body injury. The probative evidence of record demonstrates that
the claimant sustained a compensable scheduled injury to his right lower extremity.
A claimant who sustains a scheduled injury is limited to the applicable allowances set
forth in Ark. Code Ann. § 11-9-521 (Repl. 2012), and such benefits cannot be
increased by considering wage-loss factors absent a finding of permanent total
disability.
After reviewing the entire record de novo, the Full Commission reverses the
administrative law judge's finding that the claimant proved he sustained wage-loss
disability in the amount of 45%. The Full Commission finds that the claimant
sustained a compensable scheduled injury to his right lower extremity. The Full
Commission finds that the claimant did not sustain an unscheduled injury, and we
find that the diagnosis and treatment of lymphedema did not convert the claimant's
compensable scheduled injury to an unscheduled injury. The claimant is limited to
the applicable allowances set forth in Ark. Code Ann. § 11-9-521 (Repl. 2012). The
claimant to date does not claim that he is permanently totally disabled. The claim for
wage-loss disability is respectfully denied and dismissed.
From this decision, Corley filed a timely notice of appeal, and this appeal followed.
II. Applicable Law and Standard of Review
Arkansas Code Annotated section 11-9-521(a) (Repl. 2012) provides that an injured
employee shall receive weekly benefits for scheduled permanent compensable injuries
sustained by the employee 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. For example, the scheduled list includes 184 weeks of benefits for "[l]eg
amputated at the knee, or between the knee and the hip†and 131 weeks of benefits for "[l]eg
9
amputated between the knee and the ankle.†Ark. Code Ann. § 11-9-521(a)(3) & (4).
Arkansas Code Annotated section 11-9-522(a) (Repl. 2012) provides that an unscheduled
injury shall be apportioned to the body as a whole and shall have a value of 450 weeks.
When reviewing a decision of the Commission, we view the evidence and all
reasonable inferences deducible therefrom in the light most favorable to the findings of the
Commission. Ark. Dep't of Parks & Tourism v. Price, 2016 Ark. App. 109, 483 S.W.3d 320.
This court must affirm the decision of the Commission if it is supported by substantial
evidence. Id. Substantial evidence is evidence that a reasonable mind might accept as
adequate to support a conclusion of the Commission. Id. We reverse the Commission's
decision only if we are convinced that fair-minded persons could not have reached the same
conclusion with the same facts before them. Id. Questions regarding the credibility of
witnesses and the weight to be given to their testimony are within the exclusive province of
the Commission. Id.
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.
Coleman v. Pro Transp., Inc., 97 Ark. App. 338, 249 S.W.3d 149 (2007). The
Commission, however, may not arbitrarily disregard medical evidence. Pyle v.
Woodfield, Inc., 2009 Ark. App. 251, 306 S.W.3d 455. In order for an administrative
action to be invalid as arbitrary, the action must either lack any rational basis or hinge
on a finding of fact based on an erroneous view of the law. Pine Bluff for Safe Disposal
v. Ark. Pollution Control & Ecology Comm'n, 354 Ark. 563, 127 S.W.3d 509 (2003); Ark.
Prof'l Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). An
arbitrary act is thus an illegal or unreasoned act; an act is not arbitrary simply because
the reviewing court would have acted differently. Woodyard v. Ark. Diversified Ins. Co.,
268 Ark. 94, 594 S.W.2d 13 (1980). In workers'-compensation cases, arbitrary
disregard of evidence is demonstrated when the Commission affirmatively states that
there is "no evidence†for a proposition when such evidence has, in fact, been
10
presented in the proceeding. See Edens v. Superior Marble & Glass, 346 Ark. 487, 58
S.W.3d 369 (2001).
Lonoke Exceptional School, Inc. v. Coffman, 2019 Ark. App. 80, at 3–4, 569 S.W.3d 378, 381.
In Milburn v. Concrete Fabricators, Inc., 18 Ark. App. 23, 25–26, 709 S.W.2d 822, 823
(1986), we reversed the Commission's finding of a scheduled injury and stated,
We believe the evidence is conclusive that appellant sustained a hip injury
attributable to his broken leg. Although a scheduled injury cannot be apportioned to
the body as a whole absent total disability, Anchor Construction Co. v. Rice, 252 Ark.
460, 479 S.W.2d 573 (1972), the Arkansas Supreme Court held in Clark v. Shiloh
Tank & Erection Co., 259 Ark. 521, 534 S.W.2d 240 (1976), that a claimant who had
received a scheduled injury could receive additional compensation for an injury
which was found to be attributable to the scheduled injury.
In Taylor v. Pfeiffer Plumbing & Heating Co., 8 Ark. App. 144, 648 S.W.2d 526
(1983), we reversed a finding that a claimant's shoulder injury was a scheduled injury
and held that it was an unscheduled injury which should have been apportioned to
the body as a whole. We also said this was primarily a question of law and even if the
effects of the shoulder injury extended into the claimant's arm, this would not make
the injury a scheduled one.
Arkansas Statutes Annotated Section 81–1313(c)(3) (Repl.1976) [replaced by
section 11-9-521], provides scheduled injury payments for a "leg amputated at the
knee, or between the knee and the hip.†It is clear that the appellant's problem is not
between the hip and the knee. While medically speaking, a hip may be considered a
part of the leg, from a legal point of view, a hip injury is an injury to the body as a
whole under the Workers' Compensation Law.
Both parties agree that the question of whether an impairment rating should be assessed to
the body as a whole is one of law. Taylor, supra.
III. Scheduled Injury vs. Unscheduled Injury
Corley argues that the Commission erred as a matter of law in holding that his injury
was scheduled. He contends that there is no dispute that he developed lymphedema as a
11
result of his compensable accident; rather, the dispute is whether lymphedema is a scheduled
injury under the statute. Ark. Code Ann. § 11-9-521. He argues that his medical records
indicate that lymphedema is a vascular disease and a disorder, neither of which are listed in
the statute. Further, he emphasizes that the FCE report refers to the AMA Guides related to
vascular disorders in assessing the 20 percent impairment rating to the body as a whole.
Acme states that a preponderance of evidence supports that Corley sustained
lymphedema as a natural consequence of the compensable scheduled injury. Hubley v. Best
Western Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996). Nevertheless, Acme claims
that the treatment for lymphedema does not convert Corley's scheduled injury to an
unscheduled injury.1
Although we do not agree with Corley's argument that he sustained an injury to his
entire lymphatic system, we hold that the Commission's determination that Corley's injury
is scheduled is in error. The Commission relies on Corley's wife's testimony that the swelling
in his hip occurred after the cast had been placed, but the record shows that the cast was
placed in July 2019, which was after the noted hip swelling in June 2019. The occupational
therapist measured Corley's leg on February 26, 2019, and his right thigh, knee, and lower
1Acme urges that Wilson v. Jennifer Construction Co., No. CA05-1213 (Ark. App. Oct.
25, 2006) (unpublished) is dispositive. In this case, we affirmed the Commission's decision
that the claimant was not entitled to an impairment rating based on the body as a whole
when an independent doctor's evaluation "conceded that the chronic lymphedema and the
DVT should be rated to the right lower extremity.†Rule 5-2(c) (2021) of the Arkansas
Supreme Court and Court of Appeals provides that unpublished opinions issued before July
1, 2009, shall not be cited, quoted, or referred to in arguments presented to any court.
12
leg were swollen as compared to the left leg. On June 25, 2019, there was swelling in his
right hip and thigh, as observed by the therapist.
The Commission relies on the definition of lymphedema as swelling "in the affected
region.†The affected region as evidenced by the medical records includes swelling in the
area above Corley's knee, including his hip. The lymphedema affected his entire right leg
and hip, which is not listed in section 11-9-521, and therefore is unscheduled. See Milburn,
supra. Accordingly, the Commission's determination that Corley sustained a scheduled
injury is erroneous. A permanent partial disability that is not scheduled in Arkansas Code
Annotated section 521 shall be apportioned to the body as a whole. Ark. Code Ann. § 11-
9-522(a).
Because we reverse the Commission's decision that Corley sustained a scheduled
injury, we do not address Corley's alternative argument. Therefore, we reverse and remand
this case to the Commission for an award based on a whole-body impairment and for a
determination of wage-loss disability.
Outcome:
Reversed and remanded.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of BILLY CORLEY v. ACME BRICK?
The outcome was: Reversed and remanded.
Which court heard BILLY CORLEY v. ACME BRICK?
This case was heard in <center><h4><b> ARKANSAS COURT OF APPEALS </b>
<br><br>
<font color="green"><i>On appeal from The APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION </i></font></center></h4>, AR. The presiding judge was ROBERT J. GLADWIN.
Who were the attorneys in BILLY CORLEY v. ACME BRICK?
Plaintiff's attorney: Eddie H. Walker, Jr.. Defendant's attorney: Little Rock, AR - Best Workers Compensation Lawyer Directory
Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800.
When was BILLY CORLEY v. ACME BRICK decided?
This case was decided on February 12, 2022.
Little Rock, AR - Workers' Compensation lawyer represented defendant with appealing the decision of the Arkansas Workers' Compensation Commission.
On November 21, 2018, Corley suffered a compensable injury while working for
appellee Acme Brick (Acme) when he fell through a catwalk and injured his hip, leg, arm,
2
and shoulder. He reached maximum medical improvement on October 15, 2019, and he
was assessed a fifty-percent rating to his right lower extremity. When Corley sought a wholebody impairment rating, Acme objected, and the issue was presented to the Commission.
Corley's medical records reflect that on November 22, 2018, he went to the
emergency room as a result of the injury he had sustained the day before from falling through
the broken catwalk. The physician's assistant (PA) noted, "He states that he had a large
amount of swelling around the right lower leg afterwards with some redness and bruising.
Pain is from the right knee and radiates down into the lower leg and into the ankle.†The
PA noted that the physical examination showed swelling in the right knee and ankle and
that Corley had "diffuse tenderness to palpation of right lower leg from knee to ankle.â€
On February 15, 2019, Corley was examined by Dr. Justin Clayton, who noted that
Corley's MRI revealed some significant edema, "either fat necrosis or hemorrhage laterally
at the fibula.†He referred Corley to the lymphedema clinic, and on February 26, the
occupational therapist's primary diagnosis was "lymphedema of right lower extremity.†The
therapist observed that Corley's "knee and thigh are 19.6 cm larger on the right than on the
left†and that his "lower leg and foot/ankle are 32.4 cm larger on the right than on the left.â€
On March 11, the therapist noted that Corley's right thigh had a marked decrease in edema
but showed an increase in swelling below the knee. After several months of therapy, the
swelling in Corley's ankle and lower leg also began to decrease. However, on June 25, the
therapist observed an increase in edema "throughout whole right lower extremity including
his knee and hip.â€
3
According to the therapist's notes dated August 26, Corley saw Dr. Trent Johnson on
July 11, a cast was placed below Corley's knee, and it remained for three weeks until August
7. On August 20, Corley was examined by Dr. Clayton, and his chief complaint was right
leg pain. The doctor noted that Corley had edema in his right lower extremity "up to about
his knee.†The doctor's assessment was that Corley had
lymphedema after a significant injury. I was not able to palpate any obvious fluid
collections. I am not sure that any sort of surgical intervention at this point is going
to be especially helpful. I think revisiting the lymphedema clinic is probably the best
option with wound care as needed. Once he has gotten back into the lymphedema
clinic, it might not be unreasonable to re-image his leg, but this is likely going to result
in some sort of long-term disability.
On September 18, Dr. Clayton noted, "I think at this point he has gotten as much
improvement from my services as he can get. I anticipate that he will need lymphedema
treatments indefinitely.â€
A functional capacity evaluation (FCE) was done on September 26, and it was found
that Corley gave a consistent effort. He demonstrated an occasional lift/carry of up to twenty
pounds but did not demonstrate the ability to do so on a frequent basis due to his low
tolerance to standing and walking. The results of the FCE indicated that Corley is able to
perform in the sedentary classification. The evaluator noted that Corley had edema present
throughout his right lower extremity "from just above the knee to his toes.†Finally, Dr.
Clayton agreed, "The guides recommend using the section that provides the greater
impairment. In Mr. Corley's case, the impairment for his peripheral vascular disorder is the
4
greatest and results in an 20% Whole Person, 50% Lower Extremity impairment for his
work-related right injury.â€
Dr. Clayton wrote on October 16 that Corley had reached maximum medical
improvement on October 15, 2019, with an impairment of 50 percent of the lower extremity
and 20 percent of the whole person based on the AMA Guides to the Evaluation of Permanent
Impairment (AMA Guides). He recommended that Corley continue lymphedema treatments
indefinitely and referred him back to Dr. Holder for monitoring of the lymphedema as
needed.
At the July 28, 2020 hearing before the administrative law judge (ALJ), Bonnie Corley
testified that she is Corley's wife of forty years and had been an LPN for sixteen years. She
said that before his compensable injury in November 2018, Corley suffered from diabetes
and neuropathy, but those conditions did not limit his activities. She described having
witnessed Corley's lymphedema therapy sessions following his injury and said that the
therapist made a circular pushing motion beginning at his neck and working down through
his shoulders and sides then continued from his back into his groin area. She said that after
a cast was put on his right leg, she observed swelling in Corley's right leg, hip, groin area,
and left leg. She said that he has had several falls since the accident and that he is no longer
able to play ball with their grandchildren. He is too tired to do much of anything, and the
therapy wears him out. He wears compression hose, but nothing is able to control his
swelling. She said that before his accident, Corley did not complain of swelling and that she
never saw his feet swell. She said that he had taken pain medication for his arthritis and that
5
his job had included heavy labor and walking up and down sixteen flights of steps several
times a day. She said that before the accident, he would be tired but not worn out.
Corley testified that he was injured on November 21, 2018, and he said,
Early in the morning, I walk the catwalk to turn on the conveyor belt to run
the material. What I walk on is like galvanized steel. It gave way and I went down in
it. I fell all the way, the ankle and knee down in there and my leg, hip, arm and
shoulder hit up against the frame. . . . The injury was described as a degloving.
Corley described the extent of the physical labor he had performed in his job for Acme. He
said that it was normal for him to take pain medication because of the physical work, that
he began having arthritis pain in his arms and shoulders, and that it was just part of the job
that he dealt with. He said,
I worked for thirty-five years. I had very few missed days. I wanted to get back
to work. I think it was December 17 of 2018; I couldn't work no more so they laid
me off. Dr. Holder did. I did everything the doctor, the physical therapist and the
lymphotherapist asked me to do to try and get back to work.
After my injury, I can hardly do anything because I'm tired all the time. I hurt
constantly. I hurt constantly back then when I worked, but this is a different kind of
hurt. I've heard the lymphedema is poisoning my system and my leg and everything
else. I done a lot of hard work; but, where I worked at, you have to overcome the pain
as much as possible. The difference now is that I can't hardly move around or walk
anymore.
I am sixty-two years old, and I went to the ninth grade in school. My condition
is that I can't walk right. I have no balance. I don't think I'll be able to return to work.
On cross-examination, Corley said that he had a little swelling in his leg prior to his
accident and that it was normal "when you're on your feet ten to twelve hours a day.†On
May 4, 2018, he was diagnosed with chronic gout in his right knee, but he said that it did
not affect his job. He guessed he was diagnosed with diabetes around 2005 and said that he
6
takes insulin. He said that his diabetes is under control and that it had caused some
neuropathy in his left leg. He said that the accident caused a little neuropathy in his right
leg and that he had peripheral diabetic neuropathy before the accident, but "it was in my left
and that is why I was taking Lyrica.†He said that he had pain before his accident because
of his work, "but nothing like this.â€
The ALJ issued an opinion on October 5, 2020, finding that Corley had proved by a
preponderance of the evidence that he is entitled to a twenty-percent anatomical impairment
rating to the body as a whole and that he is entitled to wage loss in the amount of forty-five
percent. The ALJ found that Corley's main injury was to his right leg and that he developed
lymphedema, which is a compensable consequence of his injury. The ALJ's opinion states:
Certainly, the claimant's authorized treating surgeon made a referral for
lymphotherapy. Dr. Clayton in February 2019 noted that the claimant did not have
an orthopedic issue but needed treatment in a lymphedema clinic. Based on a review
of the evidence, it appears Dr. Clayton felt that the lasting effect of the claimant's
right knee injury was not orthopedic, but a systematic lymphedema. Dr. Clayton
assessed a 20% impairment rating to the claimant's body as a whole. Such an
impairment rating refers to the anatomical loss to injury. The claimant's impairment
is expressed in a numerical percentage of loss of the body based on the opinion of a
physician, Arkansas Code Annotated § 11-9-519, et al. The assessment of anatomical
impairment must also be based on the AMA Guides to Evaluation of Permanent
Impairment, 4th Edition (hereinafter AMA Guides). Based on a review of the AMA
Guides, lymphedema is discussed under the section referring to vascular diseases
affecting the extremities. The proper table to use in this assessment is Table 14. That
table sets impairment ratings to the body as a whole, not to the extremity. Since the
claimant developed lymphedema as a consequence of his injury, a rating to the body
as a whole is appropriate, not simply a rating to the lower extremity alone. The AMA
Guides' assessment using Table 14 is consistent with the assessment of Dr. Clayton
in assigning the claimant a 20% impairment rating to the body as whole. It should be
noted that Dr. Clayton also assigned the claimant a 50% rating to the lower extremity
in that same November 20, 2019 report. The respondents contend that the claimant
is entitled to the 50% rating to the lower extremity and therefore also not entitled to
7
any wage loss disability. It would be unreasonable based on a review of the medical
records and the claimant's treatment to think that the claimant was being treated
solely for a lower extremity injury when there is no question that the claimant suffered
issues with other areas of his body due to the consequence of the lymphedema. The
claimant also noted that he feels tired all the time and thinks the lymphedema may
be poisoning his system. However, I find an assessment based on the AMA Guides,
Table 14 and Dr. Clayton's whole-body assessment is correct. The claimant has
proven that he is entitled to the 20% impairment to the body as a whole assessed by
Dr. Clayton.
The ALJ also found that Corley was entitled to wage-loss benefits in the amount of 45 percent
in addition to the 20 percent anatomical-impairment rating.
Acme appealed, and the Commission issued its opinion on February 10, 2021,
reversing the ALJ's decision. The Commission wrote,
The parties stipulated in the present matter that the claimant sustained a
compensable injury on November 21, 2018. The probative evidence demonstrates
that the claimant sustained a compensable scheduled injury to his right lower
extremity. It was reported at Mercy Clinic on November 22, 2018 that the claimant
injured his right leg when he fell through the catwalk. It was noted, "Pain is from
right knee and radiates down into the lower leg and into the ankle.†A physician's
assistant reported swelling in the claimant's right knee, right ankle, and right lower
leg. Dr. Clayton reported on February 15, 2019 that the compensable injury caused
"swelling over the lateral aspect of his ankle. . . . He has significant edema, especially
laterally along the distal third of his fibula.†The record does not show that the
claimant sustained a compensable injury above his right knee; nor does the record
show that the claimant sustained a compensable injury to any unscheduled anatomic
region.
Dr. Clayton referred the claimant to an occupational therapist, Christine A.
Capeheart. Ms. Capehart's Primary Diagnosis on February 26, 2019, was
"Lymphedema of right lower extremity.†Stedman's Medical Dictionary, 26th
Edition, defines "Lymphedema†as "Swelling (especially in subcutaneous tissues) as a
result of obstruction of lymphatic vessels or lymph nodes and the accumulation of
large amounts of lymph in the affected region.†The preponderance of evidence
supports the administrative law judge's determination that the claimant sustained
lymphedema as a natural consequence of his compensable scheduled injury. See
Hubley v. Best Western Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996).
8
Nevertheless, the claimant's treatment for lymphedema does not convert his
compensable scheduled injury to an unscheduled injury.
. . . .
The evidence does not demonstrate that massage of the claimant's neck,
shoulders, feet, or other areas indicates that the claimant sustained a compensable
unscheduled, whole-body injury. The probative evidence of record demonstrates that
the claimant sustained a compensable scheduled injury to his right lower extremity.
A claimant who sustains a scheduled injury is limited to the applicable allowances set
forth in Ark. Code Ann. § 11-9-521 (Repl. 2012), and such benefits cannot be
increased by considering wage-loss factors absent a finding of permanent total
disability.
After reviewing the entire record de novo, the Full Commission reverses the
administrative law judge's finding that the claimant proved he sustained wage-loss
disability in the amount of 45%. The Full Commission finds that the claimant
sustained a compensable scheduled injury to his right lower extremity. The Full
Commission finds that the claimant did not sustain an unscheduled injury, and we
find that the diagnosis and treatment of lymphedema did not convert the claimant's
compensable scheduled injury to an unscheduled injury. The claimant is limited to
the applicable allowances set forth in Ark. Code Ann. § 11-9-521 (Repl. 2012). The
claimant to date does not claim that he is permanently totally disabled. The claim for
wage-loss disability is respectfully denied and dismissed.
From this decision, Corley filed a timely notice of appeal, and this appeal followed.
II. Applicable Law and Standard of Review
Arkansas Code Annotated section 11-9-521(a) (Repl. 2012) provides that an injured
employee shall receive weekly benefits for scheduled permanent compensable injuries
sustained by the employee 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. For example, the scheduled list includes 184 weeks of benefits for "[l]eg
amputated at the knee, or between the knee and the hip†and 131 weeks of benefits for "[l]eg
9
amputated between the knee and the ankle.†Ark. Code Ann. § 11-9-521(a)(3) & (4).
Arkansas Code Annotated section 11-9-522(a) (Repl. 2012) provides that an unscheduled
injury shall be apportioned to the body as a whole and shall have a value of 450 weeks.
When reviewing a decision of the Commission, we view the evidence and all
reasonable inferences deducible therefrom in the light most favorable to the findings of the
Commission. Ark. Dep't of Parks & Tourism v. Price, 2016 Ark. App. 109, 483 S.W.3d 320.
This court must affirm the decision of the Commission if it is supported by substantial
evidence. Id. Substantial evidence is evidence that a reasonable mind might accept as
adequate to support a conclusion of the Commission. Id. We reverse the Commission's
decision only if we are convinced that fair-minded persons could not have reached the same
conclusion with the same facts before them. Id. Questions regarding the credibility of
witnesses and the weight to be given to their testimony are within the exclusive province of
the Commission. Id.
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.
Coleman v. Pro Transp., Inc., 97 Ark. App. 338, 249 S.W.3d 149 (2007). The
Commission, however, may not arbitrarily disregard medical evidence. Pyle v.
Woodfield, Inc., 2009 Ark. App. 251, 306 S.W.3d 455. In order for an administrative
action to be invalid as arbitrary, the action must either lack any rational basis or hinge
on a finding of fact based on an erroneous view of the law. Pine Bluff for Safe Disposal
v. Ark. Pollution Control & Ecology Comm'n, 354 Ark. 563, 127 S.W.3d 509 (2003); Ark.
Prof'l Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). An
arbitrary act is thus an illegal or unreasoned act; an act is not arbitrary simply because
the reviewing court would have acted differently. Woodyard v. Ark. Diversified Ins. Co.,
268 Ark. 94, 594 S.W.2d 13 (1980). In workers'-compensation cases, arbitrary
disregard of evidence is demonstrated when the Commission affirmatively states that
there is "no evidence†for a proposition when such evidence has, in fact, been
10
presented in the proceeding. See Edens v. Superior Marble & Glass, 346 Ark. 487, 58
S.W.3d 369 (2001).
Lonoke Exceptional School, Inc. v. Coffman, 2019 Ark. App. 80, at 3–4, 569 S.W.3d 378, 381.
In Milburn v. Concrete Fabricators, Inc., 18 Ark. App. 23, 25–26, 709 S.W.2d 822, 823
(1986), we reversed the Commission's finding of a scheduled injury and stated,
We believe the evidence is conclusive that appellant sustained a hip injury
attributable to his broken leg. Although a scheduled injury cannot be apportioned to
the body as a whole absent total disability, Anchor Construction Co. v. Rice, 252 Ark.
460, 479 S.W.2d 573 (1972), the Arkansas Supreme Court held in Clark v. Shiloh
Tank & Erection Co., 259 Ark. 521, 534 S.W.2d 240 (1976), that a claimant who had
received a scheduled injury could receive additional compensation for an injury
which was found to be attributable to the scheduled injury.
In Taylor v. Pfeiffer Plumbing & Heating Co., 8 Ark. App. 144, 648 S.W.2d 526
(1983), we reversed a finding that a claimant's shoulder injury was a scheduled injury
and held that it was an unscheduled injury which should have been apportioned to
the body as a whole. We also said this was primarily a question of law and even if the
effects of the shoulder injury extended into the claimant's arm, this would not make
the injury a scheduled one.
Arkansas Statutes Annotated Section 81–1313(c)(3) (Repl.1976) [replaced by
section 11-9-521], provides scheduled injury payments for a "leg amputated at the
knee, or between the knee and the hip.†It is clear that the appellant's problem is not
between the hip and the knee. While medically speaking, a hip may be considered a
part of the leg, from a legal point of view, a hip injury is an injury to the body as a
whole under the Workers' Compensation Law.
Both parties agree that the question of whether an impairment rating should be assessed to
the body as a whole is one of law. Taylor, supra.
III. Scheduled Injury vs. Unscheduled Injury
Corley argues that the Commission erred as a matter of law in holding that his injury
was scheduled. He contends that there is no dispute that he developed lymphedema as a
11
result of his compensable accident; rather, the dispute is whether lymphedema is a scheduled
injury under the statute. Ark. Code Ann. § 11-9-521. He argues that his medical records
indicate that lymphedema is a vascular disease and a disorder, neither of which are listed in
the statute. Further, he emphasizes that the FCE report refers to the AMA Guides related to
vascular disorders in assessing the 20 percent impairment rating to the body as a whole.
Acme states that a preponderance of evidence supports that Corley sustained
lymphedema as a natural consequence of the compensable scheduled injury. Hubley v. Best
Western Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996). Nevertheless, Acme claims
that the treatment for lymphedema does not convert Corley's scheduled injury to an
unscheduled injury.1
Although we do not agree with Corley's argument that he sustained an injury to his
entire lymphatic system, we hold that the Commission's determination that Corley's injury
is scheduled is in error. The Commission relies on Corley's wife's testimony that the swelling
in his hip occurred after the cast had been placed, but the record shows that the cast was
placed in July 2019, which was after the noted hip swelling in June 2019. The occupational
therapist measured Corley's leg on February 26, 2019, and his right thigh, knee, and lower
1Acme urges that Wilson v. Jennifer Construction Co., No. CA05-1213 (Ark. App. Oct.
25, 2006) (unpublished) is dispositive. In this case, we affirmed the Commission's decision
that the claimant was not entitled to an impairment rating based on the body as a whole
when an independent doctor's evaluation "conceded that the chronic lymphedema and the
DVT should be rated to the right lower extremity.†Rule 5-2(c) (2021) of the Arkansas
Supreme Court and Court of Appeals provides that unpublished opinions issued before July
1, 2009, shall not be cited, quoted, or referred to in arguments presented to any court.
12
leg were swollen as compared to the left leg. On June 25, 2019, there was swelling in his
right hip and thigh, as observed by the therapist.
The Commission relies on the definition of lymphedema as swelling "in the affected
region.†The affected region as evidenced by the medical records includes swelling in the
area above Corley's knee, including his hip. The lymphedema affected his entire right leg
and hip, which is not listed in section 11-9-521, and therefore is unscheduled. See Milburn,
supra. Accordingly, the Commission's determination that Corley sustained a scheduled
injury is erroneous. A permanent partial disability that is not scheduled in Arkansas Code
Annotated section 521 shall be apportioned to the body as a whole. Ark. Code Ann. § 11-
9-522(a).
Because we reverse the Commission's decision that Corley sustained a scheduled
injury, we do not address Corley's alternative argument. Therefore, we reverse and remand
this case to the Commission for an award based on a whole-body impairment and for a
determination of wage-loss disability.
Reversed and remanded.
About This Case
What was the outcome of BILLY CORLEY v. ACME BRICK?
The outcome was: Reversed and remanded.
Which court heard BILLY CORLEY v. ACME BRICK?
This case was heard in <center><h4><b> ARKANSAS COURT OF APPEALS </b> <br><br> <font color="green"><i>On appeal from The APPEAL FROM THE ARKANSAS WORKERS’ COMPENSATION COMMISSION </i></font></center></h4>, AR. The presiding judge was ROBERT J. GLADWIN.
Who were the attorneys in BILLY CORLEY v. ACME BRICK?
Plaintiff's attorney: Eddie H. Walker, Jr.. Defendant's attorney: Little Rock, AR - Best Workers Compensation Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800.
When was BILLY CORLEY v. ACME BRICK decided?
This case was decided on February 12, 2022.