# Nichols v. Omaha School District

> Court of Appeals of Arkansas · February 24, 2010 · 2010 Ark. App. 194

URL: https://www.frixlaw.com/law-library/cases/5110447

## Case

- **Full name:** Janice NICHOLS v. OMAHA SCHOOL DISTRICT
- **Court:** Court of Appeals of Arkansas
- **Decided:** February 24, 2010
- **Citations:** 2010 Ark. App. 194; 374 S.W.3d 148; 2010 Ark. App. LEXIS 182
- **Precedential status:** Published
- **Opinion:** Dissent by Hart
- **Judges:** Agree, Brown, Glover, Gruber, Hart, Henry, Kinard
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JOSEPHINE LINKER HART, Judge, dissenting.
Janice Nichols asserts that she is entitled to additional medical services in the form of seeing a shoulder specialist in connection with her compensable left-shoulder injury. The relevant statute provides that an “employer shall promptly provide for an injured employee such medical ... services ... as may be reasonably necessary in connection with the injury received by the employee.” Ark.Code Ann. § ll-9J508(a)8 (Supp.2009)< CARETS-. In making its decision, the Commission failed to consider the elements of this statute, and consequently, we should reverse and remand.
In denying medical services, the administrative law judge (ALJ) noted that after seeing her orthopedic surgeon on August 24, 2005, Nichols did not seek treatment for her shoulder until June 26, 2007, “almost a two-year gap in treatment for her shoulder.” The ALJ concluded that, given the two-year gap and the absence of medically documented complaints of shoulder problems during that time, “it would require conjecture and speculation to causally link the claimant’s current shoulder problems to her work incident.”
In relying solely on this “two-year gap” to deny benefits, the Commission failed to consider the elements of the statute. It seems self-evident that the Commission should have considered the latest medical records to determine whether Nichols needed “medical services” in the form of a visit to a specialist, whether such a visit was “reasonably necessary,” and whether such a visit would be “in connection with” the injury, but the Commission did not do so. Those medical records showed in part that Nichols went to her family physician complaining of left-shoulder pain and that she was prescribed medications, assessed as having joint pain, and given an “ortho referral.” Also, a letter from her attorney to Omaha School District indicated that Nichols sought authorization for treatment from a “shoulder specialist,” as her orthopedic surgeon had “retired.”
19In previous cases, gaps in medical treatment were not dispositive on this question. See Huckabee v. Wal-Mart, Inc., 104 Ark.App. 22 , 289 S.W.3d 107 (2008) (seeking medical services in the form of monitoring the injury); Wal-Mart Stores, Inc. v. Brown, 82 Ark.App. 600 , 120 S.W.3d 158 (2003) (seeking medical services in the form of a visit to a new physician). I note that the Omaha School District apparently waived a statute-of-limitations defense to the claim by fading to plead it. Ark.Code Ann. § 11-9-702(e) (Supp.2009). The Commission, in essence, brought the defense in through the back door.
Finally, we should not provide the Commission with an analysis it did not provide, as our review is not de novo, but instead whether substantial evidence supports the Commission’s findings. See, e.g., Sonic Drive-In v. Wade, 36 Ark.App. 4 , 816 S.W.2d 889 (1991). Perhaps more guidance is needed from the appellate courts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5110447. Public record. Not legal advice.