The opinion
John B. Robbins, Judge, dissenting. I agree with the majority that the Commission’s award of additional medical benefits should be affirmed. However, I cannot agree that there is substantial evidence to support the Commission’s decision to award temporary total disability benefits from July 28, 2000, through a date yet to be determined. Therefore, I must dissent.
In its opinion, the Commission found Ms. Marshall to have a scheduled injury, and thus she is entitled to TTD benefits if she remains in her healing period and has not returned to work, regardless of whether she is incapacitated from earning wages. See Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146 , 41 S.W.3d 822 (2001). Neither party takes issue with the Commission’s characterization of the injury as a scheduled one. The Commission further found that Ms. Marshall remains in her healing period and that she has not returned to work, thus entitling her to ongoing TTD benefits. There is substantial evidence that she remains in her healing period, but I cannot agree that there is any evidence to support the finding that she has not returned to work.
In her testimony, Ms. Marshall acknowledged that “I was off [work] from about May 16th or 17th through June 5th,” and that “I went back to work about June 5th, and further that she continued to work until she was fired.” As the majority opinion points out, her subsequent termination on July 28 was for absenteeism and tardiness unrelated to her claim.
In my view, the majority’s reliance on Farmers Coop. v. Biles, 77 Ark. App. 1 , 69 S.W.3d 899 (2002), is misplaced. In that case the claimant did not leave work after his compensable injury, but instead continued to work in spite of his pain and difficulties before being terminated for reasons related to the injury. In contrast, Ms. Marshall left work on May 17 and remained off work through June 5, when she returned to work. 1 Inasmuch as her subsequent termination was for reasons unrelated to her injury, it cannot be said that she made an “unsuccessful attempt to return to the workforce” as contemplated by this court in Farmers Coop. v. Biles, supra.
I agree with appellant’s argument that, because Ms. Marshall returned to work after her scheduled injury, she should be barred from receiving TTD benefits for the period following her termination. I respectfully dissent.
Hart, Crabtree, and Roaf, JJ., join in this dissent.
Although the majority’s opinion refers to the period during which Ms. Marshall returned to work as “two days,” her testimony indicated that the actual period was almost eight weeks.