# Thurman v. Clarke Industries, Inc. > Court of Appeals of Arkansas · March 16, 1994 · 45 Ark. App. 87 URL: https://www.frixlaw.com/law-library/cases/9768545 ## Case - **Full name:** Ira THURMAN v. CLARKE INDUSTRIES, INC. - **Court:** Court of Appeals of Arkansas - **Decided:** March 16, 1994 - **Citations:** 45 Ark. App. 87; 872 S.W.2d 418; 1994 Ark. App. LEXIS 130 - **Precedential status:** Published - **Opinion:** Dissent by Mayfield - **Judges:** Pittman, Mayfield - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768545 ## Opinion text Melvin Mayfield, Judge, dissenting. I cannot agree with the majority opinion in this case because it allows the Commission to do exactly what we said in our first opinion that the Commission could not do. That opinion said, “we hold that the Commission erred in taking the appellant’s refusal to submit to surgery into consideration in fixing the amount of his compensation.” Thurman v. Clarke Industries, Inc., 35 Ark. App. 171, 173 , 819 S.W.2d 286, 287 (1991). Yet, in spite of that specific holding, the majority opinion affirms the Commission decision which states on the fourth page that: Claimant contends that he is entitled to additional benefits because he has not reached the end of his healing period and that he needs psychological treatment to overcome his phobia of surgery. However, it is apparent from a review of the claimant’s testimony that he does not desire to undergo surgery, regardless of the circumstances. Obviously, the Commission took into consideration the claimant’s refusal to submit to surgery. The majority opinion says this was permissible because the Commission did not take that refusal into consideration “in fixing the amount” of compensation to which appellant might be entitled. Not only is this a distinction without a difference — the majority recognize that appellant is seeking “additional temporary total and temporary partial disability benefits” — but this view is contrary to the statutory and case law with regard to medical services. See Ark. Code Ann. § 11-9-102 (9) (1987) and Ark. Code Ann. § 11-9-102 (6) (Supp. 1993); Brooks v. Arkansas-Best Freight System, Inc., 247 Ark. 61, 64 , 444 S.W.2d 246, 248 (1969) (medical services are included in the statutory definition of “compensation”). After we remanded this case, the claimant’s attorney told the administrative law judge at the hearing held on February 11, 1992, that: [Ojur position is that he has not reached maximum medical healing. In other words, he may have reached — may or may not have if he had had the surgery, but he didn’t have the surgery, and until we can deal with the phobia, assuming we can deal with the phobia, that he’s entitled to continuing temporary partial benefits. Actually, the law judge did not come to grips with the phobia issue presented, and the Commission indicated that it did not read all of the appellant’s testimony on this point. Appellant testified that he had discussed the phobia with Dr. Back (the record shows this was a clinical psychologist) in January of 1990, but the doctor said it was not amenable to treatment at that time. However, appellant said he had not been back to see Dr. Back in the two years since then; that he did not have the money to see him; that he was willing to see him if the insurance company would pay for it; and that he might now undergo the surgery if he was treated for the phobia and the doctors felt they could perform the surgery. Thus, the Commission was not accurate in saying that appellant would not undergo surgery “regardless of circumstances.” The Commission’s “alternative” finding was that claimant’s fear of surgery was not caused or aggravated by his compensable injury and the employer would therefore not be liable for the treatment of the phobia. No authority is given for that “alternative” holding and neither the appellee nor the majority opinion in this court comes to grips with this issue. The appellant, however, raises that issue, and just before his conclusion, the third point of his summary is as follows: 3. Mr. Thurman’s healing period will not extend indefinitely. When there is nothing that can reasonably be done to improve Mr. Thurman’s knee... to make him as good as he can get... his healing period will end. All Mr. Thurman asks toward that end is that he .be allowed psychological counseling for a reasonable period of time to explore his phobia of surgery, so that he might be able to undergo surgery and recover from his knee injury. If, after counseling, he still refuses surgery, his healing period would end because he would have reached maximum recovery. I would reverse and remand this case with directions to the Commission to provide the appellant the psychological counseling he wants and obviously needs. The issue of the end of the healing period and entitlement to temporary and permanent disability would have to wait until the conclusion of a reasonable period of counseling. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768545. Public record. Not legal advice.