Kenneth Johnson v. Land O' Frost, Inc.

Cite as 2025 Ark. App. 41
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-24-41

Opinion Delivered January 29, 2025
KENNETH JOHNSON
APPEAL FROM THE ARKANSAS
APPELLANT WORKERS’ COMPENSATION
COMMISSION
V. [NO. G506453]

LAND O’FROST, INC.; AND PAIN
MANAGEMENT CORPORATION
APPELLEES AFFIRMED

BRANDON J. HARRISON, Judge

Kenneth Johnson appeals the decision of the Arkansas Workers’ Compensation

Commission (the Commission) that affirmed and adopted the opinion of the administrative

law judge (ALJ), who found that Johnson had not proved that he sustained compensable

work-related injuries to his back and head on 21 August 2015, nor had he proved

entitlement to permanent partial-disability benefits in regard to his back injury, permanent

and total disability, or wage-loss disability. Johnson contends that the Commission’s

decision is not supported by substantial evidence. We affirm.

Johnson was employed by Land O’ Frost as a truck driver and sustained admittedly

compensable injuries to his right hip and neck on 21 August 2015 when he “fell

approximately 20 or 25 feet from the ‘bubble of the truck’ attempting to remove the antenna

from the truck.” Johnson was seen by Dr. J.P. Wornock that day and received stitches for

a laceration to his right ear. He also complained of moderate to severe hip pain and elbow

pain. At the time of his injuries, Johnson was sixty-seven years old.
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The next day, Dr. Wornock noted that Johnson’s ear was healing well, and other

than some bruising, Johnson “denied any further problems nor complications.” On August

25, Johnson reported numbness in his right hip and dizziness for the first time. On August

28, he reported headaches, memory loss, and dizziness. Dr. Wornock assessed a “mental

status change” and ordered a CT scan of his head. The CT scan showed normal attenuation

with no focal mass lesion and no evidence of skull fracture or intracranial hemorrhage. On

September 1, Dr. Wornock found that Johnson’s laceration had healed, he had no bruising

or swelling on the side of his head, and he had “no other complaints or concerns at this

time.” Dr. Wornock noted that Johnson’s “mental status change” was “now resolved,” and

he was released to drive.

On November 20, Johnson presented with visual changes in his right eye, low back

pain, leg numbness, and loss of balance when he closed his eyes in the shower. Dr. Wornock

diagnosed bilateral low back pain without sciatica, neck pain, and a swollen eyelid, and he

referred Johnson to physical therapy.

On 8 January 2016, Johnson reported still having pain on the left side at the base of

his neck as well as mild back pain and headaches. Dr. Wornock referred him to Dr. Brent

Sprinkle for evaluation, specifically on the issue of whether Johnson could return to driving

a semi ten hours at a time. If Dr. Sprinkle cleared him to drive, he was to undergo cognitive

testing with Dr. Serena McKnight. Dr. Wornock noted that if Johnson did well on

cognitive testing, he could return to driving, but if he did poorly “then he will not be

cleared to drive and it will need to be determined if his cognition was on the decline prior

to the incident (given a normal CT head at the time of accident) then it would not be w/c

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related.” The record does not indicate whether Johnson was ever evaluated by Dr. Sprinkle

or Dr. McKnight.

On 26 January 2016, Dr. Wornock noted that Johnson was still reporting neck pain

as well as some disorientation and that Johnson would be referred to a spine and neck

specialist “for evaluation of his chronic pain (since the accident).” One week later, Johnson

showed no improvement, and Dr. Wornock noted that Johnson’s range of motion in his

neck was limited in all directions “but mostly limited on chin moving to the left shoulder.”

Johnson visited Dr. Justin Seale at Arkansas Specialty Orthopaedics on 7 March 2016

and reported neck pain radiating to his left shoulder and low back pain radiating into his

legs. Dr. Seale’s examination revealed limited range of motion (ROM) in Johnson’s cervical

spine but “full ROM without pain, tenderness, signs of instability or muscle spasms” in his

lumbar spine. Johnson’s x-rays showed “moderate disc space narrowing” and “segment

kyphosis” in his cervical spine and “severe disc space collapse of bone spurring” in his lumbar

spine. Dr. Seale diagnosed C5-6 degenerative disc disease with left-sided neck pain to the

shoulder and severe degenerative disc disease back pain and bilateral leg pain. Dr. Seale

opined that it was safe for Johnson to resume work as a commercial driver. Johnson returned

to Dr. Seale in May 2016 and was declared at maximum medical improvement (MMI) with

a zero percent impairment rating “because no objective findings of injury. Findings are pre-

existing.”

Johnson again returned to Dr. Seale in February 2017 and reported neck pain and

low back pain with radiating pain in his left shoulder, left arm, and left buttock and leg. An

x-ray revealed no significant changes to Johnson’s cervical or lumbar spine since the year

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before. Dr. Seale recommended physical therapy and restricted Johnson from commercial

driving. A follow-up report in April 2017 noted, “Physical therapy is slowly helping but he

continues to have the main complaint of neck pain and left-sided intrascapular pain that

prevents him from moving his neck to the left.” In June 2017, Dr. Seale noted that Johnson

had an injury in 2015 but “we have yet to MRI his cervical or lumbar spine. My

recommendation is an MRI of the cervical lumbar spine and follow-up afterwards. We will

most likely consider a C5-6 ESI [epidural steroid injection] if imaging is appropriate.

Currently his neck is bothering more than the back.”

Johnson received an ESI on 31 July 2017 and followed up with Dr. Seale in October

2017. Dr. Seale noted that because Johnson has had minimal improvement after physical

therapy and the ESI, it was “very reasonable to consider surgical decompression and fusion

of the cervical spine.” Dr. Seale also remarked,

The patient’s symptoms began on and after the work injury. The
patient has no history of pain in the low back or down the leg prior to the
work injury. Therefore it is within a certain degree of medical certainty that
at least 51% of the patient’s current symptoms and need for surgery are directly
related to their work injury.

Dr. Seale performed an anterior cervical fusion at the C5, C6, and C7 levels on 12

December 2017.

In February 2018, Dr. Seale recommended physical therapy for core strengthening

and stretching. A therapy progress note dated 31 May 2018 noted that Johnson “reports LB

[lower back] feeling stronger and having decrease[d] pain in LB.” Another progress note

from 5 June 2018 noted that Johnson “reports having decrease[d] pain overall at end of day

in neck and LB.”

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On 2 July 2018, Dr. Seale opined that Johnson had reached MMI and could return

to work without restrictions. Dr. Seale assigned an 11 percent impairment rating based on

a single level cervical fusion with decompression with residual pain being 10 percent and an

additional 1 percent for the second level.

Johnson returned to work full time and drove approximately 55,036 miles in 2018

and 77,975 miles in 2019. After experiencing some memory lapses at work, however,

Johnson’s primary care provider, APRN Sara Wilcox, referred him for a neurocognitive

evaluation with Dr. Dan Johson in March 2020.

Johnson relayed his medical history to Dr. Johnson and described current symptoms

of daily headaches, decreased range of motion in his cervical region, balance issues, and

tinnitus. Dr. Johnson noted that when asked, “neither the patient nor his wife who

accompanied him to the appointment described any significant residual cognitive changes

resulting from the fall.” Dr. Johnson concluded that Johnson’s short-term memory was

severely impaired, and he “appear[ed] to meet criteria for mild cognitive decline/initial stage

dementia at this time.” Dr. Johnson opined that Johnson “should be considered 100%

disabled at this time with no return to work recommended.” Johnson returned to Wilcox

on 30 June 2020 and identified his chief complaint as “needs short term disability paperwork

filled out.” He was also referred to a psychiatrist to treat his memory loss.

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In May 2021, Johnson visited Dr. Barry Baskin for an independent medical

evaluation requested by Land O’ Frost’s insurance provider. After reviewing the available

medical records1 and conducting a physical examination of Johnson, Dr. Baskin opined,

It is much easier to diagnose a traumatic brain injury when the
evaluation is done on the front end in the acute phase of the injury as opposed
to being done almost 6 years down the road. Mr. Johnson’s neck injury
appears to have been clearly related to his work injury. It does not mean that
he did not have some pre-existing degenerative changes, but as Dr. Seale
noted, he was asymptomatic and working every day and did not complain of
inability to look over his left shoulder or to be able to move his neck freely
until his work injury.

....

The difficulty of relating Mr. Johnson’s cognitive decline to his injury,
again, is more difficult due to the interval time delay since his fall. Dr.
Johnson’s evaluation shows clear significant cognitive deficits, as he states,
highlighted by severe short-term memory deficits at both acquisition and
recall retention levels. It was also noted that he has visuospatial construction
and basic visuomotor deficits, slow processing speed, and visuomotor capacity
all well below the 5th percentile. It is certainly possible that Mr. Johnson did
sustain a traumatic brain injury with his fall and closed head injury. MRI is
much better than CT at looking for traumatic brain injury[.] . . . Based on the
records from Dr. Wornock’s office who was following the patient acutely,
Mr. Johnson appeared to manifest memory deficits almost immediately after
his injury. His return to work was delayed and when he did return to work
he did not have success and ultimately was let go from his position. If he is
manifesting ongoing cognitive deficits, it is possible that he is having some
dementia.

In June 2021, Dr. Baskin supplemented his report to include his recommendations for future

medical treatment. He recommended that Johnson undergo a noncontrasted MRI brain

scan, additional physical therapy, and speech therapy.

Johnson’s MRI, performed on 20 July 2021, revealed

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Other than the neurocognitive evaluation report dated 12 March 2020, Dr. Baskin
did not receive any medical records dated after 5 June 2018.

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scattered microvascular white matter changes throughout both cerebral
hemispheres. The brain parenchyma is otherwise normal. There is no
midline shift or mass-effect. The ventricles and basal cisterns are normal. The
pituitary and corpus callosum are normal. The cerebellum and
cerebellopontine angles are normal. There is opacification of the left maxillary
sinus. There is mucoperiosteal thickening in the ethmoid air cells. The orbits
and globes are normal. There is no restricted diffusion.

Final impressions were “mild microvascular white matter changes” and “left maxillary and

ethmoid sinusitis.”

Dr. Baskin reevaluated Johnson on 4 January 2022 and reviewed the MRI results.

Dr. Baskin opined that the “microvascular changes are consistent with age for the most

part.” He also noted, “Mr. Johnson and his wife state that he did not have severe memory

problems after his fall and that he was able to resume work. His wife has reported one time

that he had some fairly acute memory changes after his work related fall.” Dr. Baskin

concluded that he did not see “clear-cut findings that suggest he has had a traumatic brain

injury or significant cognitive loss as a result of his fall.” Dr. Baskin could not say “with

reasonable medical certainty that his memory decline is related to his work injury or the

result of his age and his diffuse microvascular small vessel ischemic changes on his MRI

scan.”

The ALJ convened a hearing on 9 May 2023, and after reviewing all the medical

records submitted and other documents as well as receiving testimony from Johnson, his

wife, and Teddy Townsend, an environmental health and safety manager at Land O’ Frost,

issued an opinion on 20 June 2023. The ALJ found,

In regard to the claimed back injury, the medical records clearly
provide that the claimant suffered from severe degenerative disc disease at L5-
S1. Dr. Wornock, the claimant’s initial treating physician[,] never opined that
the claimant’s back problems were work-related. Dr. Seale, who could be

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considered the primary treating physician, opined that the neck or cervical
problems were at least fifty-one (51%) related to the work injury, but never
made such a finding in regard to the remainder of the back even after treating
the claimant for an extended period of time and performing surgery on the
claimant’s neck. The claimant returned to the same job for two (2) years.
Based upon the available evidence in the case at bar, there is no alternative
but to find that the claimant has failed to satisfy the burden of proof to show
that his back claim is compensable under the Arkansas Workers’
Compensation Act and that consequently, the question of medical and
permanent partial disability as well as attorney fees in regard to the back are
moot.

In regard to the claim of a head injury, the claimant was born on July
11, 1948, and both Dr. Johnson and Dr. Baskin made no finding in regard to
the claimant’s memory issues being related to the work injury of August 21,
2015. For that matter, no treating physician opined that the memory issue
was related to the work injury. The claimant was injured on August 21[,]
2015, and both Dr. Baskin and Dr. Johnson inferred that it would be difficult
to make a finding of a connection between the memory issue and the accident
due to the passage of time of approximately six (6) years, the lack of an MRI
of the brain, and the claimant’s age. Consequently, there is no alternative but
to find that the claimant has failed to satisfy the required burden of proof that
his head injury is compensable under the Arkansas Workers’ Compensation
Act, and that consequently all other issues relating to the head injury are moot.

As to permanent total disability, the ALJ concluded, “Any such finding of permanent total

disability would be based upon speculation.” The ALJ also reiterated that there were

multiple factors that could have caused memory loss and that no physician opined that the

cause was Johnson’s compensable injury six years ago. Consequently, the ALJ found, “there

is no alternative but to find that the claimant’s proof has failed to show that the compensable

injury was in fact the cause of the memory loss and consequently the claimant has failed to

satisfy that he is entitled to wage-loss.”

Johnson appealed to the Commission, which affirmed and adopted the ALJ’s opinion

as its own with one commissioner dissenting. This appeal followed. Under Arkansas law,

the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates, 2009 Ark. App.

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763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s findings and

conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes

of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion.

Id.

We review the Commission’s decision in the light most favorable to its findings and

affirm when the decision is supported by substantial evidence. Parker v. Atl. Rsch. Corp., 87

Ark. App. 145, 189 S.W.3d 449 (2004). Substantial evidence is evidence that a reasonable

mind might accept as adequate to support a conclusion. Id. The issue is not whether the

appellate court might have reached a different result from the Commission but whether

reasonable minds could reach the result found by the Commission: if so, the appellate court

must affirm. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007). It

is the Commission’s duty to make determinations of credibility, to weigh the evidence, and

to resolve conflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt, 102

Ark. App. 252, 284 S.W.3d 91 (2008). The Commission is not required to believe the

testimony of the claimant or any other witness but may accept and translate into findings of

fact only those portions of the testimony it deems worthy of belief. Farmers Coop. v. Biles,

77 Ark. App. 1, 69 S.W.3d 899 (2002).

I. Back Injury

Johnson argues that there is no evidence he had any symptoms in his back before his

fall at work. He cites Dr. Seale’s statement that Johnson’s symptoms “began on and after

the work injury. The patient has no history of pain in the low back or down the leg prior

to the work injury. Therefore it is within a certain degree of medical certainty that at least

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51% of the patient’s current symptoms and need for surgery are directly related to their work

injury.” Johnson asserts that the lack of any evidence of back pain before his fall, coupled

with consistent complaints of back pain after his fall, leads to the “logical conclusion” that

he sustained a “compensable aggravation of his pre-existing degenerative condition in his

back as a result of his fall.” He also insists that Dr. Seale was referring to both his neck

injury and his back injury when he opined that “51% of the patient’s current symptoms and

need for surgery are directly related to their work injury.” He contends that the

Commission erred in holding that Dr. Seale’s statement referred only to his neck injury and

asks this court to reverse the Commission’s finding as to compensability and remand for

additional findings, including his entitlement to permanent partial disability for his back

injury.

Land O’ Frost first explains that an injury for which a claimant seeks benefits must

be established by medical evidence supported by objective findings, which are findings that

cannot come under the voluntary control of the patient. Carter v. GEA N. Am., Inc., 2023

Ark. App. 134, 662 S.W.3d 685; Ark. Code Ann. § 11-9-102(4)(D) & (16) (Supp. 2023).

Here, it contends, Johnson failed to prove the existence of such findings and thus failed to

establish a compensable back injury. Land O’ Frost asserts that Johnson did not complain

of back pain until 20 November 2015, three months after his fall at work, and the records

from that visit contain no objective findings of a lower back injury. Nor are there any

objective findings of a back injury, such as muscle spasms, in any of Johnson’s physical-

therapy notes. Finally, none of his physicians noted any muscle spasms or other objective

findings of a back injury; in fact, Dr. Seale noted on Johnson’s initial visit that he had “full

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ROM without pain, tenderness, signs of instability or muscle spasms” in his lumbar spine.

An x-ray of his lumbar spine revealed degenerative disc disease but no signs of an acute

injury.

We first note that Johnson did not claim below that his back injury was an

aggravation to a preexisting injury, and we will not consider issues that are raised for the

first time on appeal. Smith v. Com. Metals, Co., 2011 Ark. App. 218, 382 S.W.3d 764.

Second, other than his lack of complaints before the fall and his complaints of back

pain after the fall, Johnson primarily relies on Dr. Seale’s statement that “51% of the patient’s

current symptoms and need for surgery are directly related to their work injury.” Johnson

claims Dr. Seale is referring to both his neck and back, but the Commission found that Dr.

Seale was referring to Johnson’s neck or cervical problems and not his back. As noted above,

it is the Commission’s duty to make determinations of credibility, to weigh the evidence,

and to resolve conflicts in medical testimony and evidence. Martin Charcoal, supra. We

conclude that reasonable minds could interpret Dr. Seale’s statement as the Commission

did, and we affirm the Commission’s decision that Johnson did not establish a compensable

injury to his back.

II. Head Injury

On this point, Johnson explains that he was treated for a head injury and complained

of headaches at the time of the fall and continuing afterward. He also notes that he had not

been treated for headaches or memory issues before his fall. He contends that the

Commission erred in its interpretation of, and reliance on, the opinions of Dr. Baskin and

Dr. Johnson regarding the correlation between his work injury and his memory issues. Dr.

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Johnson actually opined that Johnson’s “neurocognitive deficits cannot be accounted for by

normal aging,” and Dr. Baskin erroneously noted in his initial report that Dr. Johnson did

not think Johnson’s cognitive issues were related to his work injury. Johnson also points

out inconsistencies in Dr. Baskin’s reports: at one point, Dr. Baskin reports, “The patient

and his wife today both state that the patient began noticing cognitive decline and memory

deficits almost immediately after the injury”; however, in a later report he states, “Mr.

Johnson and his wife state that he did not have severe memory problems after his fall.”

Johnson concludes that the Commission erred by ignoring objective findings of a head

injury, misconstruing the opinion of Dr. Johnson, and giving weight to Dr. Baskin’s

conclusory statement that he could not state that Johnson’s cognitive decline was caused by

the fall.

Land O’ Frost responds that the record contains substantial evidence to support the

Commission’s opinion regarding Johnson’s failure to prove a compensable head injury. Just

like the back-injury claim, the record contains no evidence of any objective findings that

would support his claim of a head injury. While Johnson undoubtedly sustained a laceration

to his right ear, a CT scan of Johnson’s head performed on 28 August 2015, one week after

his fall at work, showed “normal attenuation with no focal mass lesion and no evidence of

skull fracture or intracranial hemorrhage.” At a follow-up visit a few days later, Dr.

Wornock found that Johnson’s laceration had healed, he had no bruising or swelling on the

side of his head, any “mental status change” had resolved, and he had “no other complaints

or concerns at this time.”

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Johnson eventually returned to work with no restrictions both before and after his

neck surgery, and after his surgery, he worked as a commercial driver for approximately two

years before he began to experience memory lapses. He was placed on leave and referred

to Dr. Johnson for a neuropsych consult, which occurred on 3 March 2020, approximately

four and a half years after his fall at work. Dr. Johnson’s report indicated that “neither the

patient nor his wife who accompanied him to the appointment described any significant

residual cognitive changes resulting from the fall.” Dr. Johnson ultimately diagnosed “mild

cognitive decline/initial stage dementia,” but he made no determination or finding that the

work injury contributed to this condition.

In addition, Dr. Baskin noted in his first evaluation of Johnson that it would be

difficult to relate his cognitive decline to his injury given the time delay since his fall.

Johnson underwent a brain MRI, which showed only “mild microvascular white matter

changes” and “left maxillary and ethmoid sinusitis.” Dr. Baskin’s evaluation after the MRI

concluded that the microvascular changes are consistent with age and that he did not see

“clear-cut findings that suggest [Johnson] has had a traumatic brain injury or significant

cognitive loss as a result of his fall.” Dr. Baskin could not say “with reasonable medical

certainty that his memory decline is related to his work injury or the result of his age and

his diffuse microvascular small vessel ischemic changes on his MRI scan.” Land O’ Frost

concludes that the evidence in the record is more than sufficient to affirm the Commission’s

opinion on this point.

We hold that reasonable minds could reach the result found by the Commission.

Johnson is essentially asking this court to reweigh the evidence, but again, it is the

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Commission’s duty to make determinations of credibility, to weigh the evidence, and to

resolve conflicts in medical testimony and evidence. Martin Charcoal, supra.

III. Permanent Total Disability and Wage Loss

The issue of permanent and total disability or, in the alternative, wage loss, means

the inability, because of a compensable injury or occupational disease, to earn any

meaningful wages in the same or other employment. Ark. Code Ann. § 11-9-519(e)(1)

(Repl. 2012). The burden of proving the inability to earn any meaningful wages is on the

injured worker. Ark. Code Ann. § 11-9-519(e)(2). Permanent benefits may be awarded

only if the compensable injury was the major cause of the disability or impairment. Ark.

Code Ann. § 11-9-102(4)(F)(ii)(a).

Johnson argues that he is 100 percent disabled due to his neurocognitive deficits

according to Dr. Johnson. In addition, Johnson’s primary work experience has been as a

commercial driver, and since his fall at work, he has had difficulty walking and turning his

head or neck to the left. He contends that if he cannot turn to see his mirrors or otherwise

see what is going on around him, his ability to perform as a driver is severely impaired, if

not lost completely. At this point, he says, he is unable to perform any gainful employment.

Land O’ Frost answers that after his work injury, Johnson returned to work as a

commercial driver on two separate occasions (before and after his neck surgery), and during

that time, he passed two physicals needed to qualify for his commercial license. Thus,

Johnson’s claim for permanent total disability or wage loss is unrelated to the work injury

“since claimant was able to earn the same or similar wages performing the same job after

the work injury.” Land O’ Frost also asserts that because there is no evidence of a

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compensable head injury, Johnson cannot prove that his work injury is the major cause of

his subsequent dementia. Finally, because substantial evidence supports the denial of his

back- and head-injury claims, his claims for permanent and total disability and wage-loss

disability are moot.

We agree that because we have affirmed the Commission’s decision that Johnson did

not prove a compensable injury to his back or his head, he necessarily is not entitled to any

disability benefits related to those alleged injuries.

Affirmed.

KLAPPENBACH, C.J., agrees.

VIRDEN, J., concurs.

BART F. VIRDEN, Judge, concurring. I write separately to say that the current

state of workers’-compensation law in Arkansas leaves us with no other choice but to affirm

the Commission’s decision.

Objective evidence of a traumatic brain injury, or closed-head injury (TBI), is often

impossible to obtain because “the absence of CT abnormalities does not exclude structural

damage—an observation relevant to litigation procedures, to management of mild TBI, and

when CT scans are insufficient to explain the severity of the clinical condition.” Andrew I.

R. Maas et al., Traumatic Brain Injury: Progress and Challenges in Prevention, Clinical Care, and

Research, 21 The Lancet Neurology, 1004, 1004 (Nov. 2022). In Parson v. Arkansas Methodist

Hospital, 103 Ark. App. 178, 183–84, 287 S.W.3d 645, 649 (2008), we acknowledged this

difficulty, noting that

we recognize appellant’s dilemma in attempting to prove objectively a condition that
is undetectable with objective tests. However, Ark. Code Ann. § 11-9-102(4)(D)

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requires that a compensable injury be established by medical evidence supported by
objective findings, and we see no way for this dilemma to be addressed other than
by legislative action.

The objective-findings requirement in Ark. Code Ann. § 11-9-102(4)(D) leaves the

injured worker without recompense for devastating, life-changing injuries affecting his or

her family and friends, ability to work, enjoyment of life, and general physical health and

comfort. For the rest of his or her life, the injured worker must financially navigate the

consequences of a work-related injury without help from the compensation system

ostensibly designed to do just that. The objective-findings requirement in this area of

workers’-compensation law ignores reality, medical technology, and common sense. Quite

simply, our legal system has not kept pace with the medical system. Consider this

concurrence a call for legislative action to protect and compensate workers who were

grievously injured in the course of work.

Caldwell Law Firm, P.A., by: Andy L. Caldwell, for appellant.

Friday, Eldredge & Clark, LLP, by: Guy Wade and Johanna B. Wade, for appellees.

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