Charles Lawless v. At&t Technical Services Company, Inc.

Cite as 2025 Ark. App. 67
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-24-289

Opinion Delivered February 5, 2025

CHARLES LAWLESS APPEAL FROM THE ARKANSAS
APPELLANT WORKERS’ COMPENSATION
COMMISSION
V. [NO. H106661]

AT&T TECHNICAL SERVICES
COMPANY, INC.; OLD REPUBLIC
INSURANCE COMPANY; AND
SEDGWICK CLAIMS MANAGEMENT
SERVICES, INC.
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Charles Lawless appeals from an opinion by the Arkansas Workers’

Compensation Commission (Commission) affirming and adopting the findings of fact and

conclusions of law made by the administrative law judge (ALJ) in favor of appellees AT&T

Technical Services Company, Inc. (AT&T), and Sedgwick Claims Management Services, Inc.

(Sedgwick). The Commission found that appellant was not entitled to additional temporary

total-disability (TTD) benefits. On appeal, appellant contends that substantial evidence does

not support the Commission’s decision. We affirm.

I. Relevant Facts

Appellant was employed by AT&T at a worksite in Fort Smith, Arkansas. It is

undisputed that appellant sustained a compensable neck injury on May 28, 2021, while
trying to hold a door with his right arm and carrying eight laptops into a building. On

January 5, 2022, appellant underwent neck surgery by Dr. Gannon Randolph, an orthopedic

surgeon. Approximately eight weeks later, on February 28, 2022, Amanda Hawes, PA-C,1

from the same clinic as Dr. Randolph, released appellant to return to work with the following

light-duty restrictions: “He needs to avoid lifting anything heavier than 20lbs and avoid

working longer than 4 hours a day on a computer or talking on the phone.” Thereafter, on

April 5, 2022, P.A. Hawes released appellant to return to work on April 5, 2022, without

any restrictions. During a follow-up visit on April 21, 2022, Dr. Randolph noted that

appellant’s “radicular symptoms have completely resolved but that he is still struggling with

some left-sided neck pain” after a recent fall.

Appellant did not return to work for AT&T, and it is undisputed that appellees

stopped paying appellant TTD benefits after May 1, 2022, relying on the medical report that

appellant had been released back to work without any restrictions. Appellant applied for

unemployment insurance benefits on May 18, 2022, and in his application, appellant

checked the box that he was immediately available for full-time work and did not have “any

disabilities that [would] limit [his] ability to perform [his] normal job duties.” Appellant

received unemployment insurance benefits from May 28, 2022, until September 12, 2022.

On July 19, 2022, appellant’s counsel wrote a letter to appellees’ counsel stating that

appellant had contacted AT&T but was not allowed to return to work. In a second letter

1
“PA-C” describes a Physician’s Assistant and Physician’s Assistant Amanda Hawes is
hereafter referred to as “P.A. Hawes.”

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dated July 22, 2022, appellant’s counsel demanded that appellant be provided a job or that

his TTD benefits be reinstated.

On July 21, 2022, Dr. Randolph gave appellant a “trigger point injection.” Dr.

Randolph also noted that he discussed with appellant that at his current level, he would

normally let a patient “go back to play in the NFL so [he] really [did] not have any restrictions

for him.” Dr. Randolph stated that he planned to see appellant in another six months, at

which point appellant would have reached maximum medical improvement (MMI).

Appellant exercised his right to have a change of physician, and appellant began

seeing Dr. Kyle Mangels on November 21, 2022. Dr. Mangels noted that appellant

complained of left-side neck pain and vocal-cord issues. He recommended that appellant

needed to have X-rays of his neck, another cervical MRI, and a vocal-cord check. He noted

that appellant “is retired now and not working.” In his physician’s recommendation report,

Dr. Mangels issued a temporary weightlifting restriction of forty pounds and noted that

appellant had not reached MMI but was not temporarily totally disabled.

Appellant’s January 15, 2023, cervical MRI revealed the following impressions:

1. Anterior fusion C5–6 level.

2. Degenerative disc disease with posterior spurring and disc bulging C6/7 level with
right foraminal narrowing.

3. Small protrusion C3–4 with no central or foraminal narrowing.

On March 8, 2023, Dr. Mangels thought appellant might need another neck surgery

based on the MRI results. However, he wanted to wait until appellant was able to have his

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vocal cord checked, which was scheduled the following month. Dr. Mangels noted that

appellant was on the same “work restrictions” as before and that he could “lift up to 40

pounds and alternate sitting and standing as required by the patient.” He further noted that

those restrictions were temporary and were “the same as before.”

Dr. Michael Gwartney, an otolaryngologist in Fort Smith, saw appellant on April 25,

2023. Dr. Gwatney opined that appellant had “pretty good vocal cord motion” and “pretty

good glottic closure.” Dr. Gwartney did not think appellant needed surgery for his vocal

cord and did not think there was “any significant risk” to appellant’s vocal cord if Dr.

Mangels wanted to perform a second surgery on that side of appellant’s neck.

Appellant filed a claim for additional TTD benefits, and the appellees controverted

appellant’s entitlement to any additional TTD benefits after May 1, 2022, when he was

released from his treating physician’s care (then, Dr. Randolph) without any work

restrictions. A hearing before the ALJ was held a year later on May 23, 2023. Appellant

testified that he was injured on May 28, 2021, when he was trying to hold a door open with

his right arm and carry eight laptops into a building. He said he felt something like an

electric shock that went down his shoulder into his arm. He finished the task he had been

assigned and then went home “to fix it” himself before he eventually received surgery on

January 5, 2022. Appellant testified that when he was aware that he was released to return

to work, he contacted AT&T and was told that he had been removed from the contract. He

was instructed to go to the AT&T job search site, but appellant stated there were no jobs

listed on that site for which he felt he was qualified. Appellant further stated that he looked

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for other jobs but did not find anything. Appellant admitted that he drew unemployment

for three months and conceded that there might be a week that he did not check with as

many possible employment opportunities as he was supposed to.

Appellant argued that he is limited in what he can do as a result of his injury and his

surgery. Hs said he has a diminished range of motion when looking up or turning his head

side to side; his voice had changed; and he was experiencing pain and discomfort at night to

the point that he was not sleeping. He did not believe he could perform the job that he had

at the time of the accident in his current physical condition because it involved watching

computer screens, talking, and sitting at a keyboard, all of which he said were either painful

or difficult.

On cross-examination, appellant admitted he had testified in his deposition that his

numbness and shoulder pain had been resolved after surgery. However, appellant denied

telling Dr. Mangels that he is retired and claimed that he had told Dr. Mangels only that he

had turned sixty-five at the time. Appellant reiterated that he was still looking for a job, even

though he was also receiving 50 percent VA disability benefits. Regarding appellant’s

previous position with AT&T, appellant admitted he knew the position was part of a

subcontract that AT&T had with contractor, Inserso Corporation, for the federal

government in Fort Smith. Appellant testified that he understood that the job had moved

from Fort Smith to a Little Rock location.

Appellant clarified that he spoke with his previous supervisor with AT&T, Carlos

Colon, about going back to work in August 2021; however, that conversation happened

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before he was released to work in April 2022. Appellant stated that after he was released to

work, he was given a two-week period to look for other positions with AT&T on its job

website.

Appellant testified that he was a “Systems Engineer II”; he ran network security and

had migrated entire systems onto the Cloud; worked for Homeland Security with U.S.

Department of Defense top-secret clearance; and worked with computers, printers, and

scanners. Although appellant testified at the hearing that he could not do the job he had

with AT&T, appellant admitted that during his deposition, he had testified that he could

still do his job. He further admitted that he said he had located some jobs out of state and

thought at the time of his deposition that he had several job prospects. He did not remember

saying in his deposition that there were positions available in Cincinnati and Washington,

D.C., but he conceded that he did not want to move to Washington, D.C. Appellant agreed

that his job did not require him to lift heavy servers or printers by himself and that he said

in his deposition that a laptop was typically the heaviest item he had to lift. Finally, appellant

admitted that he was not “totally incapacitated from earning wages” since the previous year

as he had job prospects and was drawing unemployment.

After appellant rested his case, appellees called Carlos Colon, appellant’s direct

supervisor at AT&T. He explained that AT&T was a subcontractor with Inserso

Corporation, and Inserso had the contract with the federal government for work in Fort

Smith. Colon testified that appellant’s position was moved from Fort Smith to Little Rock

toward the end of summer in 2021, long before appellant was able to return to work. Colon

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remembered having a conversation with appellant at that time and that he told appellant

about the position moving to Little Rock and also told appellant to apply for other jobs on

the AT&T website. Colon testified that while appellant was unable to work due to his

medical treatment, the position in Little Rock had to be filled. Mr. Colon did not recall

having contact with appellant in 2022 about him returning to work.

Regarding appellant’s previous job, Mr. Colon stated that it required appellant to

travel a lot. He said that although appellant had to talk on the telephone at times during his

working day, it was not something he expected appellant to do constantly. He was not

required to talk on the phone while driving to customer sites.

On cross-examination, Mr. Colon admitted AT&T had not offered appellant any

employment in a particular position since he was released to return to work in April 2022.

That said, he did not know if anyone had notified him that appellant had been released to

return to work. He said that during his last conversation with appellant, it was his impression

that appellant was not interested in continuing to work for AT&T. Mr. Colon did, however,

acknowledge that the conversation took place in the summer of 2021 when appellant was

still under active medical treatment.

On redirect examination, Mr. Colon said that there were thousands of job openings

with AT&T, but as far as he knew, appellant did not contact him or AT&T about going

back to work. He said that it is easy to look for jobs on the website.

Appellant was re-called as a witness. He testified that he contacted AT&T after he

had been released to work, but he had not been offered to return to work.

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After the hearing, the ALJ filed an opinion on August 16, 2023, that made the

following relevant findings:

As set out above, the only issue that was adjudicated at the hearing was
claimant’s entitlement to TTD or TPD benefits from May 1, 2022, until a date to be
determined. Respondents accepted claimant’s cervical spine injury and paid TTD
benefits until May 1, 2022. As a cervical spine injury is an unscheduled injury,
claimant must prove by a preponderance of the evidence that he remains within his
healing period and suffers a total incapacity to earn wages in order to receive TTD or
TPD benefits, Allen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005).
As set out above, claimant’s contention is that he had not reached MMI when he was
released to return to full duty, and because AT&T did not allow him to return to
work, he is entitled to TTD or TPD benefits.1 After reviewing all the documentary
evidence and considering the testimony, I agree with claimant that he had not reached
MMI when he was released to full duty, but I disagree that he is entitled to TTD or
TPD from May 1, 2022, through May 23, 2023.

Taking the second part of claimant’s argument first, the job claimant had in
Fort Smith with AT&T no longer exists: I found Mr. Colon to be a credible witness
on this point; claimant did not dispute that the position he held in Fort Smith had
moved to Little Rock. As both witnesses explained, AT&T was a subcontractor with
Inserso, who in turn had a contract with the United States Department of Homeland
Security. On May 4, 2021, 24 days before claimant’s injury, there was already a plan
in place to shift claimant’s position to Little Rock. That move was done in August
2021, before claimant had been released to return to work in any capacity. Because
of the contract with Inserso, AT&T hired another Systems Engineer while claimant
was under doctor’s restrictions. I cannot find that AT&T lacked reasonable cause in
refusing to return claimant to his previous position, as that position had been filled
as per the requirements of its contract with Inserso.

As for the failure to reach MMI, from the period of May 1, 2022, until he saw
Dr. Mangels on November 21, 2022, there are no medical records to support
claimant’s contention that he was unable to work. On the contrary, Dr. Randolph
explained in his July 21, 2022, report that claimant was under no restrictions, and
tacitly adopted the release forms completed by PA-C Hawes for light duty on February
28, 2022, and full duty on April 5, 2022, as being consistent with his normal protocol.
Claimant testified on direct examination that he didn’t think he could do the job he
had at the time of the accident and on cross-examination, said that he did not believe
he was totally incapacitated. Additionally, claimant was actively seeking employment
as required by the Arkansas Division of Workplace Services to draw unemployment

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benefits, demonstrating that he believed he was able to return to work in some
capacity.

At claimant’s first visit with him, Dr. Mangels imposed a 40-pound lifting
restriction on claimant on November 21, 2022, and stated in his March 8, 2023,
report that claimant would need to alternate sitting and standing as required. Perhaps
because claimant wasn’t working or maybe because he thought claimant was retired,
Dr. Mangels did not complete a recommendation report after the March 2023 visit
as he did in November 2022; however, he stated that claimant’s restrictions “are the
same as before.” At that time, Dr. Mangels still believed claimant had not yet reached
MMI but was not temporarily totally disabled.

Because TTD benefits do not, in all cases, correspond to the healing period,
Cnty. Mkt. v. Thornton, 27 Ark. App. 235, 770 S.W.2d 156 (1989), claimant cannot
solely rely on the statement by Dr. Randolph in July 2022 that he would be at MMI
in six months to support his TTD claim. “Temporary-total disability is that period
within the healing period in which the employee suffers a total incapacity to earn
wages,” Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). I see nothing in the medical records that supports a conclusion that claimant
had a total incapacity to earn wages after he was released to full duty in April 2022,
especially when I consider not only the medical evidence but also “his age, education,
experience, and other matters reasonably expected to affect the claimant’s earning
power.” Breshears, Id. Further, claimant himself denied he had a total incapacity to
earn wages (TR. 45); he only testified he could not do his position with AT&T
(TR.21)

Because I do not believe AT&T acted unreasonably in filling claimant’s
position and because the evidence does not support claimant’s contention that he
was totally incapacitated due to his unscheduled injury from May 1, 2022, until the
date of the hearing of this matter, I find that claimant has failed to meet his burden
of proving entitlement to TTD or TPD during the period from May 1, 2022, through
May 23, 2023.

1
While claimant did not specifically plead that he was entitled to additional
TTD/TPD benefits pursuant to A.C.A. § 11-9-505(a)(1), that is the essence of his
argument on this point.

Appellant appealed the ALJ’s decision, and on January 29, 2024, the Commission,

in a majority decision, affirmed and adopted the ALJ’s opinion as its own. This appeal

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followed. Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion.

SSI, Inc. v. Cates, 2009 Ark. App. 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.

II. Standard of Review

In appeals involving claims for workers’ compensation, the appellate court views the

evidence in the light most favorable to the Commission’s decision and affirms the decision

if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431

S.W.3d 858. 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. Id. Additionally, questions concerning the

credibility of witnesses and the weight to be given to their testimony are within the exclusive

province of the Commission. Id. Thus, we are foreclosed from determining the credibility

and weight to be accorded to each witness’s testimony, and we defer to the Commission’s

authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson

v. Smurfit Stone Container, 2009 Ark. App. 800, 373 S.W.3d 347. When there are

contradictions in the evidence, it is within the Commission’s province to reconcile

conflicting evidence and determine the facts. Id. Finally, this court will reverse the

Commission’s decision only if it is convinced that fair-minded persons with the same facts

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before them could not have reached the conclusions arrived at by the Commission. Prock,

supra.

III. TTD Benefits

The standard used for determining entitlement to TTD benefits differs depending on

whether the injury is a scheduled injury or an unscheduled injury. City of Fort Smith v. Kaylor,

2019 Ark. App. 517, 588 S.W.3d 803. In this case, it is undisputed that appellant sustained

an unscheduled cervical injury. In order to be entitled to TTD benefits for an unscheduled

injury, a claimant must prove by a preponderance of the evidence that he remains within his

healing period and suffers a total incapacity to earn wages. Rogers v. Aramark & Sedgwick

Claims Mgmt., 2022 Ark. App. 507, 657 S.W.3d 196; Allen Canning Co. v. Woodruff, 92 Ark.

App. 237, 212 S.W.3d 25 (2005); Ark. State Highway & Transp. Dep’t v. Breshears, 272 Ark.

244, 613 S.W.2d 392 (1981). When the Commission denies benefits because the claimant

has failed to meet his or her burden of proof, the substantial-evidence standard of review

requires us to affirm if the Commission’s decision displays a substantial basis for the denial

of relief. Adams v. Georgia Pac., LLC, 2014 Ark. App. 558, 444 S.W.3d 897.

Appellant argues on appeal that he was entitled to additional TTD benefits because

he was still in his healing period and was unable to work. He explains that he suffered from

voice difficulties, a diminished range of motion, and pain from prolonged sitting in the same

position. Even though he claims he cannot work, he alternatively argues that he should be

entitled to TTD merely because AT&T failed to offer him a position after he had been

released to work. He argues that “it would certainly seem that such a large employer would

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have been able to find gainful employment for appellant, even assuming that the work release

authored by P.A. Hawes accurately assessed the claimant’s disability while he was in his

healing period.” We disagree with appellant’s arguments.

Here, the Commission specifically found that although appellant was still in his

healing period, “the evidence does not support claimant’s contention that he was totally

incapacitated due to his unscheduled injury from May 1, 2022, until the date of the hearing

of this matter.”2 Despite any contention that appellant suffered a total incapacity to earn

wages, the record supports the Commission’s decision otherwise. P.A. Hawes released

appellant to return to work on April 5, 2022, without any restrictions. Appellant applied

for, and began receiving, unemployment insurance benefits starting in May 2022, and on his

application for unemployment insurance benefits, appellant checked that he was

immediately available for full-time work and did not have “any disabilities that [would] limit

[his] ability to perform [his] normal job duties.” Then, on July 21, 2022, Dr. Randolph noted

that he discussed with appellant that at his current level, he would normally let a patient “go

back to play in the NFL so [he] really [did] not have any restrictions for him.” Further, after

2
To the extent appellant also argues that the circuit court failed to consider the two-
part test as required, we disagree because the circuit court not only cited Breshears, supra, but
also made specific findings as to both parts of the test. Although appellant notes that the
Commission also found that it did “not believe AT&T acted unreasonably in filling
claimant’s position,” that finding appears to be in response to the footnote in the opinion
stating that appellant was, in essence, claiming “that he was entitled to additional TTD/TPD
benefits pursuant to A.C.A. § 11-9-505(a)(1).” Appellant does not argue on appeal that he
was entitled to TTD pursuant to Arkansas Code Annotated section 11-9-505(a)(1) (Repl.
2012). Accordingly, we do not discuss it in this opinion.

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appellant changed physicians to Dr. Mangels, Dr. Mangels checked the box on the

physician’s recommendation report that appellant was not temporarily totally disabled.

Finally, even appellant admitted at the hearing that he was not “totally incapacitated from

earning wages” since he had job prospects and was drawing unemployment during the

previous year. These findings support the Commission’s decision that appellant was not

totally incapacitated from earning wages after May 2022 and, therefore, was no longer

entitled to TTD benefits.

The cases appellant cites are distinguishable. Bingle v. Quality Inn, 96 Ark. App. 312,

241 S.W.3d 271 (2006), involved a scheduled injury in which a claimant is not required to

prove that he or she suffers a total incapacity to earn wages. See Kaylor, supra. In Tyson Poultry,

Inc. v. Narvaiz, 2012 Ark. 118, 388 S.W.3d 16, the employer appealed the award of TTD

benefits and argued below and on appeal that the claimant had effectively refused light-duty

work that had been made available to him by getting fired for misconduct. The Commission

there had specifically found that termination for misconduct was not a sufficient basis for a

finding that the employee refused suitable employment under Arkansas Code Annotated

section 11-9-526 (Repl. 2002), which provided that an injured employee who refuses suitable

employment shall not be entitled to compensation during the period of his refusal. The

supreme court affirmed. These are not the facts of this case.

We instead find that the facts of this case are more akin to those in Woodruff, supra.

Woodruff filed a cross-appeal and argued that he was entitled to TTD benefits. The

Commission in Woodruff similarly found that he failed to prove by a preponderance of the

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evidence that he was totally incapacitated from earning wages, and we affirmed. In arriving

at its conclusion, the Commission relied on a therapist’s discharge report stating that

significant improvement had been noted; the fact that Woodruff had begun receiving

unemployment insurance benefits; Woodruff’s own testimony that he believed he could

return to some type of work; and the fact that there was no medical evidence that Woodruff

was totally incapacitated from work. Most of the same factors exist in this case. Accordingly,

on this record, we hold that there was a substantial basis for the Commission’s denial of

TTD benefits and affirm.

Affirmed.

BARRETT and MURPHY, JJ., agree.

Walker Law Group, PLC, by: Eddie H. Walker, Jr., for appellant.

Newkirk & Jones Law Firm, by: David C. Jones, for appellees.

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