Peco Foods, Inc. Occusure Claims Services, LLC And Death and Permanent Total Disability Trust Fund v. Jeffrey Johnson

Cite as 2024 Ark. App. 237
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-23-133

PECO FOODS, INC.; OCCUSURE Opinion Delivered April 10, 2024
CLAIMS SERVICES, LLC; AND DEATH
AND PERMANENT TOTAL APPEAL FROM THE ARKANSAS
DISABILITY TRUST FUND WORKERS’ COMPENSATION
APPELLANTS COMMISSION
[NO. G805984]

V.

JEFFREY JOHNSON
APPELLEE DISMISSED IN PART; AFFIRMED

BART F. VIRDEN, Judge

Appellant Peco Foods, Inc., appeals from the Arkansas Workers’ Compensation

Commission’s opinion and order affirming as modified the administrative law judge’s (ALJ’s)

decision finding that appellee Jeffrey Johnson sustained a compensable injury in the form of

an occupational disease. Peco argues that the Commission exceeded its authority on remand

by analyzing the case under the occupational-disease statute contrary to our mandate in

Johnson v. Peco Foods, Inc., 2022 Ark. App. 187. We dismiss the appeal, in part, as it relates to

Peco’s petition for review by the Commission, and we affirm as to the merits.

To briefly summarize the facts, Peco is a poultry-processing plant. Johnson began

working there in late May 2018. Soon after he had started the job—which involved hanging

live chickens by their feet as they scratched and pecked him—he developed a rash. The rash
did not resolve, and he began experiencing nausea, vomiting, and diarrhea. On July 8, while

on holiday with his fiancée, Johnson was found unresponsive. He was admitted to Baxter

Regional Medical Center where he remained until July 16 when he was discharged with

diagnoses of cardiopulmonary arrest; anoxic encephalopathy; nonischemic cardiomyopathy;

acute renal failure; and lactic acidosis. The rest of the facts, along with the medical evidence,

are set forth in the earlier appeal; thus, there is no need to repeat it here. What follows is the

procedural history of this case.

Johnson filed a workers’-compensation claim for benefits, alleging that he had

sustained a compensable injury related to his job. Peco controverted the claim, so a hearing

was held. Johnson relied on an opinion by Dr. Rebecca Osborne, his primary-care physician,

who stated that he had contracted a viral illness at work that led to “a cascade of medical

problems.” Peco claimed that there was no medical evidence that Johnson had contracted a

virus that both caused his injuries or illness and resulted from his job processing chickens.

Peco presented a report by Dr. Michael Gelfand, an infectious-disease expert and internal-

medicine specialist, who said that he was unaware of any infection likely acquired from

exposure to chickens that was expected to cause cardiomyopathy. In December 2020, the

ALJ determined that Johnson had suffered a compensable heart injury and awarded him

medical treatment and temporary total-disability (TTD) benefits. Peco appealed to the

Commission.

On June 14, 2021, the Commission reversed the ALJ. The Commission found that

Johnson had failed to prove that he suffered a compensable injury caused by a specific

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incident, identifiable by time and place of occurrence, during the course of his employment

pursuant to Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). The Commission also

determined that Johnson had failed to prove that his heart injury was caused by “some

unusual and unpredicted incident” that was the major cause of the physical harm pursuant

to Ark. Code Ann. § 11-9-114(b) (Repl. 2012). Referring to the opinions of Dr. Osborne

and Dr. Gelfand, the Commission concluded that Dr. Gelfand’s opinion was entitled to

greater weight and concluded that Johnson had failed to prove causation. Further, the

Commission found that, to the extent that Johnson argued he had suffered from a

compensable occupational disease pursuant to Ark. Code Ann. § 11-9-601(e)(1)(A) (Repl.

2012), he had failed to prove causation under section 11-9-601(e)(1)(B).

Johnson appealed to this court, arguing that the Commission had erred in denying

his claim for four reasons: (1) the Commission erred in concluding that he did not prove a

specific-incident injury; (2) the Commission erred in finding that he failed to prove that

some unusual and unpredicted incident occurred; (3) the Commission “misrepresented” Dr.

Gelfand’s opinion and what is necessary to prove causation and in concluding that he did

not prove causation; and (4) he did sustain a compensable injury. We stated in a footnote in

the opinion that whether Johnson suffered from an occupational disease was “not at issue”—

Johnson did not argue that the Commission had erred in that respect.

In our decision handed down on April 27, 2022, we found merit in Johnson’s

argument that the Commission had “misrepresented” Dr. Gelfand’s opinion. The

Commission had found the following:

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[Dr. Osborne’s opinion is] not conclusive because as Dr. Gelfand—an expert on this
topic—pointed out, neither Dr. Osborne nor any other of [Johnson’s] treating
physicians performed any viral studies or myocardial biopsies necessary to reach such
a conclusion. In fact, according to Dr. Gelfand, he is not aware of any viral infection
that is likely to be acquired from exposure to chickens that would cause [Johnson’s]
cardiomyopathy. In other words, not only did [Johnson] fail to prove causation, but
according to Dr. [Gelfand,] it is not even possible. The Full Commission credits the expert
[opinion] of Dr. Gelfand that [Johnson’s] cardiomyopathy could not have been caused
by a viral infection likely to be acquired from exposure to chickens.

Johnson, 2022 Ark. App. 187, at 11 (alteration in original) (emphasis added). We held that

the Commission’s factual finding that it was impossible for Johnson’s cardiac injury to have

been caused by a poultry-related virus was a misstatement of Dr. Gelfand’s opinion. We said,

“Because the Commission erroneously translated the medical evidence concerning the cause

of Johnson’s illness, we must reverse and remand for the Commission to reexamine the

evidence.”

On remand, the Commission affirmed as modified the ALJ’s decision in its opinion

and order dated October 26, 2022. The Commission found that Johnson had proved that

he suffered from a compensable occupational disease and was entitled to reasonably

necessary medical treatment and TTD benefits. The Commission stated that, whereas the

ALJ had adjudicated the matter under Ark. Code Ann. § 11-9-114, which governs heart or

lung injuries, the applicable statute was Ark. Code Ann. § 11-9-601, which governs

occupational disease. Upon reexamining the evidence, the Commission concluded that Dr.

Osborne’s opinion was corroborated by the record and entitled to significant evidentiary

weight and that Dr. Gelfand’s opinion was not corroborated by the medical evidence in the

record.

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On November 8, 2022, Peco filed a timely notice of appeal from the Commission’s

October 26 opinion. Peco also filed on November 8 a petition for review or reconsideration

with the Commission, claiming that the Commission had acted sua sponte and exceeded

the scope of our mandate. On November 30, the Commission denied Peco’s petition for

review, stating that we had not directed it to adjudicate the claim in accordance with any

particular statute and that the Commission had been presented with a stipulated issue of

“compensability.”

On February 21, 2023, the Commission submitted the record to the clerk of this

court for filing, but on February 27, the clerk rejected the submission as untimely. 1 Peco

then filed a motion for rule on the clerk requesting that this court order the clerk to accept

and lodge the record. The issue presented by Peco’s motion for rule on the clerk was whether

Ark. R. App. P.–Civ. 4(b)(1) extends the time for filing the notice of appeal in a workers’-

compensation case when the appellant has filed a timely “posttrial” motion.

Arkansas Rule of Appellate Procedure–Civil 4(a) provides that, “[e]xcept as otherwise

provided in subdivisions (b) and (c) of this rule, a notice of appeal shall be filed within thirty

(30) days from the entry of the judgment, decree or order appealed from.” With respect to

certain posttrial motions, Rule 4(b) provides the following:

(1) Upon timely filing in the circuit court of a motion for judgment
notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil
Procedure, a motion to amend the court’s findings of fact or to make additional
findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other

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The record on appeal must be filed within ninety days from the filing of the first
notice of appeal, unless the time is extended. Ark. R. App. P.–Civ. 5(a).

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motion to vacate, alter, or amend the judgment made no later than 10 days after entry
of judgment, the time for filing a notice of appeal shall be extended for all parties.
The notice of appeal shall be filed within thirty (30) days from entry of the order
disposing of the last motion outstanding. However, if the circuit court neither grants
nor denies the motion within thirty (30) days of its filing, the motion shall be deemed
denied by operation of law as of the thirtieth day, and the notice of appeal shall be
filed within thirty (30) days from that date.

(2) A notice of appeal filed before disposition of any of the motions listed in
paragraph (1) of this subdivision shall be treated as filed on the day after the entry of
an order disposing of the last motion outstanding or the day after the motion is
deemed denied by operation of law. Such a notice is effective to appeal the underlying
judgment, decree, or order. A party who also seeks to appeal from the grant or denial
of the motion shall within thirty (30) days amend the previously filed notice,
complying with Rule 3(e). No additional fees will be required for filing an amended
notice of appeal.

In a per curiam dated April 12, 2023, we held, as a matter of first impression, that

Ark. R. App. P.–Civ. 4(b)(1)–(2) does apply to appeals from decisions of the Arkansas

Workers’ Compensation Commission. Peco Foods, Inc. v. Johnson, 2023 Ark. App. 223, 666

S.W.3d 121. We further held that we would treat Peco’s notice of appeal from the

Commission’s October 26, 2022 opinion as having been filed on the day after the

Commission denied Peco’s petition for review and that, therefore, the record was timely filed

under Ark. R. App. P.–Civ. 5. Thus, we granted Peco’s motion for rule on the clerk and held

that we had jurisdiction to hear the appeal.

The appeal is back before us with Peco arguing that the Commission exceeded our

mandate, that the Commission could not change its findings of fact on remand, and that

the prior appeal is both law of the case and res judicata. Peco, however, did not amend its

notice of appeal to include the Commission’s denial of its petition for review. A notice of

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appeal must designate the judgment, decree, order or part thereof from which the appeal is

taken. Ark. R. App. P.–Civ. 3(e)(ii). Peco’s only notice of appeal states that it is appealing

from the Commission’s opinion dated October 26, 2022, and that its sole point on appeal

is that the Commission’s finding that Johnson proved that he suffered from an occupational

disease is not supported by substantial evidence.

We have already determined that Ark. R. App. P.–Civ. 4(b)(1)–(2) applies in workers’-

compensation cases. Peco, supra. It stands to reason that all of Rule 4(b)(2) applies. The rule

provides, in relevant part, that “[a] party who also seeks to appeal from the grant or denial of

the [posttrial] motion shall within thirty (30) days amend the previously filed notice.” Ark.

R. App. P.–Civ. 4(b)(2). Because Peco did not amend its notice of appeal to include the

denial of its posttrial motion—the petition for review—we do not have jurisdiction to address

Peco’s arguments related to the Commission’s denial of its petition. We will, however,

answer the question of whether the Commission exceeded our mandate because a mandate

involves the Commission’s jurisdiction.

A mandate is the official notice of the appellate court’s action, directed to the court

below, advising that court of the action taken by the appellate court and directing the lower

court to duly recognize, obey, and execute the appellate court’s judgment. Jackson v. Smiley

Sawmill, LLC, 2021 Ark. App. 433, 638 S.W.3d 11. An inferior court must give deference to

an appellate court’s mandate, implementing both the letter and spirit of the mandate, and

has no power or authority to deviate from the mandate issued by an appellate court. Id. The

question of whether the lower court followed the mandate is not simply one of whether the

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lower court was correct in its construction of the case but also involves a question of the

lower court’s jurisdiction. Turner v. Nw. Ark. Neurosurgery Clinic, P.A., 91 Ark. App. 290, 210

S.W.3d 126 (2005). The lower court is vested with jurisdiction only to the extent conferred

by the appellate court’s opinion and mandate. Id. Any proceedings on remand that are

contrary to the directions contained in the mandate from the appellate court may be

considered null and void. Id.

We cannot say that the Commission exceeded our mandate, which was to “reexamine

the evidence.” Dr. Gelfand offered an opinion on causation, which is an element common

to all of Johnson’s theories of recovery. The Commission, upon reexamining the medical

evidence on causation, determined that Dr. Gelfand’s opinion was not entitled to the weight

that the Commission had initially assigned to it and that Dr. Osborne’s opinion was, in

retrospect, supported by the medical evidence. See Westwood Health & Rehab., Inc. v. Diddle,

2010 Ark. App. 774, at 4 (affirming the Commission’s decision, after previously reversing

and remanding on the basis that the Commission had relied on a misstatement as to the

contents of a medical record, and holding that the Commission had executed this court’s

mandate “to conduct a proper de novo review of the record” even though the Commission

credited testimony that it had previously found was not credible).

Peco’s notice of appeal provides that its intention was to argue that the Commission’s

October 26 decision is not supported by substantial evidence. Moreover, Peco’s opening

brief mentions “substantial evidence” in the table of contents, the points on appeal, the

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argument’s heading, and a preliminary paragraph on the applicable standard of review;2

however, Peco does not specifically argue sufficiency of the evidence until its reply brief. We

do not consider arguments that are first raised in a reply brief because the appellee would

have no opportunity for rebuttal. Bean v. Reynolds Consumer Prods., 2022 Ark. App. 276, at

17 n.3, 646 S.W.3d 655, 665 n.3; Hope Sch. Dist. v. Wilson, 2011 Ark. App. 219, 382 S.W.3d

782; Helena/W. Helena Schs. v. Hislip, 78 Ark. App. 109, 79 S.W.3d 404 (2002). We therefore

affirm the Commission’s opinion and order without addressing the merits.

Dismissed in part; affirmed.

KLAPPENBACH and WOOD, JJ., concur.

WENDY SCHOLTENS WOOD, Judge, concurring. In my view, Arkansas Rule of

Appellate Procedure–Civil 4(b), which extends the time to file a notice of appeal, does not

apply to Arkansas Workers’ Compensation cases, and this appeal should have been

dismissed as untimely. See Peco Foods, Inc. v. Johnson, 2023 Ark. App. 223, 666 S.W.3d 121

(Wood, J. dissenting). However, the decision of this court’s majority in that case was to the

contrary. On the merits of the appeal in this case, I agree with the disposition. Thus, I

concur.

Klappenbach, J., joins.

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A mere conclusory statement in, for example, a point for appeal or an argument
heading, constitutes a waiver of the question if not argued, and the issue will not be
addressed on appeal. See Estacuy v. State, 94 Ark. App. 183, 228 S.W.3d 567 (2006) (citing
Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Brockwell v. State, 260 Ark. 807, 545
S.W.2d 60 (1976); Camp v. State, 66 Ark. App. 134, 135–36 n.1, 991 S.W.2d 611, 613 n.1
(1999)).

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Gill Ragon Owen, P.A., by: Jason A. Lee, for appellants.

Laura Beth York, for appellee.

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