Lisa Sowell v. Evergreen Packaging, LLC; Ace American Insurance Company; And Gallagher Bassett Services, Inc.

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Cite as
2025 Ark. App. 424
ARKANSAS COURT OF APPEALS
                                       DIVISION III
                                       No. CV-23-498



 LISA SOWELL                                    Opinion Delivered September 10, 2025
                               APPELLANT


 V.                                             APPEAL FROM THE ARKANSAS
                                                WORKERS’ COMPENSATION
                                                COMMISSON
 EVERGREEN PACKAGING, LLC; ACE
                                                [NO. G804085]
 AMERICAN INSURANCE COMPANY;
 AND GALLAGHER BASSETT
 SERVICES, INC.
                     APPELLEES
                                                AFFIRMED


                            WAYMOND M. BROWN, Judge

       Appellant Lisa Sowell appeals from the Arkansas Workers’ Compensation

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

law judge’s (ALJ’s) decision. Specifically, the Commission found that the Arkansas Workers’

Compensation Act (AWCA) is constitutional and applicable; that the functional capacity

evaluation (FCE) was relevant and admissible; that appellant failed to prove that additional

medical treatment was reasonably necessary but that she had proved she was entitled to

another change of physician if she so desired; and that appellant was not credible and failed

to prove that she is permanently and totally disabled. Appellant argues on appeal that (1)

she was denied due process and equal protection under the Fourteenth Amendment due to
the relationship of her treating physician, Victor Vargas, to appellee Evergreen Packaging

and because1 of the workers’-compensation rules of evidence; (2) the FCE is completely

subjective and not admissible in any court; (3) Arkansas Code Annotated section 11-9-

705(a),2 which allows subjective evidence, conflicts with Arkansas Code Annotated section

11-9-102,3 which requires objective evidence to establish a medical workers’-compensation

injury; and (4) appellant tried to preserve her employment by requesting an accommodation.

We affirm.4

       Appellant suffered a compensable lower back injury on May 31, 2018, while working

as a service operator for appellee Evergreen. On the date in question, appellant fell down

three stairs while returning to her office and was knocked unconscious. She was initially

seen at the emergency room at Jefferson Regional Medical Center (JRMC) with complaints

of bilateral hand pain, right knee pain, and lower back pain. She was diagnosed with

contusions of both hands, a knee contusion, and a lumbar strain. Appellant’s primary

physician, Dr. Tim Wilkins, ordered an MRI of appellant’s lumbar spine. The MRI, taken

on June 15, showed “[l]eft neural foraminal zone disc protrusions at L3-L4 and L4-L5 without



       1
           “Because” was added to try and make the argument easier to follow.
       2
           (Supp. 2023).
       3
           (Supp. 2023).
       4
        This is the second time this case has been before us. We initially ordered rebriefing
due to deficiencies in appellant’s brief. See Sowell v. Evergreen Packaging, LLC,
2024 Ark. App.
498
.

                                               2
neural foraminal narrowing.” On July 2, appellant went to JRMC with complaints of mid

and lower back spasms and right-side neck pain. She was seen at JRMC on July 6 with

complaints of low back pain that was shooting down her left leg. In a follow-up, Dr. Wilkins

diagnosed appellant with cervical pain, prolapse of lumbar intervertebral disc without

radiculopathy, and low back pain. He opined that there was no way to connect appellant’s

neck pain to her fall. Appellant was ordered to follow up with Dr. Victor Vargas.

       Dr. Vargas evaluated appellant on July 9. He placed her on light duty, with no lifting

or pushing more than five pounds, and no bending over.                Physical therapy was

recommended. Dr. Vargas noted on August 6 that appellant was not improving, “despite

treatment with physical therapy and medications.” He stated that he informed appellant

that her MRI report showed “no objective findings of injury to the lumbar spine. The MRI

showed degenerative disc disease and facet arthropathy.” He ordered an electromyography

and nerve conduction study on appellant’s left lower extremity.5 He noted that if appellant

“has no improvement with the physical therapy[6] and the electromyography showed no

evidence of acute injury to the nervous structures[, appellant] most certainly will reach

maximum medical improvement [MMI].” Appellant was to continue light-duty work with

the same restrictions. The study on appellant’s lower extremities was performed on August


       5
           He recommended that appellant work on losing weight.
       6
       Appellant’s therapist had noted that appellant’s complaints were inconsistent with
her injury and that appellant was probably suffering from multiple level degenerative
changes.


                                             3
23 and showed no “electrodiagnostic evidence of a lumbar radiculopathy, peripheral

neuropathy, or focal tibial or peroneal nerve entrapment,” and appellant’s L2-3 muscles

“were screened and were normal due to thigh complaints, no focal internal femoral

cutaneous sensory loss was seen on physical exam.” Appellant was seen by Dr. Vargas on

September 6. Dr. Vargas reviewed the MRI again and noted that there was no evidence of

nerve root impingement at any level that explained appellant’s symptomatology of numbness

in her thighs. He stated that it was unclear why appellant was not responding to conservative

management. He recommended an injection at the facet of L4-L5 bilaterally. He continued

appellant on light-duty work with the same restrictions. Appellant received an injection on

September 18.

       Appellant followed up with Dr. Vargas on October 4. Dr. Vargas noted that appellant

had been “treated for 4 months with different modalities for the low back pain without

specific objective finding of injury to the lumbar spine.” He stated that at this point, he

believed appellant had “exhausted the conservative treatment for her lower back pain and

[appellant] has reached [MMI].” He noted that appellant would be returned to work full

duty. However, he said that since appellant stated she was unable to work, he was ordering

an FCE for objective findings. He opined that appellant was entitled to a “0% permanent

impairment in regards to her lower back pain.” Appellant underwent the FCE on October

15. The FCE reported unreliable results in that appellant put forth unreliable effort with

inconsistencies found on fourteen out of fifty measurements. It was found that appellant

could perform work in at least the sedentary classification. The FCE noted that since


                                             4
appellant’s efforts were unreliable, her actual abilities could be higher than what was

demonstrated during the evaluation. Dr. Vargas released appellant to full duty without

restrictions on October 22.

       Appellant sought and was granted a change of physician in June 2019. Dr. Noojan

Kazemi was to be appellant’s new physician.       Dr. Kazemi canceled appellant’s initial

appointment because Evergreen would not pay for a new MRI as part of the first-time visit.

Appellant subsequently received a Social Security MRI of her cervical and lumbar spine on

September 18. The lumbar spine showed no compression fractures and mild degenerative

disc disease at L3-4 and L4-5 with no evidence of spinal canal or neural foraminal narrowing

at any level. The cervical spine showed no acute posttraumatic abnormalities and multilevel

degenerative changes in the mid to lower cervical spine. Appellant was involved in a motor

vehicle accident on November 11 and presented to JRMC with complaints of neck and back

pain following the accident. An MRI of her lumbar spine was unremarkable.7

       Appellant filed a claim with the administrative law judge (ALJ), claiming that she is

permanently and totally disabled because of her May 31, 2018 compensable injury. She also

contended that the AWCA is unconstitutional because it denied her due process and equal

protection under the Fourteenth Amendment and that she was entitled to additional

medical treatment. Appellant’s attorney objected to the introduction of the FCE at the

December 1, 2022 hearing, contending that it was inadmissible because it was not objective


       7
        Appellant was approved for Social Security Income benefits in March 2022 on the
basis that she is disabled.

                                             5
evidence. The ALJ found that the AWCA is constitutional and applicable; that appellant

failed to show that she is permanently and totally disabled; and that appellant failed to show

that she was entitled to additional medical treatment—specifically, an additional MRI and

physical therapy.

       Appellant appealed the ALJ’s decision to the Commission. The Commission found

that the AWCA is constitutional and applicable; that the FCE was relevant and admissible;

that appellant failed to prove that additional medical treatment was reasonably necessary but

that she had proved she was entitled to another change of physician if she so desired; and

that appellant was not credible and failed to prove that she is permanently and totally

disabled. Appellant timely appealed this decision.

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

affirm when the decision is supported by substantial evidence. 8 Substantial evidence is

evidence that a reasonable mind might accept as adequate to support a conclusion. 9 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.10 It is the Commission’s duty to make




       8
           Johnson v. Land O’Frost, Inc.,
2025 Ark. App. 41
,
704 S.W.3d 671
.

       9
Id.
10
Id.
6
determinations of credibility and to weigh the evidence.11 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. 12

       The employer shall promptly provide for an injured employee such medical treatment

as may be reasonably necessary in connection with the injury received by the employee. 13

Reasonably necessary medical treatment may include that which is necessary to accurately

diagnose the nature and extent of a compensable injury, to reduce or alleviate symptoms

resulting from a compensable injury, to maintain the level of healing achieved, or to prevent

further deterioration from the damage produced by the compensable injury. 14 The employee

has the burden of proving by a preponderance of the evidence that medical treatment is

reasonable and necessary.15

       Appellant argues on her first point on appeal that she was denied due process and

equal protection under the Fourteenth Amendment due to the relationship of her treating

physician, Dr. Vargas, to appellee Evergreen Packaging and because of the workers’-




       11
Id.
12
Id.
13
Ark. Code Ann. § 11-9-508
(a)(1) (Supp. 2023).

       14
            Wright Steel & Mach., Inc. v. Heimer,
2017 Ark. App. 643
,
535 S.W.3d 311
.

       15
Id.
7
compensation rules of evidence. Arkansas Code Annotated section 11-9-514(3)(A)(i)16 states

that an “employer shall have the right to select the initial primary care physician from among

those associated with managed care entities certified by the commission as provided in § 11-

9-508.”      According to appellant, since Dr. Vargas was a part of Evergreen’s certified

management care organization, there was some sort of unspoken loyalty he owed to

Evergreen, which violated her due-process and equal-protection rights. Appellant contends

that this loyalty led to Dr. Vargas’s decision to return her to full duty without restrictions

after initially placing her on light duty with restrictions. However, appellant has failed to

point to any facts to support this contention. In fact, the opposite seems to be true: Dr.

Vargas testified in his deposition that “workers[’] comp companies sent patients to our

company in OrthoArkansas to be evaluated . . . , but that doesn’t mean that we’re part of

any of their associations. We are independent, a medical institution, a medical facility. We

see patients for what they refer to us.” He denied having any contract with Evergreen. Dr.

Vargas also stated that although appellant complained of back pain, he could not find any

specific injury her complaints. He said that the MRI performed on appellant before she was

seen by him did not show injury, only spinal degeneration. He testified that he gave

appellant a 0 percent impairment rating because he could find no objective evidence of an

injury resulting from her fall at work.




       16
            (Supp. 2023).

                                              8
       Regarding the AWCA, Act 796 of 1993, it is well-settled Arkansas law that a statute

is presumed to be constitutional and will be struck down only when there is a clear

incompatibility between the statute and the state constitution. 17 Appellant bears the burden

of establishing a violation of her due-process rights.18 Administrative agencies, which like

the Commission are quasi-judicial, do not, in and of themselves, violate due process.19

Appellant has failed to present convincing evidence that the AWCA is unconstitutional or

that her due-process rights were violated. Accordingly, we affirm.

       Appellant argues next that the FCE is completely subjective and not admissible in any

court. She contends that the FCE did not meet the Daubert 20 standard and should not have

been admitted during the hearing. Appellant further argues that the admission of the FCE

denied her due process and equal protection. In conducting a hearing, the Commission

shall not be bound by technical or statutory rules of evidence or by technical or formal rules


       17
            Long v. Wal-Mart Stores, Inc.,
98 Ark. App. 70
,
250 S.W.3d 263
(2007).

       18
Id.
19
Id.
20
         In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579
(1993), the United
States Supreme Court held that a trial court must make a preliminary assessment of whether
the reasoning or methodology underlying expert testimony is valid and whether the
reasoning or methodology has been properly applied to the facts of the case. Richardson v.
Union Pac. R.R. Co.,
2011 Ark. App. 562
,
386 S.W.3d 77
. The objective of a Daubert inquiry
is to ensure the relevance and reliability of expert testimony and to make certain that the
expert, whether basing testimony on professional studies or personal experience, employs in
the courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field. Bayer CropScience LP v. Schafer,
2011 Ark. 518
,
385 S.W.3d 822
.


                                                9
of procedure but may conduct the hearing in a manner as will best ascertain the rights of the

party.21 Appellant argues that the FCE was subjective and thus unreliable. She maintains

that because the FCE is subjective, it should not have been admitted into evidence. The

Commission is empowered to allow into the record whatever evidence it sees fit.22 Appellant

offers no convincing argument that the Commission erred by admitting the FCE into

evidence or that by doing so, it deprived her of due process and equal protection.

       As her third point, appellant argues that Arkansas Code Annotated section 11-9-

705(a), which allows subjective evidence, conflicts with Arkansas Code Annotated section

11-9-102, which requires objective evidence to establish a medical workers’-compensation

injury. However, we do not address this argument because appellant failed to put forth

anything but case law in her brief on this point. She did not raise an argument until her

reply brief. An argument raised for the first time on reply comes too late.23

       Finally, appellant argues that she tried to preserve her employment by requesting an

accommodation. The Commission found that appellant was not a credible witness with

regard to her returning to appropriate gainful employment and found that she did not

attempt to return to work with Evergreen or any other employer once she was released to

full duty. It further found that appellant’s demonstrated lack of interest in returning to work



       21
Ark. Code Ann. § 11-9-705
(a)(1) (Supp. 2023).

       22
            Stoker v. Thomas Randal Fowler, Inc.,
2017 Ark. App. 594
,
533 S.W.3d 596
.

       23
            Coleman v. Regions Bank,
364 Ark. 59
,
216 S.W.3d 569
(2005).

                                               10
is an impediment to a full assessment of her contention that she is permanently and totally

disabled. She points to her testimony that she unsuccessfully sought an accommodation

with Evergreen. She also states that Evergreen accommodated another injured employee,

but not her. It must be noted that appellant did not appeal the Commission’s finding that

she was not permanently and totally disabled; therefore, even if she unsuccessfully sought

accommodation from Evergreen when she was placed on light duty, that had no bearing on

her failure to return to work once the restrictions were lifted. This failure negatively affected

her request to be found permanently and totally disabled.

       Affirmed.

       VIRDEN and TUCKER, JJ., agree.

       Larry J. Steele, PLC, by: Larry J. Steele, for appellant.

       Frye Law Firm, P.A., by: William C. Frye, for appellant.




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