Cite as 2022 Ark. App. 187

ARKANSAS COURT OF APPEALS

DIVISION III

No. CV-21-481

JEFFREY JOHNSON

APPELLANT

V.

PECO FOODS, INC.; OCCUSURE 

CLAIMS SERVICES, LLC; AND DEATH 

& PERMANENT TOTAL DISABILITY 

TRUST FUND

APPELLEES

Opinion Delivered April 27, 2022

APPEAL FROM THE ARKANSAS 

WORKERS’ COMPENSATION 

COMMISSION

[NO. G805984]

REVERSED AND REMANDED

PHILLIP T. WHITEAKER, Judge

Appellant Jeffrey Johnson suffered a cardiac injury when he was twenty-nine years 

old. He pursued workers’-compensation benefits, contending that he sustained a 

compensable injury in the course and scope of his employment with appellee Peco Foods, 

Inc. (“Peco”). An administrative law judge (ALJ) determined that his injury was compensable 

and awarded benefits.1 The full Arkansas Workers’ Compensation Commission, however, 

reversed the order of the ALJ. Johnson timely appealed to this court, where he contends that 

 

1The ALJ also determined that the medical treatment Johnson received was 

reasonable, necessary, and related to his compensable injury and that he was entitled to 

temporary total-disability benefits. Because the Commission reversed the ALJ’s initial finding 

that Johnson’s injury was compensable, these issues are not before us in this appeal.
2

the Commission erred in determining that his injury was not compensable. We reverse and 

remand.

I. Background

In May 2018, Johnson began working for Peco, a poultry producer. During his newemployee orientation, a company representative advised him that most employees “would 

come down with a virus” due to working in a poultry-processing environment but that the 

virus “would pass in a week.” 

Johnson was placed in the “Live Hang” department at Peco, where his job duties were 

to grab live chickens by their feet and hang them upside down. He described the working 

conditions in the poultry plant as “horrible.” He explained that there were chicken feces all 

over the floor and all over the workers on the line. Johnson would frequently be “flogged” 

by the chickens with their wings, pecked with their beaks, and scratched with their spurs. 

His only safety equipment consisted of a beard net, a set of gloves, and safety glasses. Johnson 

was repeatedly scratched on his arms, and according to Johnson, “the pee, the poop . . . just 

. . . soaked in through the sores” and cuts and scratches on his arms. 

Soon after starting working at Peco, Johnson began experiencing health 

complications. He developed rashes on his arms, chest, and stomach, which he repeatedly 

reported to the company nurse. She gave him Desitin, a diaper-rash cream, to apply to his 

rash, but the rash did not resolve. Instead, he developed other symptoms, including nausea, 

vomiting, diarrhea, and hot-and-cold temperature swings. He reported these new symptoms 
3

to the nurse as well but was offered no medical treatment other than the diaper-rash cream. 

Johnson’s symptoms did not abate but “just kept getting worse and worse and worse.”

When his symptoms did not improve, Johnson was allowed to move to a different 

department called “Evest.” In this department, the chickens were defeathered and 

decapitated, and Johnson’s duties included pulling the heads off of birds that had not been 

properly decapitated. Once again, the only safety equipment he was given consisted of a 

beard net, safety glasses, and gloves. 

Johnson worked both the Live Hang and Evest departments for several weeks, but his 

symptoms stayed the same.2 He continued to report his medical problems to the nurse, and 

she continued to offer diaper-rash cream as the only treatment. While other workers also 

experienced similar symptoms (rashes, nausea, vomiting, and diarrhea), they got better; 

Johnson did not. Despite the severity of his symptoms, he never went to the emergency room 

or other doctor because his supervisor told him that he would be fired on the spot if he did. 

On July 8, 2018, two months after he started working at Peco, Johnson was found 

unresponsive and cyanotic. He was rushed to the hospital, admitted to intensive care, and 

treated for cardiopulmonary arrest and acute hypoxemic respiratory failure. 

II. Medical Evidence

 

2

Johnson was eventually allowed to move to the “Breading Department,” where he 

separated chicken parts and put the breading mixture into the machine. His symptoms, 

however, still did not improve. 
4

During his hospitalization, Johnson received treatment from Dr. Wilber. Dr. Wilber 

noted that the cause of Johnson’s cardiomyopathy was “unclear at this point.” Dr. Wilber 

did, however, enter progress notes reflecting that Johnson worked at a chicken plant, 

positing, “Acute viral myocarditis? Sounds like he may have a recent viral illness” and 

“possible viral syndrome causing a viral cardiomyopathy.” In a July 14 progress note 

regarding Johnson’s cardiomyopathy, Dr. Wilber stated: “Possibly viral induced. He had a 

viral syndrome prior to coming to the hospital. He may have had an arrhythmia from a viral 

cardiomyopathy.” In addition to Dr. Wilber, Johnson was treated by Dr. Godfrey during his 

hospitalization. Dr. Godfrey discussed with Johnson and his family “the possibility of a viral 

etiology with cardiomyopathy and subsequent cardiopulmonary arrest.” 

After his hospitalization, Johnson was treated by other physicians. Dr. Tedder, a 

cardiologist, noted that while Johnson had a family history of heart disease, Johnson himself 

did not have any prior cardiac history. In the “history of present illness,” Dr. Tedder further 

noted that Johnson “had some type of virus 2 weeks prior to this event, that he contracted 

while at work on a chicken farm” and that “he had a viral type illness with a rash on his arms 

about 2 to 3 weeks prior to the event and could have developed a viral cardiomyopathy.”

Johnson also began seeing Dr. Osborne as his primary-care physician after he was 

released from the hospital. In her assessment following his first visit, Dr. Osborne noted that 

Johnson “had been working in a chicken house and it was believed that he had suffered a 

viral cardiomyopathy.” In both the “Active Problems” and “Past Medical History” portions 

of her office note, Dr. Osborne listed “systemic viral illness.” Although she noted a family 
5

history of congestive heart failure, coronary artery disease, and myocardial infarction, she 

also wrote that Johnson was “thought to have suffered from viral cardiomyopathy from 

working in chicken plant.” In fact, on November 5, 2019, Dr. Osborne wrote a letter in 

which she stated that she treated Johnson after his July 8, 2018 on-the-job injury for “viral 

cardiomyopathy resulting in cardiopulmonary arrest twice.” She further stated, within a 

reasonable degree of medical certainty, that “the viral illness [Johnson] contracted at work 

caused the cascade of medical problems afterwards.”

In response to Dr. Osborne’s opinion, Peco submitted a letter from Dr. Michael 

Gelfand, an infectious-disease and internal-medicine specialist from Memphis. Dr. Gelfand 

stated that he never examined Johnson but had reviewed Johnson’s medical records and his 

deposition. Dr. Gelfand concluded and opined that, among other things, he was unaware of 

any infection likely to be acquired from exposure to chickens that was expected to cause 

cardiomyopathy; in addition, Dr. Gelfand noted that there was no medical evidence of an 

infectious etiology to Johnson’s illness and that no viral studies had been done.

III. Proceedings Before the Commission

Johnson filed a claim for workers’-compensation benefits. Peco contested his claim, 

and the matter proceeded to a hearing before an ALJ. At the hearing, Johnson was the only 

witness to testify regarding the working conditions, his exposure to live chickens, and his 

symptoms resulting from his exposure to live chickens. The ALJ, observing that Peco did not 

call any witnesses to refute Johnson’s testimony, permitted a negative inference to be drawn 

from the absence of such testimony. Thus, the ALJ found Johnson’s testimony to be credible 
6

and undisputed and rejected Peco’s argument that Johnson failed to prove he was infected 

with a virus, citing the medical histories that were replete with references to Johnson’s 

“symptoms of the virus [he] suffered . . . while employed by Peco Foods.” 

Concerning the medical evidence, the ALJ rejected the opinion of Dr. Gelfand. In so 

doing, the ALJ noted that Dr. Gelfand had neither met nor treated Johnson. In addition, 

the ALJ commented that although Dr. Gelfand mentioned that his practice is in infectious 

diseases, a review of the articles and presentations in his CV did not “reveal any specific work 

with patients with exposure to chickens nor does he point to any such experience or to any 

specific medical records to support his conclusions.” 

On the other hand, the ALJ deemed Dr. Osborne’s opinion to be reliable, noting 

that Dr. Osborne had been treating Johnson and coordinating his medical care from July 

2018 to the time of the hearing. Because Johnson showed no signs of cardiac illness prior to 

his employment at Peco and his exposure to live chickens, and given Dr. Osborne’s opinion 

that Johnson suffered a viral illness at work that caused his “cascade of medical problems,” 

the ALJ concluded that the preponderance of the evidence demonstrated a causal 

connection between the work incident and the disabling injury and determined that Johnson 

had proved that he suffered a compensable injury.

Peco appealed to the full Commission, which reversed the opinion of the ALJ. First, 

the Commission found that Johnson had failed to prove that he sustained an injury caused 

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

employment as required by Arkansas Code Annotated section 11-9-102(4)(A)(i) (Repl. 2012). 
7

Second, the Commission 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. See Ark. Code Ann. § 11-9-114(b) (Repl. 2012). 

Next, the Commission found that Johnson had failed to prove causation. Although 

the Commission acknowledged Dr. Osborne’s opinion that Johnson’s cardiac illness was 

caused by a viral infection linked to his exposure to chickens, it rejected her opinion in favor 

of Dr. Gelfand’s conclusion that he was unaware of any viral infection that was likely to be 

acquired from such exposure. The Commission credited Dr. Gelfand’s opinion that 

Johnson’s cardiomyopathy “could not have been caused” by a chicken-related viral infection. 

As such, the Commission concluded that Johnson had failed to prove by a preponderance 

of the evidence that he sustained a compensable heart injury.3Johnson timely appealed the 

Commission’s decision.

IV. Standard of Review

Our standard of review in workers’-compensation cases is well settled. On appeal, this 

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. Univ. of Ark. at Pine Bluff v. 

Hopkins, 2018 Ark. App. 578, 561 S.W.3d 781. Substantial evidence exists if reasonable 

minds could reach the Commission’s conclusion. Id. If reasonable minds could reach the 

 

3The Commission also found that, to the extent Johnson alleged he suffered from an 

occupational disease, he failed to prove by a preponderance of the evidence that his 

employment caused his heart injury as is required under Arkansas Code Annotated section 

11-9-601(E)(1)(B) (Supp. 2021). This finding, however, is not at issue in this appeal.
8

result found by the Commission, then the appellate court must affirm, even when it might 

have reached a different result from the Commission. Id. 

On appeal, we recognize the exclusive province of the Commission regarding the 

credibility of witnesses and the weight to be given to their testimony. Evans v. Bemis Co., Inc., 

2010 Ark. App. 65, 374 S.W.3d 51. 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. Likewise, we recognize the 

Commission’s province to reconcile conflicting evidence and determine the facts. Eldridge v. 

Pace Indus., LLC, 2021 Ark. App. 245, 625 S.W.3d 734. Thus, this court will reverse the 

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

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

Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858.

V. Discussion

As the claimant, Johnson bears the burden of proving a compensable injury. Sheridan 

Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 S.W.3d 280. Under Arkansas law, a “compensable 

injury” is defined as “[a]n accidental injury causing internal or external physical harm to the 

body . . . arising out of and in the course of employment and which requires medical services 

or results in disability or death. An injury is ‘accidental’ only if it is caused by a specific 

incident and is identifiable by time and place of occurrence[.]” Ark. Code Ann. § 11-9-

102(4)(A)(i). A compensable injury must be established by medical evidence supported by 
9

objective findings. Ark. Code Ann. § 11-9-102(4)(D). Johnson must meet his burden of proof 

by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i).

Johnson argues that the Commission erred in finding that he failed to prove that he 

sustained a compensable injury for four reasons: (1) the Commission erred in concluding 

that he did not prove that he sustained an injury caused by a specific incident, identifiable 

by time and place of occurrence, during the course of his employment; (2) the Commission 

incorrectly concluded that he did not prove that some unusual and unpredicted incident 

occurred; (3) the Commission “misrepresented” Dr. Gelfand’s opinion and what is needed 

to prove causation in order to find that Johnson did not prove causation; and (4) he 

sustained a compensable injury. We agree with Johnson’s third argument that the 

Commission misrepresented or misinterpreted Dr. Gelfand’s medical opinion. 

Here, Johnson claimed that he sustained a compensable injury by contracting a viral 

infection at work that led to his cardiac injuries. Without question, Johnson experienced 

cardiac problems. Before the Commission, the fundamental questions were whether 

Johnson was infected with a virus and whether the virus led to his cardiac injuries. On these 

questions, Johnson presented medical evidence from all of his treating physicians indicating 

that they believed there was a viral infection that caused his cardiomyopathy and other heart 

conditions. Dr. Osborne specifically concluded that within a reasonable degree of medical 

certainty, “the viral illness [Johnson] contracted at work caused the cascade of medical 

problems afterwards.”
10

Conversely, Peco presented the opinion of Dr. Gelfand, who specifically stated as 

follows:

My opinions are expressed within a reasonable medical certainty (more likely 

than not).

There is no medical evidence of an infectious etiology of the cardiac illness 

suffered by Mr. Johnson. No viral studies or myocardial biopsy was done by his 

physicians.

I am not aware of any infection likely to be acquired from a contact 

with/exposure to chickens that is expected to cause a cardiomyopathy.

The clinical course of a prolonged illness with nausea, vomiting, diarrhea and 

fever over the period of June 2018 (as described by Mr. Johnson in his deposition), is 

inconsistent with a viral illness.

In summary, I find no evidence that Mr. Johnson’s cardiac illness is related to 

an occupational exposure at Peco Foods.

I base my opinion on my clinical experience and general knowledge and the 

pathophysiology and natural history of infectious diseases, including viral myocarditis 

and infections related to exposure to birds, including chickens.

The Commission chose to accept Dr. Gelfand’s opinion over Dr. Osborne’s opinion, 

a matter that is within its province to resolve. See, e.g., Griffith v. Medcath, Inc., 2009 Ark. 

App. 777, at 4 (“The Commission has the duty to weigh . . . competing opinions and translate 

the medical evidence into findings of fact.”). We acknowledge the general rule that the 

Commission is not required to believe the testimony of any witness and may accept and 

translate into findings of fact only those portions of testimony it deems worthy of belief. 

Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission, 

however, has a duty to make a proper de novo review of the record. Id. at 529, 990 S.W.2d 
11

at 529. In its de novo review, if the Commission errs when it translates the evidence, and 

that error is expressly relied upon in reaching its decision, the reviewing court “is left to 

speculate concerning what evidence the Commission intended to rely on when making its 

decision.” Id. at 529, 990 S.W.2d at 529; see also Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 

29 S.W.3d 706 (2000); Meister v. Safety Kleen, 339 Ark. 91, 3 S.W.3d 320 (1999). In such 

circumstances, the Commission’s erroneous factual findings require reversal. See Tucker, 

supra.

We conclude that the Commission erred in its translation of Dr. Gelfand’s opinion. 

In finding that Johnson failed to prove he sustained a compensable injury, the Commission 

wrote as follows:

[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 of Dr. Gelfand that [Johnson’s] cardiomyopathy could not have been caused 

by a viral infection likely to be acquired from exposure to chickens.

(Emphasis added.) 

Here, the Commission made a factual finding that it was impossible for Johnson’s 

cardiac illness to have been caused by a poultry-related virus based on the opinion of Dr. 

Gelfand. Dr. Gelfand did not, however, offer such opinion. Instead, he said he was unaware 

of such a virus and that Johnson’s long-duration symptoms were not consistent with a virus. 

Thus, the Commission misconstrued what he actually said, and its conclusion is based on a 
12

misstatement. 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.

Reversed and remanded.

VIRDEN and MURPHY, JJ., agree.

Laura Beth York, for appellant.

Gill Ragon Owen, P.A., by: Jason A. Lee, for separate appellee Peco Foods, Inc.