Williams v. St. Vincent Infirmary

Cathy WILLIAMS v. ST. VINCENT INFIRMARY

CA 97-30                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & IV
               Opinion delivered November 5, 1997


1.   Workers' compensation -- appellate review -- factors
     considered. -- The appellate court views the evidence and all
     reasonable inferences deducible therefrom in the light most
     favorable to the Commission's findings and will affirm if
     those findings are supported by substantial evidence;
     substantial evidence is such relevant evidence as reasonable
     minds may accept as adequate to support a conclusion. 

2.   Workers' compensation -- Ark. Code Ann.  11-9-522 entitlement
     to permantent partial disability benefits -- employer or its
     insurance carrier bears burden of proving employee's
     employment or employee's bona fide offer of employment. -- The
     employer or its workers' compensation insurance carrier has
     the burden of proving the employee's employment, or the
     employee's receipt of a bona fide offer to be employed, at
     wages equal to or greater than her average weekly wage at the
     time of the accident pursuant to Ark. Code Ann.  11-9-
     522(c)(1); if this burden is met, the employee shall not be
     entitled to permanent partial disability benefits in excess of
     the percentage of permanent physical impairment established by
     a preponderance of the medical testimony and evidence.


3.   Workers' compensation -- review of Commission's decision --
     when it must be affirmed. --  A decision by the Workers'
     Compensation Commission should not be reversed unless it is
     clear that fair-minded persons could not have reached the same
     conclusion if presented with the same facts; it is not the
     province of the court of appeals to substitute its judgment
     concerning matters of credibility for that of the Commission;
     the issue is not whether the appellate court might have
     reached a different result or whether evidence would have
     supported a finding that is contrary to the Commission's
     findings; if reasonable minds could reach the Commissionþs
     conclusion, its decision must be affirmed.

4.   Workers' compensation -- conflicting proof in record --
     Commission's decision affirmed. -- The failure of proof
     alleged by appellant concerning employment or offers of
     employment was immaterial where the Commission reasonably
     found that appellant was not entitled to permanent partial
     disability benefits above the value of the ten-percent
     physical impairment because she failed to prove by a
     preponderance of the credible evidence that she had sustained
     wage-loss disability; where there was conflicting evidence on
     the crucial issue, the Commission weighed the proof, made
     credibility evaluations of the witnesses, and rendered its
     decision; reasonable persons could have reached the same
     conclusion that the Commission reached in denying appellant's
     claim for permanent disability benefits above the anatomical
     impairment she sustained; therefore, the decision was
     affirmed.


     Appeal from Arkansas Workers' Compensation Commission;
affirmed.
     Walker, Campbell & Dunklin, by: Sheila F. Campbell, for
appellant.
     Jack, Lyon & Jones, P.A., by:  John W. Fink, for appellee.

     Wendell L. Griffen, Judge.
     Cathy Williams has appealed the decision by the Workersþ
Compensation Commission that denied her claim for permanent
disability benefits above the anatomical impairment that she
sustained following a July 12, 1990, compensable back injury. 
Appellant contends that the Commission should be reversed because
its decision is not supported by substantial evidence.  We hold
that reasonable minds could have reached the decision that the
Commission reached upon the evidence in the record.  Therefore, we
affirm.
     Appellant was employed as a daycare worker at St. Vincent
Infirmary Medical Center.  Her job involved bending, lifting,
stooping, mopping, sweeping, and other duties related to caring
for, feeding, cooking for, and playing with children.  On July 12,
1990, appellant injured her back while lifting a child.  The
appellee accepted her injury as compensable, paid for her to obtain
medical treatment, and paid temporary total disability benefits
based upon appellantþs compensation rate of $150.21 per week.  The
parties stipulated that appellantþs healing period ended December
5, 1991, when appellee accepted and paid permanent disability
benefits corresponding to a ten-percent permanent physical
impairment rating.  Appellant waived future vocational
rehabilitation, and contended before the Commission that she was
either entitled to permanent and total disability benefits or
additional permanent disability benefits exceeding the value of the
ten-percent impairment rating on account of a decrease in her
capacity to earn wages.  The Commission found that appellant is not
entitled to permanent partial disability benefits above the ten-
percent impairment rating, and that appellant failed to prove by a
preponderance of the credible evidence that she is entitled to
permanent disability benefits due to diminution of her capacity to
earn wages.
     Of course, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the Commissionþs
findings, and we will affirm if those findings are supported by
substantial evidence.  Substantial evidence is such relevant
evidence as reasonable minds may accept as adequate to support a
conclusion.  Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850
(1995).  
     Appellant argues that Ark. Code Ann.  11-9-522(b) (1987)
mandates reversal because the Commission received evidence that she
only had a tenth grade education, lacked vocational training, had
been a homemaker before going to work at St. Vincent Infirmary,
remained under medical care for a substantial time after the
compensable injury, and continued to take prescription pain
medication for the herniated disc that resulted from that injury. 
The record does contain that proof.  However, the Commission also
received evidence showing that appellant presented a variety of
somatic symptoms that were likely to be þvery exaggerated and not
necessarily related to an actual physical condition.þ  Appellantþs
attendance at a work-hardening program was inconsistent, and her
performance while attending work-hardening was reported to be
inconsistent, self-limiting, and characterized by symptom
magnification despite psychological counseling aimed at assuring
her that she would not hurt herself during the retraining process. 
Although the employer introduced evidence that appellant had been
offered a job as a nurse-scheduling clerk after her healing period
ended and that the job was within the restrictions outlined by
appellantþs primary treating physician, appellant testified that
she did not believe herself qualified for the job because she
lacked typing and secretarial skills and felt unable to return to
gainful employment.  
     Arkansas Code Annotated  11-9-522(b) states:
In considering claims for permanent partial disability
benefits in excess of the employeeþs percentage of
permanent physical impairment, the commission may take
into account, in addition to the percentage of permanent
physical impairment, such factors as the employeeþs age,
education, work experience, and other matters reasonably
expected to affect his future earning capacity.  However,
so long as an employee, subsequent to his injury, has
returned to work, has obtained other employment, or has
a bona fide and reasonably obtainable offer to be
employed at wages equal to or greater than his average
weekly wage at the time of the accident, he shall not be
entitled to permanent partial disability benefits in
excess of the percentage of permanent physical impairment
established by a preponderance of the medical testimony
and evidence.

The employer or its workersþ compensation insurance carrier has the
burden of proving the employeeþs employment, or the employeeþs
receipt of a bona fide offer to be employed, at wages equal to or
greater than her average weekly wage at the time of the accident. 
See Ark. Code Ann.  11-9-522(c)(1).  
     Although appellant argues that the employer failed to prove
that she had returned to work, obtained other employment, or
received a bona fide and reasonably obtainable offer to be employed
at wages equal to or greater than her average weekly wage at the
time of the accident through the evidence concerning the nurse-
scheduling clerk position, that factor is not controlling of our
decision.  The issue presented by appellantþs claim was whether she
proved by a preponderance of the evidence that she was entitled to
a finding of permanent and total disability, or whether she was
entitled to permanent disability benefits for diminution of her
wage-earning capacity beyond the value of the ten-percent physical
impairment rating.  If the Commission could have reasonably found
that appellant was not entitled to permanent partial disability
benefits above the value of the ten-percent physical impairment
because she failed to prove by a preponderance of the credible
evidence that she had sustained wage-loss disability, the alleged
failure of proof by appellee would be immaterial.  There was
conflicting evidence on that crucial issue.  The evidentiary
conflict required that the Commission weigh the proof, make
credibility evaluations of the witnesses, and render its decision. 
     It is well settled that a decision by the Workersþ
Compensation Commission should not be reversed unless it is clear
that fair-minded persons could not have reached the same conclusion
if presented with the same facts.  Foxx v. American Transp., 54
Ark. App. 115, 924 S.W.2d 814 (1996).  It is not the province of
the court of appeals to substitute its judgment concerning matters
of credibility for that of the Commission.  Hanson v. Amfuel, 54
Ark. App. 370, 925 S.W.2d 166 (1996).  The issue is not whether we
might have reached a different result or whether evidence would
have supported a finding that is contrary to the Commissionþs
findings; if reasonable minds could reach the Commissionþs
conclusion, we must affirm its decision.  Bradley v. Alumax, supra. 
Based upon the conflicting proof in the record, we are unable to
agree with appellant that reasonable persons could not have reached
the same conclusion that the Commission reached in denying her
claim.  Therefore, we affirm.
     Arey and Crabtree, JJ., agree.
     Rogers, Neal, and Pittman, JJ., dissent.

                Judith Rogers, Judge, dissenting.

     I respectfully disagree with the prevailing opinion's
disposition of this case.  I believe the case should be reversed
and remanded to the Commission to make specific findings of fact
and to consider the medical evidence and the wage-loss factors. 
     The Commission stated that appellant failed to show by a
preponderance of the credible evidence that she was entitled to
wage-loss disability.  The Commission simply concludes that
appellant is capable of returning to gainful employment despite her
testimony and that of her corroborating witnesses.  The prevailing
opinion determines that "[i]f the Commission could have reasonably
found that appellant was not entitled to permanent partial
disability benefits above the value of the ten percent physical
impairment because she failed to prove by a preponderance of the
credible evidence that she had sustained wage-loss disability, the
alleged failure of proof by appellee would be immaterial."  The
prevailing opinion decides that based on the conflicting proof in
the record reasonable minds could have reached the same conclusion
as the Commission.  If the Commission had made findings that the
proof in the record was conflicting and set forth the basis for
those findings, we would not have reached differing opinions in
this case.  However, the Commission failed to make specific
findings of fact to support its conclusion that appellant failed to
prove that she was entitled to wage-loss disability.  
     When determining wage-loss disability benefits, the Commission
is charged with the duty of determining disability based upon a
consideration of medical evidence and other matters affecting wage-
loss, such as the claimant's age, education, and work experience. 
Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).  It is
clear from the Commission's opinion that it did not consider the
wage-loss factors or any of the medical evidence in making its
determination that appellant was not entitled to wage-loss
disability benefits.  
     The Commission also found that appellant had been offered and
rejected suitable employment made available by appellee.  The
prevailing opinion states that that finding is not controlling in
its decision.  Despite the prevailing opinions dismissal of this
point, I believe it would be necessary to address if the case were
being reversed and remanded.
     Arkansas Code Annotated  11-9-522(b)(2) (Repl. 1996)
provides:
          (2)  However, so long as an employee, subse-
          quent to his injury, has returned to work, has
          obtained other employment, or has a bona fide
          and reasonable obtainable offer to be employed
          at wages equal to or greater than his average
          weekly wage at the time of the accident, he
          shall not be entitled to permanent partial
          disability benefits in excess of the percent-
          age of permanent physical impairment estab-
          lished by a preponderance of the medical
          testimony and evidence.  (emphasis added)

     The employer or his workers' compensation insurance carrier
shall have the burden of proving the employee's employment, or the
employee's receipt of a bona fide offer to be employed, at wages
equal to or greater than his average weekly wage at the time of the
accident.  Cross v. Crawford County Memorial Hosp., 54 Ark. App.
130, 923 S.W.2d 886 (1996).  (emphasis added)  The Commission in
making the finding that appellee offered appellant a position that
was approved by her physician, failed to make a finding that the
offer of employment was for wages equal to or greater than
appellant's average weekly wage at the time of her accident.  The
Commission merely noted that appellant was making slightly more
than minimum wage at the time of her injury.  There is no indica-
tion in the Commission's opinion that the position offered to
appellant paid the same or greater wages as her previous position. 
Without this finding, the Commission's decision on that issue would
be inadequate for review.  Thus, I would reverse and remand this
case for the Commission to make specific findings of fact to
support its conclusions.
     Neal and Pittman, JJ., join in this dissent.