Bio-Tech Pharmacal, Inc. v. Blouin
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Cite as 2010 Ark. App. 714
ARKANSAS COURT OF APPEALS
DIVISION II
CA09-1202
No.
BIO-TECH PHARMACAL, INC.
APPELLANT
V.
EDMOND BLOUIN
APPELLEE
Opinion Delivered
October 27, 2010
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[F603454]
AFFIRMED ON DIRECT APPEAL;
AFFIRMED ON CROSS-APPEAL
RAYMOND R. ABRAMSON, Judge
Edmond Blouin worked for Bio-Tech Pharmacal, Inc. for about five years in various
capacities. During his tenure at Bio-Tech, Blouin suffered a work-related injury in early
November 2004. Blouin was underneath his desk trying to dismantle it so that he could move
it to his new office, when the two pieces of his desk and a bookshelf sitting on top of the desk
collapsed on top of him. As a result of the accident, Blouin had pain in his back, legs, neck,
and knees. He received treatment for his injuries from several sources.
AIG, Bio-Tech’s purported workers’ compensation insurer, initially accepted the
injury as compensable and paid benefits to Blouin. The Administrative Law Judge held a
prehearing conference in June 2007 to which Blouin, Bio-Tech, and AIG were parties. At
the hearing, AIG contended that it was not responsible for any additional compensation
benefits because Bio-Tech’s insurance had been cancelled before Blouin’s injury. The
Cite as 2010 Ark. App. 714
resulting prehearing order stated that the parties had stipulated that Blouin sustained a
compensable injury. The ALJ held a hearing on the coverage issue in December 2007 and
entered an order in January 2008 finding that AIG had properly cancelled Bio-Tech’s
insurance and that Bio-Tech was therefore liable for Blouin’s injuries. This order also
repeated the earlier stipulation about compensability and further stated that the prehearing
stipulations contained in the June 2007 order were accepted as fact.
At the October 2008 hearing, the parties, by agreement, litigated two issues: 1)
Blouin’s entitlement to permanent-partial-disability benefits, including wage-loss-disability
benefits; and 2) Blouin’s entitlement to attorney’s fees. The ALJ subsequently filed an opinion
awarding Blouin permanent-partial-disability benefits in the amount of 10% to the body as
a whole—7% permanent-impairment rating and 3% wage-loss. Blouin appealed and BioTech cross-appealed to the Commission. The Commission, however, affirmed and adopted
the ALJ’s decision. The Commission also addressed, in its August 2009 opinion and order,
Bio-Tech’s argument that a certain provision of the Workers’ Compensation Act violated
Bio-Tech’s Seventh Amendment right to a jury trial. The Commission found Bio-Tech’s
constitutional argument unpersuasive. Bio-Tech appeals and Blouin cross-appeals.
Standard of Review
In deciding whether substantial evidence supports the Commission’s decision, this
Court views the evidence (and the inferences deducible therefrom) in the light most favorable
to the Commission’s findings. Walker v. Cooper Auto., 104 Ark. App. 175, 176, 289 S.W.3d
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184, 186 (2008). We affirm if reasonable minds could reach the Commission’s conclusion,
always remembering that weighing the evidence and making credibility determinations are
within the Commission’s province, not ours. Walker, 104 Ark. App. at 176–77, 289 S.W.3d
at 186. When the Commission, as it did here, affirms and adopts the ALJ’s opinion, we
consider both the ALJ’s decision and the Commission’s majority opinion. Fayetteville Sch. Dist.
v. Kunzelman, 93 Ark. App. 160, 162, 217 S.W.3d 149, 151 (2005). We review questions of
law, however, de novo. Nestle, USA, Inc. v. Drone, 2009 Ark. App. 311, at 3, 307 S.W.3d 54,
56.
Constitutional Challenges
In its appeal to the Commission, Bio-Tech argued that Arkansas Code Annotated
section 11-9-105(b)(1) violates its right to a jury trial under the Seventh Amendment to the
United States Constitution. This code section reads as follows:
[I]f an employer fails to secure the payment of compensation as required by this
chapter, an injured employee, or his or her legal representative in case death
results from the injury, may, at his option, elect to claim compensation under
this chapter or to maintain a legal action in court for damages on account of the
injury or death.
Ark. Code Ann. § 11-9-105(b)(1) (Repl. 2002). The Commission, however, found BioTech’s Seventh Amendment argument without merit.
On appeal, Bio-Tech has expanded its constitutional argument to include challenges
under the Fifth and Fourteenth Amendments to the United States Constitution. These
arguments, under the Due Process and Equal Protection Clauses, are not preserved for our
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review because Bio-Tech did not make them before the Commission. “Even arguments of
constitutional dimension must be argued below if they are to be preserved for appeal.” Finley
v. Farm Cat, Inc., 103 Ark. App. 292, 297, 288 S.W.3d 685, 690 (2008).
The only constitutional argument Bio-Tech made to the Commission, and upon
which the Commission ruled, was that Arkansas Code Annotated section 11-9-105(b)(1)
violates its Seventh Amendment right to a jury trial. This argument is thus ripe for our
review, but is easily decided. “[T]he 7th Amendment applies only to proceedings in courts
of the United States, and does not in any manner whatever govern or regulate trials by jury
in state courts, or the standards which must be applied concerning the same.” Minneapolis &
St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916); see also Colclasure v. Kansas City Life
Ins. Co., 290 Ark. 585, 588, 720 S.W.2d 916, 918 (1986). Because the Seventh Amendment
to the United States Constitution does not apply to the states, we affirm the Commission’s
holding that Bio-Tech’s Seventh Amendment challenge has no merit.
To be sure, article 2, section 7 of the Arkansas Constitution secures Arkansans’ right
to a jury trial in civil cases. Bio-Tech, however, did not make any argument to the
Commission under this provision of the Arkansas Constitution. It instead based its argument
exclusively on the Seventh Amendment to the United States Constitution. To the extent that
Bio-Tech argues on appeal that code section 11-9-105(b)(1) violates its right to a jury trial
under the Arkansas Constitution, the argument is again not preserved because Bio-Tech did
not make it before the Commission. Finley, 103 Ark. App. at 297, 288 S.W.3d at 690.
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Compensability
As noted above, the ALJ entered a pre-hearing order in June 2007, stating that the
parties stipulated that “[t]he claimant sustained a compensable injury in June 2004.” The ALJ’s
January 2008 opinion, finding that Bio-Tech’s workers’ compensation coverage had lapsed
at the time of Blouin’s injury, listed the same stipulation and said that the compensability
stipulation (among others) contained in the prehearing order was “hereby accepted as fact.”
At a hearing before the ALJ in October 2008, the ALJ mentioned the compensability
stipulation and asked the parties if there were any changes that needed to be made to the
prehearing order. The following colloquy occurred:
[BIO-TECH’S ATTORNEY]:
You – the only – the only issue that’s – the
Court has found in their prior orders they
have been using as the date of injury, I
believe, a June 2004 date, which is our
contention is inconsistent with the medical
records, and I believe the testimony may –
may amend or change whatever that date
is, so as opposed to us stipulating that – I
mean, since I wasn’t in the record. I don’t
I don’t know how it ended up getting
stipulated initially, but I think just for
clarification of the record that that date is
not stipulated as to the date of injury.
JUDGE STEWART:
Okay.
[BLOUIN’S ATTORNEY]:
But – but we do stipulate that during the
course of his employment at Bio Tech,
that there was an incident involving a desk,
which was reported as an injury that a
claim was opened up on and that benefits
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had been paid out on by AIG when they
were still a party to this.
JUDGE STEWART:
For whatever date it was.
[BLOUIN’S ATTORNEY]:
For whatever –
[BIO-TECH’S ATTORNEY]:
And I think it’s probably more consistently
like November the 1st, somewhere in that
area.
JUDGE STEWART:
Okay. All right. With that, the Pre-hearing
Order will be admitted as Commission
Exhibit No. 1.
Thus, the only issues litigated at the October 2008 hearing were Blouin’s entitlement to
permanent-partial-disability benefits, including wage-loss-disability benefits, and attorney’s
fees. The ALJ’s resulting October 2008 opinion again noted that its January 2008 opinion,
which contained the compensability stipulation, was final.
In its appeal to the Commission, Bio-Tech challenged compensability. But the
Commission held that the ALJ’s June 2007 prehearing order was res judicata. The Commission
further found, quoting the same colloquy above, that Bio-Tech had never withdrawn its
earlier stipulation. It stated that Bio-Tech’s lawyer’s comments did not “rise to the level of
withdrawing the stipulation.” We agree with the Commission’s conclusion: Bio-Tech
stipulated that Blouin’s injury (whenever it occurred) was compensable, did not withdraw the
stipulation, and agreed to litigate only the issues of Blouin’s entitlement to permanent-partialdisability benefits, including wage-loss-disability benefits, and attorney’s fees. Compensability
is therefore a closed issue.
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Permanent-Partial-Disability Benefits
“Permanent benefits shall be awarded only upon a determination that the compensable
injury was the major cause of the disability or impairment.” Ark. Code Ann. § 11-9102(4)(F)(ii)(a) (Supp. 2009). In order to receive wage-loss-disability benefits in excess of his
permanent-physical impairment, Blouin first had to prove, by a preponderance of the
evidence, that he sustained permanent-physical impairment as a result of a compensable
injury. Taggart v. Mid Am. Packaging, 2009 Ark. App. 335, at 4, 308 S.W.3d 643, 646. “The
wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability
to earn a livelihood.” Taggart, 2009 Ark. App. 335, at 5, 308 S.W.3d at 647. “In considering
claims for permanent partial disability benefits in excess of the employee’s percentage of
permanent physical impairment, the Workers’ Compensation Commission may take into
account, in addition to the percentage of permanent physical impairment, such factors as the
employee’s age, education, work experience, and other matters reasonably expected to affect
his or her future earning capacity.” Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002). There
are other matters to be considered as well: motivation, post injury income, credibility, and
demeanor, among other factors. Taggart, 2009 Ark. App. 335, at 5, 308 S.W.3d at 647.
In assigning Blouin a 7% permanent-impairment rating, the ALJ considered Blouin’s
testimony and medical history, including his previous back-pain complaints, which predated
his employment with Bio-Tech. The ALJ, however, relied most heavily on Dr. Cathey’s
opinion. In a February 2006 letter, Dr. Cathey, a neurosurgoen, stated that he believed that
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“it is reasonable to assume that the disc herniation at T12-L1 resulted from the occupational
injury Mr. Blouin sustained in September 2004.” Dr. Cathey found, in the same letter, that
Blouin is “entitled to a 7% permanent partial impairment rating to the whole person.” In
sum, substantial evidence supports the ALJ’s conclusion that Blouin is entitled to a 7%
permanent-partial-impairment rating. Averitt Express, Inc. v. Gilley, 104 Ark. App. 16, 17–19,
289 S.W.3d 118, 120–21 (2008).
The ALJ, in analyzing the wage-loss question, considered a variety of factors. The ALJ
noted that Blouin was fifty-nine years old, received a bachelor’s degree in history and fine arts
and a doctorate in crypto technology, and had worked as a freelance artist for some time after
college in New Orleans. Blouin testified that his income as an artist was right around the
poverty line or slightly above it. Blouin also said that he had worked as a business manager
for a landscape-architecture firm about twenty years earlier. Before working at Bio-Tech,
Blouin had stayed home for about seven years raising his son. At the time of the hearing,
Blouin had been working for Bio-Tech for about five years. Blouin returned to his job at
Bio-Tech for a while after his injury, but was later placed on administrative suspension
without pay.
Since leaving Bio-Tech, Blouin had worked part-time at the Department of Health
and Human Services earning $10.00 per hour, part-time at another governmental agency
earning minimum wage, and as a substitute teacher earning $70.00 per day. Blouin testified
about how his back problems had interfered with his ability to perform his work at these jobs
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in various ways. Blouin said that, since his injury, the most he had worked was one to two
weeks at a time.
The ALJ also weighed Dr. Cathey’s opinion in the balance. In his February 2006
letter, Dr. Cathey found that Blouin had reached maximum medical improvement and wrote,
“I believe the patient should be encouraged to resume the activities of daily living without
restrictions. I have also encouraged him to resume jogging, working out, bicycling, etc.
Although these activities might lead to an increase in his current symptomatology, there is
certainly no medical contraindication to the performance of these tasks.” Taking all of these
factors into consideration, the ALJ awarded Blouin 3% wage-loss disability.
Both Bio-Tech and Blouin challenge the wage-loss award. Blouin, of course, argues
that the award should have been greater. He claims that the ALJ should have given more
consideration to his wage-earning history and to his current job prospects, especially in light
of his continuing back pain. Blouin advocates for an increase to 50% wage-loss disability. BioTech, on the other hand, points to Blouin’s lack of motivation and argues that Blouin’s lowwage-earning work history is the product of his desire to work as an artist, not his inability
to obtain higher-paying and/or full-time work. Both Blouin’s and Bio-Tech’s challenges,
however, are unavailing. Because reasonable minds could reach the Commission’s conclusion,
substantial evidence supports its 3% wage-loss-disability award. Walker, 104 Ark. App. at
176–77, 289 S.W.3d at 186.
Affirmed on direct appeal; affirmed on cross-appeal.
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HENRY and BROWN, JJ., agree.
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