Stephens Truck Lines v. Millican

STEPHENS TRUCK LINES v. Robert MILLICAN

CA 97-3                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
              Opinion delivered September 17, 1997


1.   Workers' compensation -- standard of review -- substantial evidence
     defined. -- In determining the sufficiency of the evidence to
     sustain the findings of the Workers' Compensation Commission,
     the appellate court reviews the evidence in the light most
     favorable to the Commission's findings and affirms if they are
     supported by substantial evidence; substantial evidence is
     such relevant evidence as a reasonable mind might accept as
     adequate to support a conclusion; the question is not whether
     the evidence would have supported findings contrary to the
     ones made by the Commission; there may be substantial evidence
     to support the Commission's decision even though the court
     might have reached a different conclusion had it sat as the
     trier of fact or heard the case de novo.  

2.   Workers' compensation -- evidence -- credibility of witnesses and weight
     of testimony for Commission to determine. -- It is the function of
     the Workers' Compensation Commission to determine the
     credibility of the witnesses and the weight to be given their
     testimony; the Commission has the duty of weighing medical
     evidence and, if the evidence is conflicting, its resolution
     is a question of fact for the Commission; 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.

3.   Workers' compensation -- substantial evidence supported Commission's finding
     that appellee sustained compensable neck injury. -- Substantial
     evidence supported the Workers' Compensation Commission's
     finding that appellee sustained a compensable neck injury
     where appellee testified that he fell from his trailer while
     attempting to cover a load with a tarp, that his "head popped
     back" when he struck the ground, and that he was treated in
     the emergency room and informed medical personnel that he was
     experiencing pain in his neck; where the employer refused to
     provide additional medical treatment; and where appellee later
     obtained further medical care, and an MRI scan revealed a
     large disc herniation of the cervical spine at C4-C5.

4.   Workers' compensation -- evidence -- inconsistencies in testimony are
     matters exclusively within Commission's province. -- Inconsistencies in
     testimony go to the weight and credibility of the testimony;
     these are matters exclusively within the province of the
     Workers' Compensation Commission.

5.   Workers' compensation -- strict and literal construction of law. -- By
     legislative mandate, the Arkansas Workers' Compensation Law
     must be strictly and literally construed by the Commission and
     the courts; even statutes that must be strictly construed will
     not be given a literal interpretation leading to absurd
     consequences that are clearly contrary to legislative intent.

6.   Workers' compensation -- requirement that compensable injury must be
     established by medical evidence supported by objective findings applies
     only to existence and extent of injury. -- The statutory requirement
     that a compensable injury must be established by medical
     evidence supported by objective findings applies only to the
     existence and extent of the injury.

7.   Workers' compensation -- case reversed and remanded for Commission to make
     findings sufficient for appellate court to determine whether healing-period
     issue was resolved. -- Because estoppel is ordinarily a question
     of fact, and because the Workers' Compensation Commission did
     not make a specific determination that the employer was
     estopped on the issue of appellee's healing period, the
     appellate court reversed and remanded the matter for the
     Commission to make findings sufficient for the court to
     determine whether the issue was resolved in conformity with
     the law.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed in part; reversed and remanded in part.
     Huckabay, Munson, Rowlett & Tilley, P.A., by:  Jim Tilley and
Julia L. Busfield, for appellant.
     Dowd, Harrelson, Moore & Giles, by: Greg Giles, for appellee.

     John Mauzy Pittman, Judge.
     The appellee was employed by the appellant trucking company on
July 26, 1994.  He filed a claim for benefits alleging that he
injured his back and neck on that date when he fell while pulling
a tarp over the load.  The administrative law judge found that he
sustained a compensable injury and awarded temporary total
disability benefits.  On de novo review, the Commission likewise
found that appellee sustained a compensable injury to his cervical
spine, and that he was entitled to temporary total disability
benefits from July 26, 1994, until August 25, 1995.  This appeal
followed.
     For reversal, appellant contends that the evidence is
insufficient to support the Commission's findings that appellee
sustained a compensable neck injury and that appellee was
temporarily totally disabled from July 26, 1994, through August 26,
1995.
     In determining the sufficiency of the evidence to sustain the
findings of the Workers' Compensation Commission, we review the
evidence in the light most favorable to the Commission's findings
and affirm if they are supported by substantial evidence.  Weldon
v. Pierce Brothers Constr., 54 Ark. App. 344, 925 S.W.2d 179
(1996).  Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. 
City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463
(1992).  The question is not whether the evidence would have
supported findings contrary to the ones made by the Commission;
there may be substantial evidence to support the Commission's
decision even though we might have reached a different conclusion
if we sat as the trier of fact or heard the case de novo.  Tyson
Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). 
In making our review, we recognize that it is the function of the
Commission to determine the credibility of the witnesses and the
weight to be given their testimony.  Whaley v. Hardee's, 51 Ark.
App. 166, 912 S.W.2d 14 (1995).  The Commission has the duty of
weighing medical evidence and, if the evidence is conflicting, its
resolution is a question of fact for the Commission.  Id.  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.  Id.  
     Appellant first contends that there is no substantial evidence
to support the Commission's finding that appellee sustained a
compensable neck injury.  We do not agree.  Appellee testified
that, while attempting to cover the load with a tarp, he fell from
his trailer and that his "head popped back" when he struck the
ground.  He further testified that he was treated in the emergency
room, where he informed medical personnel that he was experiencing
pain in his neck.  The employer refused to provide additional
medical treatment, and appellee did not obtain further medical care
until September 1994, when an MRI scan revealed a large disc
herniation of the cervical spine at C4-C5.
     Appellant argues that there were inconsistencies in appellee's
testimony that render it unworthy of belief.  However, this
argument goes to the weight and credibility of the testimony, and
these matters are exclusively within the province of the
Commission.  Crawford v. Pace, 55 Ark. App. 60, 929 S.W.2d 727
(1996).
     Appellant also argues that the finding of a compensable injury
was not supported by substantial evidence because the only
objective medical evidence of a neck injury was an MRI performed in
September 1994 that revealed a herniation at C4-C5.  Appellant does
not argue that the MRI fails to show an injury, but instead asserts
that there is no objective medical evidence to show that the injury
took place on July 26, 1994, or that appellee injured his neck
while working for appellant.
     Appellant's argument requires us to decide the scope of Ark.
Code Ann.  11-9-102(5)(D) (Repl. 1996), which provides that "[a]
compensable injury must be established by medical evidence
supported by 'objective findings' as defined in  11-9-102(16)." 
This statute is part of the Arkansas Workers' Compensation Law,
which by legislative mandate must be strictly and literally
construed by the Commission and the courts.  Ark. Code Ann.  11-9-
704(c)(3) (Repl. 1996); Duke v. Regis Hairstylists, 55 Ark. App.
327, 935 S.W.2d 600 (1996).  Appellant, in effect, asks us to apply
the statutorily-mandated standard of strict construction to hold
that a claimant must offer objective medical evidence to prove not
only the existence of an injury, but also to show the circumstances
under which the injury was sustained and the precise time of the
injury's occurrence.  This we cannot do.  Although it is
irrefutably true that the legislature has required medical evidence
supported by objective findings to establish a compensable injury,
it does not follow that such evidence is required to establish each
and every element of compensability.  The statutory definition of
compensability as set out in Ark. Code Ann.  11-9-102(5) contains
many elements that simply are not susceptible of proof by medical
evidence supported by objective findings.  For example, a
compensable accidental injury must be shown to have been caused by
a specific incident and to be identifiable by time and place of
occurrence.  Ark. Code Ann.  11-9-102(5)(A)(i).  Injuries
inflicted at a time when employment services were not being
performed are not compensable, Ark. Code Ann.  11-9-
102(5)(B)(iii), nor are injuries resulting from engaging in
horseplay.  Ark. Code Ann.  11-9-102(5)(B)(i).  We know of no type
of medical examination or test that would result in objective
findings to show exactly where and when an injury was incurred, or
whether the employee was injured while performing employment
services rather than while engaging in horseplay.  Even statutes
that must be strictly construed will not be given a literal
interpretation leading to absurd consequences that are clearly
contrary to legislative intent.  Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993).
     The legislature has declared that the major and controlling
purpose of workers' compensation is to pay timely benefits to all
legitimately injured workers and return them to work.  Ark. Code
Ann.  11-9-1001 (Repl. 1996).  Were we to interpret the Act so
strictly as to require objective medical evidence to prove
nonmedical elements of compensability, we would defeat the
overriding legislative intent.  Consequently, we hold the
requirement that a compensable injury must be established by
medical evidence supported by objective findings applies only to
the existence and extent of the injury.
     Next, appellant contends that the Commission's finding that
appellee was temporarily totally disabled from July 26, 1994,
through August 26, 1995, is not supported by substantial evidence
because appellee did not show that he remained in his healing
period until August 26, 1995.  Appellant argues that the record is
"devoid of any medical evidence indicating that appellee was ever
within his healing period."  The Commission noted the paucity of
medical evidence to show the duration of appellee's healing period
but nevertheless found that he remained in his healing period until
he returned to work in August 1995.  In so finding, the Commission
emphasized the employer's refusal to provide further treatment and
the appellee's inability to pursue treatment on his own due to
restricted finances following his termination.  Although the
Commission did not expressly state that it was applying the
doctrine of estoppel, it is implicit in its opinion that it did
so.  See Southern Hospitalities v. Britain, 54 Ark. App. 318, 925 S.W.2d 810 (1996).  However, because estoppel is ordinarily a
question of fact, see Dickson v. Delhi Seed Co., 26 Ark. App. 83,
760 S.W.2d 382 (1988), and because the Commission did not make a
specific determination that the employer was estopped, we reverse
and remand on this point for the Commission to make findings
sufficient for us to determine whether this issue was resolved in
conformity with the law.  See Wright v. American Transportation, 18
Ark. App. 18, 709 S.W.2d 107 (1986).
     Affirmed in part; reversed and remanded in part.
     Crabtree, J., agrees.
     Arey, J., concurs.


            D. Franklin Arey, III, Judge, concurring.


     I agree that the evidence is sufficient to support the
Commission's finding that appellee sustained a compensable neck
injury.  I also agree that the temporary total disability claim
should be remanded.  Because the majority pulls an estoppel
argument out of thin air, and does so in a fashion that favors one
party over the other, I must concur.
     Nothing before us justifies an implication of estoppel. 
Nothing in the Commission's opinion suggests that the appellant
failed to assert a claim or right, and that the appellee relied on
that failure to his detriment.  Compare, e.g., Johnson v. Spencer,
222 Ark. 710, 262 S.W.2d 290 (1953) (noting that where one stands
by and fails to assert a claim, he cannot later assert it against
another who relied on his silence).  Nothing in the Commission's
opinion suggests that appellant told appellee to seek medical care,
and then refused to pay.  Compare Southern Hospitalities v. 
Britain, 54 Ark. App. 318, 925 S.W.2d 810 (1996) (finding employer
liable to pay for medical treatment that it directed the employee
to obtain, on a theory of estoppel).  The majority puts the cart
before the horse:  it implies estoppel, without any factual
findings by the Commission to support the implication, and remands
to the Commission for it to supply the missing findings.
     Further, the majority's implication favors the appellee over
the appellant.  Without any basis for believing the Commission
relied on estoppel, it implies a theory which prevents further
argument by the appellant concerning appellee's healing period. 
The Commission's opinion could just as easily have been read to
suggest that the appellant consistently exercised its right not to
pay for medical expenses until the appellee was determined to have
suffered a compensable injury.  See Ark. Code Ann.  11-9-
102(5)(F)(i) (Repl. 1996); Southern Hospitalities, 54 Ark. App. at
322, 925 S.W.2d  at 812.  Hopefully, on remand the Commission will
realize that it is not required to utilize estoppel without giving
both sides a chance to argue its applicability.
     I would, nonetheless, remand this matter.  In my opinion,
substantial evidence does not support the Commission's finding that
the appellee's healing period ended on the same day appellee
returned to work.  On these facts, I believe fair-minded persons
would conclude that this was a happy coincidence, and nothing more;
I do not believe fair-minded persons would reach the same
conclusion as the Commission.  However, we are allowed to remand
even if we do not find substantial evidence of record.  See Ark.
Code Ann.  11-9-711(b)(4).  Therefore, I concur.