Lee Wayne Jeter v. B.R. McGinty Mechanical
Annotate this Case
Lee Wayne JETER v. B.R.McGINTY MECHANICAL
CA 97-700 ___ S.W.2d ___
Court of Appeals of Arkansas
Divisions III & IV
Opinion delivered May 5, 1998
1. Workers' compensation -- factors on review -- substantial
evidence defined. -- On appeal in workers' compensation cases,
the appellate court views the evidence and all reasonable
inferences deducible therefrom in the light most favorable to
the Workers' Compensation Commission's findings and will
affirm if those findings are supported by substantial
evidence; substantial evidence means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion; the issue on appeal is not whether the appellate
court might have reached a different result or whether the
evidence would have supported a contrary finding; if
reasonable minds could reach the Commission's conclusion, its
decision must be affirmed; where a claim is denied, the
substantial evidence standard of review requires the appellate
court to affirm the Commission if its opinion displays a
substantial basis for the denial of the relief sought.
2. Workers' compensation -- Commission weighs witness credibility
-- Commission has duty to weigh medical evidence. -- It is the
function of the Workers' Compensation Commission to determine
the credibility of the witnesses and the weight given to their
testimony; the Commission also 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 -- employer responsible when primary
injury arises out of and in course of employment. -- When the
primary injury is shown to have arisen out of and in the
course of the employment, the employer is responsible for any
natural consequence that flows from that injury; the basic
test is whether there is a causal connection between the two
episodes.
4. Workers' compensation -- Commission must translate evidence
into findings of fact -- Commission's resolution of medical
evidence has force and effect of jury verdict. -- It is the
duty of the Workers' Compensation Commission to translate the
evidence on all issues before it into findings of fact; the
specialization and experience of the Commission make it better
equipped than the appellate court to analyze and translate
evidence into findings of fact; the Commission has the duty of
weighing the medical evidence as it does any other evidence,
and its resolution of the medical evidence has the force and
effect of a jury verdict; 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 appellate
court might have reached a different conclusion if the court
sat as the trier of fact or heard the case de novo.
5. Workers' compensation -- existence of causal connection --
question of fact. -- The determination of whether a causal
connection exists is a question of fact for the Workers'
Compensation Commission to determine.
6. Workers' compensation -- Commission found causal connection to
be lacking -- Commission's opinion displayed substantial basis
for denial of relief sought. -- The Workers' Compensation
Commission interpreted appellant's only medical evidence as
stating that the only basis for a possible causal connection
between appellant's 1994 coronary blockage and his 1991
coronary blockage was the mere coincidence that each blockage
occurred at the same location; mere coincidence is not to be
equated with causation; the Commission considered the opinion
of another physician, which indicated that appellant's
atherosclerosis was related to genetic and lifestyle factors,
and which described the possible connection to his prior
blockage as "conjecture"; because the Commission's opinion
displayed a substantial basis for the denial of the relief
sought, the appellate court affirmed the decision that
appellant's medical problems were not a compensable
consequence of his earlier compensable injury.
7. Workers' compensation -- controversion of claim question of
fact for Commission -- Commission's conclusion regarding
controversion and attorney's fees affirmed. -- Whether or not
a claim is controverted is a question of fact for the Workers'
Compensation Commission; its finding on this issue will not be
reversed unless there is no substantial evidence to support
it; because the appellate court could not say that reasonable
minds could not reach the Commission's conclusion regarding
controversion and attorney's fees, the appellate court
affirmed the Commission's award to appellant's attorney of a
fee of ten percent of appellant's compensation for a seventy-
five percent permanent partial anatomical impairment.
Appeal from Arkansas Workers' Compensation Commission;
affirmed.
Slagle & Gist, by: Richard L.Slagle, for appellant.
Huckabay, Munson, Rowlett & Tilley, P.A., by: Jim Tilley and
Julia L. Busfield, for appellee.
John E. Jennings, Judge.
This is a workers' compensation case. Appellant, Lee Wayne
Jeter, appeals from an order of the Commission, which found that he
failed to prove by a preponderance of the evidence that medical
problems requiring surgery in July 1994 were a compensable
consequence of his June 1991 compensable injury. He argues that
the Commission's finding is not supported by substantial evidence.
Appellee, B.R. McGinty Mechanical, cross-appeals from the Commis-
sion's order, arguing that the award of attorney's fees is not
supported by substantial evidence. We disagree, and affirm on both
the appeal and the cross-appeal.
Appellant suffered a compensable injury while employed by
appellee as a welder when he experienced a myocardial infarction at
work on June 12, 1991. At that time Dr. Bruce Murphy, appellant's
cardiologist, performed an angioplasty of a tight blockage in
appellant's right coronary artery. Appellant subsequently
developed another blockage in the right coronary artery which
required another surgery in July 1994. He sought workers'
compensation benefits for the 1994 blockage and surgery, arguing
that they were causally related to the compensable 1991 injury.
On appeal in workers' compensation cases, we view 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. Morelock v.
Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). Substantial
evidence means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. College Club Dairy v.
Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). The issue on appeal
is not whether we might have reached a different result or whether
the evidence would have supported a contrary finding; if reasonable
minds could reach the Commission's conclusion, we must affirm its
decision. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Where a claim is denied, the substantial evidence
standard of review requires us to affirm the Commission if its
opinion displays a substantial basis for the denial of the relief
sought. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987).
We also recognize that it is the function of the Commission to
determine the credibility of the witnesses and the weight given to
their testimony. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995). In addition, the Commission has the duty of weighing
medical evidence and, if the evidence is conflicting, its resolu-
tion 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. Whaley,
supra.
At the hearing appellant testified that he has remained under
Dr. Murphy's care since his 1991 heart attack and surgical
procedure. His attempt to return to work after his heart attack
was unsuccessful. He has remained on prescription medicines for
his heart, has lost weight and quit smoking, and plays golf about
once a week. After a check-up disclosed the subsequent blockage he
underwent the second procedure in July 1994.
Medical evidence consisted of a letter from Dr. Murphy,
appellant's treating cardiologist, which stated:
Wayne Jeter is a patient of mine who I have
been taking care of since 1991. He had a
myocardial infarction in June 1991 and subse-
quently had the artery opened, June 1991, with
angioplasty of a tight blockage in his right
coronary artery. In July 1994, repeat coro-
nary angiograms demonstrated that the exact
blockage was back at the exact same location
in his right coronary artery. This was effec-
tively treated with a directional coronary
atherectomy with removal of a large fractured
plaque in the coronary at the site that the
original infarct had occurred. The question
arose as to whether or not this was a work
related problem. His original infarct oc-
curred while at work. My only certain re-
sponse is that the exact same blockage is back
in the exact same location and therefore, the
ongoing treatment is for the same problem at a
later time. I am afraid I can't be more
specific than that. It is very clear from his
coronary angiograms that a new blockage had
not developed, but the old blockage had re-
curred at the exact same site. I hope that
this is helpful in your work in this matter.
Also in evidence is a letter from Dr. Eugene M. Jones, which
stated:
I reviewed the records on Mr. Wayne Jeter with
reference to his myocardial infarction that
occurred in June, 1991 and his subsequent
angioplasty. In addition to this, in July,
1994, he had repeat angiogram which showed
coronary artery obstruction in approximately
the same location of the right coronary ar-
tery. The patient does have other coronary
artery disease as evidenced by mild obstruc-
tions in both the left anterior descending and
circumflex systems.
I am well aware that there are many Workman
Comp claims for myocardial infarctions where
the patient experienced a myocardial infarc-
tion while doing his usual routines. Common-
ly, this is classified as related to that work
routine, however, as we also well recognize
atherosclerosis of the coronaries is a process
of continual change within the coronary arter-
ies. The process involves break down of the
wall of coronary arteries due to rather high
sheer forces due to the amount of blood being
transmitted to the myocardium. The break down
in that wall is associated first on a genetic
basis; that is, it is transmitted somewhat by
heredity but is influenced by other factors
such as cholesterol, smoking and regular
exercise program.
In this particular case, there appears to be a
focus on the aspect that the recurrent lesion
in the right coronary artery in 1994 was in
the exact location that it was in 1991. This
may indeed be more reflective of the sheer
forces that are present in that coronary
artery producing the lesion in the same site
as previously had occurred. Since the patient
had apparently had reasonable relief of symp-
toms for prolonged period, one would suggest
that this may well be a progression of the
disease process; that is atherosclerosis that
has been documented as well in his other
arteries.
In review of this material, there appears to
be some reference to the fact that the patient
had reonset of his symptoms and in fact in
March, 1992 on a treadmill he had some chest
tightness in the recovery period and had some
mild electrocardiographic changes but no
echocardiographic evidence of alterations of
wall motion. This then would make one consid-
er that the patient did not have complete
resolution of his right coronary artery lesion
with the angioplasty done in 1991. Certainly
this is all conjecture.
I hope I have outlined the various possibili-
ties and that my opinion really is that ath-
erosclerosis of the coronary arteries is not
significantly related to a patient's occupa-
tion but is more related to genetic factors
and lifestyle conditions such as smoking, high
cholesterol and hypertension.
When the primary injury is shown to have arisen out of and in
the course of the employment, the employer is responsible for any
natural consequence that flows from that injury. McDonald Equip.
Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). The basic
test is whether there is a causal connection between the two
episodes. See Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
The Commission's opinion quotes the letter from Dr. Murphy,
and then states:
With regard to Dr. Murphy's letter, we
note that Dr. Murphy has not suggested that
either the prior myocardial infarction itself,
or the nature of the 1991 blockage treatment,
increased the likelihood of the formation of a
"recurrent" blockage at the site of the 1991
blockage. As we interpret Dr. Murphy's state-
ments, Dr. Murphy's only basis for a possible
causal connection between the claimant's 1994
coronary blockage and the claimant's 1991
coronary blockage is the mere coincidence that
each blockage occurred at the same location.
However, relying on Dr. Murphy's observation
to find that the claimant's 1994 coronary
blockage was related to the 1991 infarction
(or the 1991 blockage treatment) would require
us to engage in speculation and conjecture,
and speculation and conjecture can never be
substituted for credible evidence, no matter
how plausible. Dena Construction Co. v.
Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980).
Moreover, the greater weight of the
evidence indicates that the coronary blockage
identified in 1994, was causally related to
other factors and was not related to either
the prior infarction or the prior blockage
treatment. In this regard, Dr. Eugene Jones,
also a cardiologist, indicated in a Novem-
ber 28, 1995, letter to the respondents'
attorneys that he reviewed the claimant's 1991
and 1994 medical records (which were not
submitted into evidence). According to
Dr. Jones, atherosclerosis is a process of
continued change within the coronary arteries
which involves a break down of the walls of
the coronary arteries due to rather high sheer
forces created by the amount of blood being
transmitted to the myocardia. Dr. Jones
indicated that coronary artery break down is
associated first with genetic factors, but
other factors including cholesterol, smoking,
and regular exercise may influence the pro-
cess. Dr. Jones also indicated that recur-
rence of a lesion at the same location in the
claimant's right coronary artery may merely
reflect the sheer forces created by blood flow
in the artery. In addition, Dr. Jones indi-
cated that atherosclerosis is present in other
arteries as well as the right coronary artery
and that the claimant can be experiencing a
natural progression of that disease process.
Moreover, Dr. Jones opined that atherosclero-
sis, the underlying disease process, is more
related to genetic factors and lifestyle
conditions (smoking, high cholesterol and
hypertension) and is not significantly related
to a person's occupation.
Although Dr. Murphy did not address
genetic factors or lifestyle conditions in his
assessment of the probable etiology of the
claimant's 1994 coronary blockage, we note
that the claimant testified that Dr. Murphy
placed him on a strict walking program and a
low cholesterol diet, and advised the claimant
to lose weight and quit smoking after identi-
fying the 1994 blockage.
Therefore, after reviewing the opinions
of Dr. Murphy and Dr. Jones, and all other
evidence in the record, and for the reasons
discussed herein, we find that the claimant
failed to prove by a preponderance of the
evidence that his 1994 coronary blockage is
causally related to the compensable injury he
sustained in 1991.
The determination of whether the causal connection exists is
a question of fact for the Commission to determine. Carter v.
Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986). The
Commission interpreted appellant's only medical evidence,
Dr. Murphy's letter, as stating that the only basis for a possible
causal connection between the appellant's 1994 coronary blockage
and his 1991 coronary blockage is the "mere coincidence that each
blockage occurred at the same location." Mere coincidence is not
to be equated with causation. Lybrand v. Ark. Oak Flooring Co.,
266 Ark. 946, 588 S.W.2d 449 (1979). The Commission obviously
considered the opinion of Dr. Jones, which indicated that appel-
lant's atherosclerosis was related to genetic and lifestyle
factors, and which described the possible connection to his prior
blockage as "conjecture." It is the duty of the Commission to
translate the evidence on all issues before it into findings of
fact. The specialization and experience of the Commission make it
better equipped than this court to analyze and translate evidence
into findings of fact. Weldon v. Pierce Bros. Constr., 54 Ark.
App. 344, 925 S.W.2d 179 (1996). The Commission has the duty of
weighing the medical evidence as it does any other evidence, and
its resolution of the medical evidence has the force and effect of
a jury verdict. Chamber Door Indus., Inc. v. Graham, 59 Ark. App.
224, 956 S.W.2d 196 (1997). 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. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
Because the Commission's opinion displays a substantial basis
for the denial of the relief sought, we must affirm.
The Commission's opinion also awarded appellant's attorney a
fee of ten percent of appellant's compensation for a seventy-five
percent permanent partial anatomical impairment. Appellee cross-
appeals, arguing that there is no substantial evidence to show that
the issue of permanent partial disability was controverted.
The Commission's opinion notes that appellee initially
controverted compensability on appellant's June 1991 injury in its
entirety. However, at the start of the hearing on September 23,
1992, appellee proposed stipulations concerning compensability,
lump sum temporary total disability benefits, and the commencement
of permanent partial disability benefits. Appellee's counsel
stated that the claim had been controverted in its entirety, and
appellee would pay appellant's counsel "in lump sum attorney's fees
on those benefits which have accrued to date, and then pay him
accordingly in some fashion for benefits in the future prior to
either a joint petition settlement or further determination by the
Commission regarding disability." The agreed order, entered on
October 26, 1992, reflects that appellee would begin to pay
permanent partial disability on an anticipated anatomical ruling
from Dr. Murphy and states that appellant's attorney "is to be paid
a maximum attorney's fee on all controverted benefits." Reading
the order in light of the stipulations, the Commission stated:
[W]e understand the administrative law judge's
September 23, 1992 order to require [appellee]
to pay an attorney's fee on [appellant's]
permanent partial disability compensation as
well as on [appellant's] reasonably necessary
medical expenses and his temporary total
disability compensation. Consequently, we
find that the issue of the [appellee's] obli-
gation for an attorney's fee on the claimant's
75% permanent partial impairment rating is now
res judicata.
The Commission further stated that, even if the issue of attorney's
fees for appellant's permanent partial disability was not res
judicata, it would still find that appellee had controverted
appellant's entitlement to permanent partial disability.
Appellee argues that it is undisputed that the issue of
permanent partial disability was reserved, as shown in the
prehearing order, and that appellee agreed to pay whatever rating
was assigned and has done so. The Commission, however, found that
the record of the hearing and the ALJ's order from 1992 clearly
establish that the parties did in fact raise and develop the
permanent partial disability issue at the hearing. Furthermore,
the Commission found that the evidence indicates that appellee
initially denied liability for any benefits until the September 23,
1992, hearing, but then stipulated that appellant was in fact
entitled to compensation for a permanent anatomical impairment
rating retroactive to September or October of 1991.
Whether or not a claim is controverted is a question of fact
for the Commission, and its finding on this issue will not be
reversed unless there is no substantial evidence to support it.
Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480
(1976). Because we cannot say that reasonable minds could not
reach the Commission's conclusion regarding controversion and
attorney's fees, we affirm.
Affirmed.
Pittman and Arey, JJ., agree.
Crabtree, Meads, and Roaf, JJ., dissent.
Terry Crabtree, Judge, dissenting. I do not believe the
Commission's decision is supported by substantial evidence and
would reverse.
The facts in this case are characterized by both parties as
relating to a subsequent injury or disability, or a recurrence, and
their arguments revolve around those concepts. However, it is more
appropriate to assess the dispute in terms of whether the second
procedure was reasonably necessary medical treatment for Jeter's
admittedly compensable 1992 heart attack. The appellant's treating
physician, Dr. Murphy, opined that:
. . . the exact blockage was back at the exact same
location in his right coronary artery. It is very clear
from his coronary angiograms that a new blockage had not
developed but the old blockage had recurred at the exact
same site.
However, B.R. McGinty arranged for Jeter's records to be reviewed
by another cardiologist, Dr. Jones. Dr. Jones states, in
generalities, the causes of heart disease, and then, without ever
seeing or treating Jeter, opined that the need for further
treatment was caused by genetics or high cholesterol.
Admittedly, the Commission has wide latitude in weighing the
medical evidence; however, when a case turns on such evidence, its
decision must still be supported by substantial evidence. In this
case, the Commission reviewed a cold record giving no weight to the
assessment of the determination of credibility made by the ALJ in
its de novo review of the record. This procedure begs the question
of why there is a hearing at all if there is no deference
whatsoever given to the tribunal that actually sees and hears the
witnesses. It would be more economical to forego a hearing and
send the case to the appellate courts without a hearing and solely
by depositions. Of course, the abbreviated procedure may fly in
the face of procedural and substantive due process, but it is
analogous to the situation that currently exists where the
Commission, without assessing the personal attributes of the
witnesses testifying, reverses a decision of the ALJ on
credibility. This case is particularly notable because the
Commission evidently accepted the testimony of a physician hired to
review Jeter's medical records who testified to heart disease in
general, whereas Dr. Murphy actually treated the appellant and was
aware of the unique circumstances of his case.
The Commission cites Dena Const. Co. v. Herndon, 264 Ark. 791,
575 S.W.2d 151 (1979), for the proposition that a decision cannot
rest on speculation and conjecture. The Dena case has been cited
many times for this proposition, but the holding in Dena was that
of an appellate court and not the Commission. The Commission is to
weigh the evidence presented to it and give whatever weight it
considers appropriate to the testimony of the witness. Hanson v.
Amfuel, 54 Ark. App. 370, 925 S.W.2d 166 (1996). They need not set
aside their common sense in making their decision. The Commission
may make reasonable inferences from the testimony received and base
its decision on both the direct evidence and the inferences that
may be drawn from that testimony. To reject the testimony of the
treating physician in this case, and accept that of a doctor who
never saw the patient and testified in generalities, is to shirk
the obligation to make a decision based upon reasonable inferences
from the evidence. Such a well-settled procedure cannot be
characterized as relying on speculation and conjecture.
In this case, there is more than enough evidence in the record
to indicate that the medical services provided to the appellant
were a result of the initial injury. Dr. Murphy was clear in
stating that the blockage was in the exact same place as the
previous blockage. The reasonable inference to be drawn from this
fact is that the blockage was site-specific as a result of the
initial injury. Any other conclusion would in fact result in
speculation and conjecture on the part of the Commission.
With due respect to my fellow judges, I dissent.
Meads, J., joins in this dissent.
Andree Layton Roaf, Judge, dissenting. I agree with the majority
on the affirmance of the direct appeal brought by Jeter. However,
I do not agree that the cross-appeal should also be affirmed, and
I would reverse.
B.R. McGinty argues on cross-appeal that there is no substantial
evidence to support the Commission's finding that it controverted
the award of Jeter's permanent partial disability (PPD). It
contends that the Commission disregarded controlling authority in
Lambert v. Baldor Elec., 44 Ark. App. 117, 868 S.W.2d 513 (1993),
and points to the prehearing order filed August 27, 1992, which
states in pertinent part:
Claimant contends in summary that he sustained a compensable
heart attack on June 12, 1991; that he is entitled to temporary
total disability benefits from June 12, 1991, and continuing
through an undetermined date based upon the medical evidence;
payment of all medical and related expenses; and controverted
attorney's fee on any benefits awarded. Claimant specifically
reserved the issues of vocational rehabilitation and permanent
disability.
(Emphasis added.)
B.R. McGinty contends that the issue of permanent disability
was specifically reserved and that it willingly began paying PPD
even before a rating had been assigned and the amount established.
Further, citing Aluminum Co. of Amer. v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976), B.R. McGinty contends that the purpose of the
attorney fees statute is to discourage respondents from delaying
accepting liability for the claim and to deter arbitrary denial of
claims, and because it promptly paid the PPD benefits, it should
not be penalized. I fully agree with both contentions.
In the August 27, 1992, prehearing order, the issue of
permanent impairment was specifically excepted from the scheduled
September 23, 1992, hearing. Although the Commission is
essentially correct in stating that the "parties did in fact raise
and develop the permanent anatomical impairment issue at the
September 23, 1992, hearing," this statement is misleading. B.R.
McGinty raised this issue only to totally capitulate. The
administrative law judge (ALJ) noted on the record B.R. McGinty's
decision to pay PPD even though Jeter had not yet been medically
maximized, and stated, þof course, as you all were both aware, the
primary issue was one of compensability, and permanent disability,
as well as rehabilitation, was specifically reserved even by the
terms of the prehearing order filed August the 27th." Accordingly,
it was clear that B.R. McGinty could have controverted the amount
of PPD, but chose not to. While res judicata prevented it from
subsequently controverting the amount of PPD benefits, it has
nothing to do with deeming a reserved issue controverted.
Moreover, B.R. McGinty justifiably relies upon Lambert v.
Baldor Elec., supra. In Lambert, the employer had fully
controverted a claim. However, after the ALJ ruled that the injury
was compensable and awarded temporary disability benefits and
attorneyþs fees, the employer settled a later claim for total
permanent disability benefits on the day Lambert requested a
hearing on the issue. This court rejected Lambertþs argument that,
because the employer had controverted disability at a prior
hearing, such controversion should extend to any disability
benefits awarded at any subsequent hearing, stating, þthis argument
is without merit because Baldor Electric did not controvert
Lambertþs claim for permanent benefits.þ This is precisely the
scenario presented in the instant case, however, the Commission and
this court inexplicably have chosen to penalize B.J. McGinty, who
agreed to pay permanent benefits at an even earlier stage than did
the employer in Lambert.
Although it is true that the question of controversion is one
of fact to be determined by the Commission and must be affirmed if
supported by substantial evidence, Aluminum Co. of Amer. v.
Henning, supra, I conclude that there is no evidence of
controversion of the reserved issue of PPD. Accordingly, I would
reverse the Commission's award of attorney fees based on the PPD
award.
Crabtree, J., joins.
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