Johnnie Sue Brown v. Excel Corporation

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

JOHNNIE SUE BROWN

APPELLANT

V.

EXCEL CORPORATION

APPELLEE

CA01-71

September 19, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E705042]

AFFIRMED ON APPEAL;

AFFIRMED ON CROSS-APPEAL

The appellant in this workers' compensation case sustained a back injury in April 1997 when she attempted to catch a falling tray of meat while employed by appellee Excel. Appellant was assigned a 2.5 percent physical impairment rating in February 1998 by Dr. Greg Jones. Appellant was subsequently referred by Dr. Jones to Dr. Standefer, a neurosurgeon. After conducting additional testing, Dr. Standefer discovered an annular tear at the L5-S1 level that had not previously been observed. On the basis of the annular tear, he assigned appellant a bodily impairment rating of 7 percent.

Appellant filed a claim for benefits seeking entitlement to permanent disability benefits based on Dr. Standefer's 7 percent impairment rating; wage-loss benefits; and Second Injury Fund liability based on pre-existing loss of vision, degenerative disc disease

at L4-5, and shoulder problems. After a hearing, the Administrative Law Judge found that, as a result of her compensable injury, appellant sustained permanent physical impairment in an amount equal to 7 percent to the body as a whole as assigned by Dr. Standefer; that appellant failed to proved by a preponderance of the evidence that she suffered any loss in wage earning capacity as a result of her compensable injury; and that the Second Injury Fund was not liable for any compensation benefits. On de novo review, the Commission adopted the findings made by the administrative law judge. From that decision, come this appeal and cross-appeal.

On appeal, appellant contends that the Commission erred in finding that she failed to establish entitlement to wage-loss benefits, and in determining that the Second Injury Fund had no liability in this case. On cross-appeal, the appellee-employer contends that the Commission erred in finding that appellant sustained a 7 percent impairment to the body as a whole as a result of her compensable injury. We affirm on appeal and on cross-appeal.

We first address the direct appeal. The standard of review where the Commission denies benefits based on a failure to prove entitlement is whether the Commission's opinion displays a substantial basis for denial of relief. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979). In the present case, the Commission based its finding that appellant failed to prove wage-loss disability on evidence that she was provided employment within her medical limitations by appellee-employer, that she quit that employment despite having been returned to such limited-duty work by her physicians, and that appellant was a high-school graduate with twenty years' experience in bookkeeping andaccounting derived from her self-employment as a beautician. The Commission also found that appellant lacked motivation to return to work, basing this finding on her having resigned from light-duty employment offered by appellee-employer within her medical restrictions; on appellant's failure to look for other work with those restrictions; on appellant's having instead applied for Social Security Disability benefits; and on evidence of symptom-magnification during a functional capacities evaluation conducted in December 1997.

Here the basis for denying relief, simply put, was that, although appellant had available employment within her medical restrictions and had other skills that could readily lend themselves to such employment, she did not avail herself of these opportunities and was malingering. Although the evidence would support other conclusions, the conclusions that the Commission arrived at are reasonable in light of the evidence, and we therefore must affirm. Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 (1985). Given our holding that the Commission did not err in finding appellant failed to establish entitlement to wage-loss disability, it follows that it did not err in finding that there was no wage-loss disability liability on the part of the Second Injury Fund.

On cross-appeal, appellee contends that the Commission erred in finding that appellant sustained a 7 percent impairment to the body as a whole as a result of her compensable injury. This rating was based on the annular tear at L5-S1 discovered by Dr. Standefer. The appellee's argument on this point is premised on the assumption that the annular tear was not caused by the compensable injury because it was not seen in the diagnostic studies conducted before Dr. Standefer began treating appellant. Although thiswould be cause enough to deny benefits had the Commission drawn this conclusion from the evidence, it did not do so. Instead, it appears that the Commission simply believed that the studies and analysis conducted by Dr. Standefer, a neurosurgeon, were entitled to greater weight than those performed by her previous treating physicians. This is likewise an acceptable conclusion based on the evidence, and we affirm. See Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).

Affirmed on direct appeal; affirmed on cross-appeal.

Hart and Roaf, JJ., agree.