Clifford Castor v. Southfork Caf, Houston General Insurance Company, and Second Injury Fund

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca04-070

DIVISION IV

CLIFFORD CASTOR

APPELLANT

V.

SOUTHFORK CAFÉ, HOUSTON

GENERAL INSURANCE COMPANY,

and SECOND INJURY FUND

APPELLEES

CA 04-70

OCTOBER 26, 2005

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E708319]

AFFIRMED

John B. Robbins, Judge

Appellant Clifford Castor appeals the denial of additional benefits by the Workers' Compensation Commission in his claim against appellee Southfork Café. Appellant asserts on appeal that he was either rendered permanently and totally disabled as a result of his work injury or that he was entitled to wage-loss disability benefits in excess of his permanent impairment rating. Thus, appellant contends that the Commission's decision lacks substantial evidence to support its conclusion. We disagree, holding that there is a substantial basis upon which to deny additional benefits. Therefore, we affirm.

To explain in more detail, appellant suffered a work-related injury when he slipped and fell while working as a chef for Southfork in July 1997. The injury was accepted as a compensable injury by his employer. Appellant's back injury required two lumbar fusion surgeries, one in January 1999 and one in January 2000, and the implantation of a medication pump to relieve pain in March 2001. In September 2001, appellant was given a 15 percent

permanent impairment rating attributable to the back surgeries, which was accepted and paid by appellee. Appellant sought additional benefits, contending that he was permanently and totally disabled. Appellee controverted the claim for additional benefits and argued that even if appellant was entitled to wage-loss disability benefits, those were the responsibility of the Second Injury Fund. The administrative law judge (ALJ) found that appellant was entitled to a 45 percent wage-loss disability benefit over and above the 15 percent permanent impairment rating. The ALJ also found that the Second Injury Fund bore no responsibility. Appellee Southfork appealed to the Commission, which reversed the ALJ and found that appellant had failed to prove by a preponderance of the evidence that he was entitled to wage-loss disability benefits. The Commission affirmed the finding that the Second Injury Fund had no liability. This appeal followed, in which only appellant and appellee Southfork appear; the Second Injury Fund did not participate.

To perform the proper review on appeal, we must examine the basis for the Commission's findings. The Commission set forth the relevant law on the subject of wage-loss disability benefits and permanent and total disability benefits. It reviewed the record of testimony at the April 2002 hearing. Appellant called six friends to testify about how appellant had been a strong and physically active man prior to this work injury, but his physical condition was markedly diminished after his injury and surgeries. His witnesses, however, had not seen him in the six months preceding the hearing because appellant had moved from Mountain Home, Arkansas, to Florida. One friend noted that since he had moved to Florida, appellant usually talked about sunning in Florida's year-round mild weather.

The Commission also had before it the testimony of appellant, who was fifty-four years old at the time of the hearing. Appellant testified that he had a college degree with adouble major (business and commercial advertising), which he completed in less than four years, but he had not used those majors for work purposes except briefly after graduation. Appellant worked between 1970 and 1985 as a professional baseball umpire, but he tired of the fast pace and extensive travel, so he quit. Appellant chose to settle in Arkansas and built his own house, which he constructed between 1992 and 1996. In 1994, appellant began working at the Southfork Café in Salem, Arkansas, acting as head chef. Appellant trained for the job and considered himself a gourmet chef.

Appellant explained that he slipped and fell at work while carrying a bucket of hot water in July 1997. He stated that after his two surgeries and treatments, he still had the implanted morphine pump, which required regular maintenance, and he continued to take oral pain medication on a daily basis. Appellant said that he had moved to Florida to live with his mother and sister; he did not work. He said he had a doctor in Florida. Appellant had applied and been approved for social security disability, and he also received workers' compensation benefits; these sources netted appellant $916 per month. Appellant said he earned approximately $1000 per month when he worked as a chef for appellee.

Appellant said he was bothered that he remained so physically limited. Appellant said that before his injury, he enjoyed hunting, fishing, camping, cooking, and being able to build his own house. However, since his injury, he said he could not sleep well at night, waking often, and he was not able to sit for more than about half an hour at a time. He said he could not stand well and chose more often to walk around for approximately five minutes to relieve pain from sitting. Appellant stated that he had a fifteen-pound lifting limit and that he could not go through an eight-hour day without resting for about an hour a couple times per day. Appellant admitted that he had not made any effort to look for work since he had been released with the rating in September 2001, nor had he sought vocational rehabilitation. Despite his education and intelligence, appellant felt that no one would want to hire him with his limitations.

The medical evidence showed his course of treatment with the anterior and posterior lumbar fusion surgeries and the difficulty he had with chronic pain syndrome. Just prior to his second fusion surgery, in January 2000, one physician opined that appellant demonstrated some symptom magnification and poor voluntary effort upon examination. The medical records subsequent to surgeries showed his continued complaints of pain, and the implantation of the medicine pump. The only record reflecting a doctor's opinion that appellant was permanently disabled was a form filled in to acquire a disabled license plate dated January 12, 2001 (prior to second fusion surgery) stating that appellant was permanently disabled because he needed assistive devices to walk and had to rest after walking one hundred feet. The medical records contained his release and 15 percent rating issued in September 2001, and this is where the medical-record exhibits end. Apparently, appellant moved to Florida shortly after the issuance of a permanent impairment rating.

After performing its de novo review, the Commission, by a vote of two-to-one, found that appellant had not proven by a preponderance of the evidence that he was entitled to any wage-loss disability benefits in excess of the 15 percent rating already paid. Appellant argues on appeal that this finding is not supported by substantial evidence and should be reversed. We disagree.

This court reviews decisions of the Workers' Compensation Commission to determine whether there is substantial evidence to support it. Rice v. Georgia-Pacific Corp., 72 Ark. App. 149, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). We review the evidence and allreasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if its findings are supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue is not whether we might have reached a different decision or whether the evidence would have supported a contrary finding; instead, we affirm if reasonable minds could have reached the conclusion rendered by the Commission. Sharp County Sheriff's Dep't v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001). It is the Commission's province to weigh the evidence and determine what is most credible. Minn. Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).

The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001); Sapp v. Phelps Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998). To be entitled to any wage-loss disability benefit in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that he sustained permanent physical impairment as a result of a compensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000); Smith v. Gerber Prods., 54 Ark. App. 57, 922 S.W.2d 365 (1996). Appellant was issued a 15 percent permanent impairment rating, which was accepted by the employer.

In making the wage-loss disability determination, the Commission should examine the medical evidence, the worker's age, his education, his work experience, and any other matters that may affect future earning capacity, including motivation and attitude about re-entering the work force. Ark. Code Ann. § 11-9-522(b) (Repl. 2002); see also Emerson Elec., supra; Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). The Commission may use its superior knowledge of industrial demands, limitations, andrequirements in conjunction with the evidence to determine wage-loss disability. See Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).

Appellant contends that the Commission erroneously substituted its determinations regarding credibility for that of the ALJ. We disagree in that we do not review the decision of the ALJ but rather we determine whether the Commission's decision is supported by substantial evidence. See, e.g., Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981). In workers' compensation cases, the Commission functions as the trier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988). The credibility of witnesses and any conflict and inconsistency in the evidence is for the Commission to resolve. Warwick Electronics, Inc. v. Devazier, 253 Ark. 1100, 490 S.W.2d 792 (1973). A majority of the Commission is required to reach a decision. See Ark. Code Ann. § 11-9-204(b)(1) (Repl. 1996); see also S & S Constr., Inc. v. Coplin, 65 Ark. App. 251, 986 S.W.2d 132 (1999). Two-to-one decisions are frequently issued by the Commission, and those issued with two Commissioners in agreement are majority decisions. S & S Constr., Inc. v. Coplin, supra.

Appellant suffered a significant injury to his lower back that apparently continues to affect his daily living and affects his ability to do the strenuous activity he once could. Nonetheless, the Commission found that appellant had not proven that he was incapable of earning wages, in the same or any other employment, that he was receiving at the time of the compensable injury. Ark. Code Ann. § 11-9-102(8) (Repl. 2002). Appellant bore the burden to show his earning capacity was harmed to a greater degree than compensated by his permanent impairment rating. This burden of proof was not on the employer. This query necessarily rested on the Commission's evaluation of his age, extensive education, and potential lack of interest in returning to the workforce in any capacity, along with the medicalevidence that ended with the September 2001 rating. Compare to Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).

It is well settled that 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. Foxx v. Am. Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). After consideration of this appeal under the proper standard of review, we affirm.

Affirmed.

Gladwin and Baker, JJ., agree.