Marty Powers v. City of Fayetteville Municipal League WCT

Annotate this Case
ca05-297

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

MARTY POWERS

APPELLANT

v.

CITY OF FAYETTEVILLE MUNICIPAL LEAGUE WCT

APPELLEE

CA05-297

OCTOBER 12, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F208606]

REVERSED AND REMANDED

Karen R. Baker, Judge

Retired Fayetteville firefighter Martin Powers brings this appeal from a decision of the Arkansas Worker's Compensation Commission (Commission) denying his claim for hearing loss. While Arkansas Code Ann. ยง 11-9-102(4)(A)(ii)(c)(Supp. 2003), recognizes hearing loss as a compensable injury, the Commission found that the claimant failed to establish that his hearing loss was supported by objective medical evidence that was not under his voluntary control. Because the existence and extent of the appellant's hearing loss was stipulated to and accepted as fact by the Commission, the decision is reversed.

Appellant Powers began working for the Fayetteville Fire Department in 1986 and first sought medical treatment for hearing problems with ear, nose, and throat specialist Dr. Thermon Crocker in 1992. Dr. Crocker ordered audiological diagnostic testing for the appellant again in 1995, 1998, and 2001. Dr. Crocker testified that the appellant's hearing deteriorated from 1992 through 2001, although he was not entitled to an impairment rating until 2001. Dr. Crocker also testified that

while he considered the impact of other causation factors for the injury such as guns, power tools, and loud music, his opinion within a reasonable degree of medical certainty was that the appellant's hearing loss resulted from exposure to occupational noise as a firefighter.

Appellant filed a claim for workers' compensation on July 31, 2002. Stipulations were made by appellant and appellees at a pre-hearing conference before the administrative law judge (ALJ) that included an agreement that the appellant had hearing loss at the impairment level of 9.4%. Although the ALJ accepted this stipulation as fact in the course of rendering its opinion, it nevertheless determined that the appellant failed to prove the existence of a compensable injury because of the lack of objective findings. The ALJ found that the diagnostic testing relied upon by the appellant was within the voluntary control of the patient and therefore cannot be considered an objective finding that would satisfy the statutory requirement for compensable injuries. Appellant appealed the ALJ's denial of benefits to the Commission, which affirmed and adopted ALJ's decision. This appeal followed.

When an appeal is taken from the denial of a claim by the Worker's Compensation Commission, the substantial-evidence standard of review requires that we affirm the Commission's decision if its opinion contains a substantial basis for the denial of relief. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). In determining the sufficiency of the evidence to support the findings of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if those findings are supported by substantial evidence. Winslow v. D.B. Mech. Contrs., 69 Ark. App 285, 13 S.W.3d 180 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). There may be substantial evidence to support the Commission's decision even though the appellate court might have reached a different conclusion if it had sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001). When the Commission weighs medical evidence and the evidence is conflicting, its resolution is a question of fact for the Commission. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

The appellate court reviews the decision of the Commission and not that of the ALJ. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). Yet because the decision, findings, and conclusions of the ALJ were adopted by the Commission we will consider both orders in our review. Swaim v. Wal-Mart Assocs., Inc., ___Ark. App.___, ___S.W.3d___(May 25, 2005).

The decision of the ALJ to deny benefits-accepted in its entirety by the Commission-focused exclusively on the "voluntary control" aspect of testing. Despite stipulations that agreed to the existence of the hearing loss, and testimony by Dr. Crocker and audiologist Lewis McGrail that it was extremely difficult if not impossible to consistently "fake" the audiological testing, the ALJ determined that the results were dependent upon the responses of the patient and therefore could not meet the statutory requirements for objectivity required to establish the existence of a compensable injury.

The appellees stipulated to the existence and extent of the appellant's hearing loss, including a definite impairment level. A stipulation is "an agreement between the attorneys respecting the conduct of the legal proceedings." Dinwiddie v. Syler, 230 Ark. 405, 323 S.W.2d 548 (1959). That agreement is the equivalent of undisputed proof and leaves nothing for the fact finder to decide as to the stipulated matter. Brown v. Keaton, 232 Ark. 12, 334 S.W.2d 676 (1960). We held in Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983), that when the parties stipulate to certain facts, neither the ALJ nor the Commission may ignore that stipulation and to decide the matter on an issue which, because of the stipulation, had not been fully developed by the parties or upon which they had not introduced proof. The only exception is when the ALJ or Commission gives notice of their intent to do so and afford an opportunity to offer proof on that issue. Id. Here, the ALJ accepted this stipulation as fact, and the Commission in turn explicitly accepted and adopted the ALJ's findings of fact in its decision. Therefore, the Commission's denial of benefits based on the rejection of audiological testing to objectively establish a compensable injury is without a rational basis.

While the existence of a compensable injury was stipulated to and accepted as fact, a causal relationship must still be proven. It is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony in making a decision to grant or deny benefits. Williams v. Prostaff Temporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998). Also to be determined upon remand are the remaining issues raised by the appellants in litigation before the ALJ: the statute of limitations; medical bills; permanent partial disability benefits; and attorney fees. Since neither the ALJ nor the Commission addressed these issues we will not do so here.

Because there was not substantial evidence to support the Commission's decision to deny benefits on the basis stated in the opinion, we reverse and remand for a determination of fact concerning a causal relationship between the appellant's hearing loss and his employment, as well as a determination of all other issues raised by the parties.

Bird and Roaf, JJ., agree.