Advanced Auto Parts and Royal & Sunalliance v. Delois Lee

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ADVANCED AUTO PARTS, ROYAL and SUNALLIANCE

APPELLANTS

V.

DELOIS LEE

APPELLEE

CA05-784

February 1, 2006

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION COUNTY COURT

[F214212]

AFFIRMED

Robert J. Gladwin, Judge

Appellants Advanced Auto Parts (employer) and Royal & Sunalliance (carrier) bring this appeal from the May 17, 2005 decision of the Workers' Compensation Commission (Commission) affirming and adopting the administrative law judge's (ALJ) findings that appellee Delois Lee is entitled to (1) reinstatement of temporary-total disability benefits commencing on May 23, 2003, and continuing until December 5, 2003, and (2) ongoing medical benefits, including a cane prescribed by Dr. Harold Chakales. On appeal they argue that there is no substantial evidence to support the Commission's findings. We affirm.

Appellee sustained an admittedly compensable injury arising out of and during the course and scope of her employment on December 5, 2002. Appellant was working for appellant/employer on that evening, at which time two armed men entered the premises near closing time with the intent to commit a robbery. One of the assailants grabbed appellee around the neck and dragged her to the back of the store while he aimed a gun at her head. She subsequently witnessed the other assailant shoot her supervisor multiple times, eventually killing him, prior to the assailants' completing the robbery.

As to her physical injuries, appellee initially sought treatment for pain in her neck, left shoulder, and upper back from Dr. Harold Chakales on December 23, 2002.1 He found that she was temporarily-totally disabled at that time and prescribed physical therapy. The therapy was discontinued on her next visit on January 10, 2003, because it was aggravating her condition. Appellee also suffered significant psychological trauma as a result of the assault, including post traumatic stress disorder, and she initially saw Dr. Bobby Cowherd for those psychological injuries.

Appellant/carrier apparently became involved at about this time and required appellee to be evaluated by Dr. Bruce Safman on February 24, 2003. He reviewed her MRI results, which showed multiple degenerative changes, but no evidence of disk protrusion was noted. Appellee was still experiencing neck and shoulder pain at that time, and Dr. Safman's report from that date noted that appellee was markedly tight in her upper trapezius muscles bilaterally with tenderness in those muscles and in her scapula as well as the biceps tendon of her left shoulder. He also noted that appellee appeared to be extremely depressed and very anxious. His impression at the time was that she was suffering from a cervical strain, an upper trapezius strain, levator scapular tendonitus, and biceps tendinitis, and Dr. Safman recommended that she remain off work at that time.

Appellee saw Dr. Safman again on March 10, 2003, at which time he noted that "psychiatric problems primarily and to a lesser degree physical problems preclude her from returning to work. Therefore, just based on her physical problems, I would return her to light duty." Dr. Safman did release appellee to limited duty work with a ten-pound lifting restriction on March 24, 2003. His notes from that date reported that her affect was bettervand that she was smiling and communicating. This was the last time appellee sought treatment from Dr. Safman.2

On March 31, 2003, appellant/employer advised appellee that because her leave of absence had exceeded twelve weeks, her "job protection" had ended as of March 24, 2003, and accordingly, she was no longer employed by the company. Appellants urged appellee to seek an evaluation from Dr. Judy White-Johnson, a clinical psychologist. She conducted an MMPI-2 test on appellee, which yielded a valid and interpretable clinical profile. Dr. White-Johnson opined that "a behaviorally oriented goal directed plan needs to be in place with a set time to return to work." That was the extent of appellee's evaluation and treatment from Dr. White-Johnson; however, she subsequently did work with Dr. Brenda Smith, a social worker, and Dr. Kay Cogbill, a clinical psychologist, for continuing treatment of her psychological issues. Appellants assert that appellee was not complying with these professionals' directions with regard to returning to a normal life, but various progress notes indicate that appellee was making attempts to (1) leave her house more, and (2) make additional contact with the general public, and that she was gradually making improvements.

Appellee also continued to receive treatment for her physical injuries from Dr. Chakales, which included medication for muscle spasms, trigger point injection therapy, and a prescription for a cane to help her unsteady gait. His progress notes indicated that appellee continued to be disabled because of her physical condition, and he continued to generate "off-work slips" continuing through to his December 2003 release of appellee.

Appellants accepted the claim as compensable and paid appropriate benefits, including temporary-total disability benefits, through May 22, 2003, but they controverted any claimsbeyond that point for both medical treatment and additional temporary total disability benefits. A hearing was held before the ALJ on April 1, 2004, and she determined that appellee was entitled to (1) reinstatement of temporary total disability benefits commencing on May 23, 2003, and continuing until December 5, 2003, and (2) ongoing medical benefits, including a cane prescribed by Dr. Chakales. Appellants appealed to the Commission, and the ALJ's decision was affirmed and adopted. From that decision comes this appeal.

Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods S. W., 70 Ark. App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ's opinion as its own, which it is permitted to do under Arkansas law. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. See id. Therefore, for purposes of our review, we consider both the ALJ's order and the Commission's majority order.

In reviewing decisions from 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 the decision is supported by substantial evidence. Smith v. City of Fort Smith, 84 Ark. App. 430, 143 S.W.3d 593 (2004). If reasonable minds could reach the conclusion of the Commission, its decision must be affirmed. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). We cannot undertake a de novo review of the evidence and are limited by the standard of review in these cases. Id. The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Oak GroveLumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or not; and when it does so, its findings have the force and effect of a jury verdict. Id. The Commission is not required to believe the testimony of any witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief; once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Logan County v. McDonald, __ Ark. App. __, __ S.W.3d __ (Apr. 6, 2005). Speculation and conjecture cannot substitute for credible evidence. Smith-Blair, Inc. v. Jones, supra.

Temporary total disability is awarded for that part of the healing period in which an employee suffers a total incapacity to earn wages. K II Constr. Co. v. Crabtree, supra. When an injured employee is totally incapacitated from earning wages and remains in her healing period, she is entitled to temporary total disability. Id. The healing period ends when the employee is as far restored as the permanent nature of her injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id. The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). These are matters of weight and credibility, and thus lie within the exclusive province of the Commission. Id.

Appellants contend that, because Dr. Safman released appellee to restricted duty in March 2003, she must be arguing that she was psychologically unable to continue working after that time. They further assert that Dr. Chakales's October 29, 2003 deposition testimony supports that appellee was "orthopedically ready to go back to work" and that it was her emotional overlay that was preventing her return to employment. Dr. Chakales admitted that a psychiatrist, rather than an orthopedist, was the appropriate person to make a determination as to appellee's psychological fitness related to returning to work. Appellants argue that appellee provided no reports from her treating psychologists and mental health professionals to support the claim that her post-traumatic stress disorder and related psychological problems prevented her from being able to return to employment as released by Dr. Safman. They strongly rely on reports from Dr. White-Johnson and Dr. Souheaver, who evaluated appellee neuropsychologically on December 15, 2003, that appellee magnified or overly endorsed her psychiatric symptoms. This is a subjective issue that deals with credibility and resolution of conflicting medical opinions and, accordingly, was better left to the Commission to determine. See

Oak Grove Lumber Co. v. Highfill, supra.

Additionally, appellants state that appellee failed to show that her lingering low-back symptoms were related to the December 2002 incident. She was initially treated for neck, shoulder, and upper back complaints, and did not report lower-back complaints until June 9, 2003. They argue that any disability attributable to her lower-back complaints are unrelated to the work-related injury and should not be used as a basis for the award of additional temporary-total disability benefits.

Finally, appellants raise the issue of the statutory limitation of compensability for a mental injury or illness found at Ark. Code Ann. § 11-9-113(b)(1), which provides in part that "[n]otwithstanding any other provision of this chapter, where a claim is by reason of mental injury or illness, the employee shall be limited to twenty-six (26) weeks of disability benefits." They assert that, even if appellee had shown she was entitled to benefits beyond March 2003, the date of her release by Dr. Safman, which related to the physical injuries, she would not be entitled to benefits by reason of mental injury or illness beyond twenty-six weeks following her injury. Without disregarding the language of the statute, we hold that there is sufficient evidence of physical problems, such as the muscle spasms and unsteady gait, that were related to the work-related injury to support the Commission's finding that she did not reach maximum medical recovery until December 5, 2003.

To reiterate, the determination of the credibility and the weight to be given a witness's testimony is within the sole province of the Commission. Smith-Blair, Inc. v. Jones, supra. It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Williams v. Brown's Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). It was for the Commission to resolve any conflicting medical evidence, and this court will not disturb its findings regarding issues of credibility. Id. The mere fact that the Commission afforded greater weight to the credible testimony of appellee and the corroborating medical records in this matter is not, in and of itself, grounds for reversal. The medical evidence supporting the awards of additional temporary-total disability benefits and medical benefits is somewhat tenuous, in that there were greater psychological issues affecting her return to work than physical ones after a given amount of time. This issue would have been more easily resolved had we been presented with clear-cut evaluations from those individuals treating those psychological issues; however, there is substantial evidence to support the Commission's findings. Additionally, as to whether there was a continued need for the cane prescribed by Dr. Chakales, the determination as to whether it was reasonably necessary was an issue for the Commission, and we affirm on this point as well.

Affirmed.

Bird and Vaught, JJ., agree.

1 Appellee asserts that she was told by representatives of appellant/employer to seek treatment from whomever she chose.

2 There is a reference to an opinion filed on August 28, 2003, in which ALJ Dail Stiles ruled that appellants could not require appellee to seek treatment from their physicians, and at that point it appears that she returned to treatment with her previous physicians. This also seems to apply to the physicians treating her psychological issues as well.