Gervis D. Raybon v. Imperial Building Contractors, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

GERVIS D. RAYBON

APPELLANT

V.

IMPERIAL BUILDING CONTRACTORS, INC.

APPELLEE

CA05-863

February 22, 2006

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. F010438]

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this workers' compensation case sustained a compensable hip injury in the course of his employment with appellee. He received medical benefits and permanent-partial disability benefits based on his physical impairment rating of ten percent. He filed a claim for wage-loss disability benefits, asserting that he had sustained wage loss in excess of his permanent-partial impairment rating. After a hearing, the Commission found that he had failed to prove by a preponderance of the evidence that he had sustained a wage loss in excess of his permanent-partial disability rating. On appeal, he argues that the Commission's finding is not supported by substantial evidence. We affirm.

In determining the sufficiency of the evidence to sustain the findings of the Arkansas Workers' Compensation Commission, we review the evidence in the light most favorable to the Commission's findings and affirm if they are supported by substantial evidence. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Farmers

Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). 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. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. 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. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). Where, as here, the Commission has denied a claim because of a failure to show entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979).

The claim in the present case was for wage-loss disability benefits in excess of his permanent-partial disability rating. In considering claims for permanent-partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002).

The Commission found that appellant was fifty years of age; had a high-school diploma; and had eighteen years of experience in construction and heavy equipment operation; two years of experience as a truck driver; and five years of experience as a millwright. The Commission further found that appellant sustained a compensable injury in August 2000 while working for appellee Imperial Building Contractors when a 1,000-pound steel pipe fell on him; that he underwent surgery to repair a hip fracture and recovered well; that he was released to light duty in December 2000; and that he was assigned an anatomical impairment equal to ten percent to the body as a whole in April 2001. The Commission also found that appellant now walks with a cane; is capable of standing for forty-five minutes at a time; is capable of walking about 500 yards at a time; is unable to lift weights, squat, or do other features of his prior work; but is capable of working while sitting down. In addition, the Commission found that appellant was offered light-duty work within his restrictions by appellee but refused to return to work for them; that appellant has worked two jobs since his injury at which he earned more than he had while working for appellee, but that he ultimately quit; that appellant has failed to pursue vocational rehabilitation; and that he is currently receiving Social Security disability benefits of $950 per month. Finally, the Commission found that appellant was capable of working but lacked motivation to do so.

We cannot say that the Commission erred in so finding. In considering factors that may affect an employee's future earning capacity, this court considers the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant's loss of earning capacity. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). In addition, although a claimant's failure to participate in rehabilitation services does not bar his claim, the failure may impede a full assessment of his wage-earning loss by the Commission. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). Here, appellant demonstrated that he was capable of earning the same or greater wages as he had when employed by appellee, and the Commission was not required to believe his testimony that he was unable to continue to do so.

Affirmed.

Glover and Roaf, JJ., agree.