Gaither Appliance v. Ricky Stewart
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CA07-878
GAITHER APPLIANCE
Opinion Delivered
October 22, 2008
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION [NO. F403161]
V.
RICKY STEWART
APPELLEE
AFFIRMED IN PART; REVERSED IN
PART; AND REMANDED
JOHN MAUZY PITTMAN, Chief Judge
1.
WORKERS’ COMPENSATION – SUFFICIENCY ARGUMENT WENT TO WEIGHT AND CREDIBILITY
APPELLATE COURT WOULD NOT REVERSE THE COMMISSION .– Appellant’s argument that
evidence was insufficient to support the Workers’ Compensation Commission’s finding of
a twelve-percent anatomical impairment went to the weight and credibility of the evidence
rather than to its sufficiency; the Commission simply chose to believe the testimony of one
physician rather than the other; in such circumstances, the appellate court is powerless to
reverse the Commission.
2.
WORKERS’ COMPENSATION – SUFFICIENCY ARGUMENT WENT TO WEIGHT AND CREDIBILITY
– SUCH QUESTIONS ARE WITHIN THE EXCLUSIVE PROVINCE OF THE COMMISSION .– Appellant’s
argument that evidence was insufficient to sustain the Commission’s award of additional
medical treatment for pain management was premised on the assertion that appellee’s
impairment was the result of his preexisting condition; this went to the weight and credibility
of the evidence regarding the cause of appellee’s impairment; despite appellant’s contention
that one of the medical opinions was entitled to more weight, a different medical opinion that
the compensable injury was the major cause of appellee’s anatomical impairment was
substantial evidence to support the Commission’s finding to that effect.
3.
WORKERS’ COMPENSATION – THERE WAS EVIDENCE THAT A PLAN OF REHABILITATION WAS
OFFERED TO CLAIMANT – COMMISSION ’S AWARD OF WAGE -LOSS BENEFITS WAS REVERSED .–
The appellate court has held that Ark. Code Ann. § 11-9-505(b)(3) does not require that
every claimant must formally file for rehabilitation with the Commission or waive
entitlement to disability benefits where there is no evidence that a “plan of rehabilitation”
was offered; here, however, given the undisputed evidence that the claimant was contacted
by appellant’s vocation rehabilitation specialist but refused to speak to her until after the
hearing was concluded, the only reasonable conclusion to be drawn was that a rehabilitation
plan existed and that the claimant manifested an unwillingness to cooperate; therefore, the
Commission’s award of wage-loss benefits in excess of the claimant’s anatomical
impairment was reversed.
Appeal from the Arkansas Workers’ Compensation Commission; affirmed in part; reversed
in part; and remanded.
Frye Law Firm, P.A., by: Cynthia E. Rogers, for appellant.
Dodson & Dodson, LLP, by: Nelson V. Shaw, for appellee.
Appellee sustained an admittedly compensable neck injury while employed by
appellant in March 2004. After some benefits were paid, appellee filed a claim seeking
permanent partial disability benefits, wage-loss disability benefits, and additional medical
benefits. The Commission found that appellee had proven that he sustained an anatomical
impairment of twelve percent, wage-loss disability of fifteen percent, and entitlement to
additional medical treatment, including pain management. The Commission also found that
the Second Injury Fund had no liability for payment of the benefits awarded to appellee. On
appeal, appellant argues that there is no substantial evidence to support the findings of a twelve
percent anatomical impairment, entitlement to wage-loss benefits, or entitlement to additional
medical treatment. We affirm the anatomical-impairment and medical-benefits awards.
However, we find merit in the challenge to the wage-loss benefits and reverse that part of the
award.
When the sufficiency of the evidence is contested on appeal in a workers’
compensation case, we view the evidence in a light most favorable to the Commission's
findings and affirm if the findings are supported by substantial evidence. Patterson v. Arkansas
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CA07-878
Insurance Department, 343 Ark. 255, 33 S.W.3d 151 (2000). Substantial evidence is evidence
that a reasonable mind might accept as adequate to support a conclusion. Id. There may be
substantial evidence to support the Commission's decision even though we might have
reached a different conclusion if we had sat as the trier of fact or heard the case de novo; in
other words, 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 conclusion
of the Commission. Id.
Appellant first argues that the evidence was insufficient to support a finding of twelvepercent anatomical impairment.
This argument goes to the weight and credibility of the
evidence rather than to its sufficiency. Dr. Safman opined that appellee sustained anatomical
impairment of twelve percent as a result of his compensable injury. Dr. Cavanaugh stated that
he believed any anatomical impairment was chiefly the result of appellee’s preexisting disease
of the cervical spine. Here, the Commission simply chose to believe the testimony of one
physician rather than the other. In such circumstances, we are powerless to reverse the
Commission. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987).
Appellant next argues that the evidence was insufficient to sustain the Commission’s
award of additional medical treatment for pain management. This argument is premised on
appellant’s assertion that appellee’s impairment was the result of his preexisting condition;
consequently, this, too, goes to the weight and credibility of the evidence regarding the cause
of appellee’s impairment. However, questions concerning the credibility of witnesses and the
weight to be given to their testimony are within the exclusive province of the Commission.
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Arkansas Department of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). It is the
responsibility of the Commission to draw inferences when the testimony is open to more than
a single interpretation, whether controverted or uncontroverted, and when it does so, its
findings have the force and effect of a jury verdict. Id.
As we held with respect to the
previous point, despite appellant’s contention that the opinion of Dr. Cavanaugh was entitled
to more weight, Dr. Safman’s opinion that the compensable injury was the major cause of
appellee’s anatomical impairment is substantial evidence to support the Commission’s finding
to that effect.
Finally, appellant argues that appellee waived his right to any wage-loss benefits
because he refused to participate in “an offered program of rehabilitation.” See Ark. Code
Ann. § 11-9-505(b)(3) (Repl. 2002). There was evidence that appellee refused to talk to
Heather Naylor, a vocational rehabilitation specialist employed by appellant, explaining that
he declined to speak to her until “after January,” i.e., after the hearing before the
administrative law judge. At the hearing, appellee was asked by appellant’s counsel whether
he understood that he was “waiving rehabilitation” by “coming here today and asking for
permanent disability,” to which appellee answered, “That’s fine by me.” The Commission
nevertheless found that no waiver occurred because the above-quoted question was an
incorrect statement of the law and because no specific program of rehabilitation was ever
offered to appellee.
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In Burris v. L & B Moving Storage, 83 Ark. App. 290, 123 S.W.3d 123 (2003), we
upheld the Commission’s construction of the statutory-waiver provision.
There, the
Commission’s opinion stated that:
Despite counsel's stipulation that the respondents had "offered vocational
rehabilitation," there was no testimony indicating what sort of rehabilitation
was offered the claimant. Nor was there any record of consultation with a
vocational counselor or any other offer of vocational rehabilitation. In order
to rely upon Ark. Code Ann. § 11-9-505(b)(3) in foreclosing the claimant's
entitlement to permanent partial disability, the respondents must show that the
claimant refused to participate in a program of vocational rehabilitation or job
placement assistance, or, through some other affirmative action, indicated an
unwillingness to cooperate in those endeavors.
Burris, 83 Ark. App. at 296, 123 S.W.3d at 127.
Arkansas Code Annotated section 11-9-505(b)(3) provides that:
The employee shall not be required to enter any program of vocational
rehabilitation against his or her consent; however, no employee who waives
rehabilitation or refuses to participate in or cooperate for reasonable cause with
either an offered program of rehabilitation or job placement assistance shall be
entitled to permanent partial disability benefits in excess of the percentage of
permanent physical impairment established by objective physical findings.
We have held that the statute does not require that every claimant must formally file for
rehabilitation with the Commission or waive entitlement to disability benefits where there
is no evidence that a “plan of rehabilitation” was offered. Second Injury Fund v. Furman, 60
Ark. App. 237, 961 S.W.2d 787 (1998). Here, however, given the undisputed evidence that
appellee was contacted by appellant’s vocational rehabilitation specialist but refused to speak
to her until after the hearing was concluded, we think that the only reasonable conclusion to
be drawn was that a rehabilitation plan existed and that appellee manifested an unwillingness
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to cooperate. Therefore, we reverse the Commission’s award of wage-loss benefits in excess
of appellee’s anatomical impairment.
Affirmed in part; reversed in part; and remanded.
M ARSHALL and H EFFLEY, JJ., agree.
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