Pyle v. Woodfield, Inc.
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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA08-846
DAVID PYLE
Opinion Delivered April
8, 2009
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION [NO. F504733]
V.
WOODFIELD, INC. AND
RETENTION MANAGEMENT
SERVICES, INC.
APPELLEES
AFFIRMED
RITA W. GRUBER, Judge
David Pyle appeals from the Arkansas Workers’ Compensation Commission’s denial
of his claim for additional benefits. He argues that there is no substantial evidence to support
the Commission’s decision. We find no error and affirm.
Appellant, a truck driver, sustained admittedly compensable knee and back injuries
when he fell off a flatbed trailer while pulling a tarp over his load on May 4, 2005. He was
provided workers’ compensation benefits, including temporary-total disability and medical
treatment. His treating physician, Dr. Jay Lipke, took MRI images of appellant’s back and
knee, and ordered that he stay off work while he was treated with medication, physical
therapy, and epidural steroid injections. Appellant remained off work through December 6,
2005, when Dr. Lipke assigned him a five-percent anatomical impairment rating.
On August 8, 2006, appellant returned to Dr. Lipke with continued problems. The
clinic note of that date includes Dr. Lipke’s impression of “work related back injury with
persistent sciatica” and an order for “a myelogram with CT to follow to see if there is an
operative problem that may relieve [appellant’s] persistent symptoms and allow him to return
to gainful [employment].” In a work-status report, also dated August 8, 2006, Dr. Lipke did
not take appellant off work. In a letter of January 10, 2007, however, appellant’s attorney
requested Dr. Lipke’s signature to confirm that it was reasonable and necessary for appellant
to remain off work pending his additional testing and treatment. Dr. Lipke signed the
attorney’s letter on February 12, 2007. On January 26, 2007, Dr. Fred Murphy reported that
he was providing care to appellant for multiple medical problems, one of which involved back
and knee pain, and that appellant’s “present condition” precluded him from working.
Appellant never returned to any employment. On February 20, 2007, a hearing was
conducted before the administrative law judge on appellant’s claim for additional medical
treatment and for temporary-total disability benefits from August 8, 2006, to a date yet
undetermined. The administrative law judge found that the additional testing Dr. Lipke had
recommended was reasonably necessary and related to appellant’s compensable injuries, but
appellant’s claim for additional temporary-total disability was rejected based on a finding that
he failed to prove a total incapacity to earn wages due to his compensable injury. The
Commission affirmed and adopted the law judge’s opinion in a 2-1 decision.
Appellant contends on appeal that the Commission rejected unrebutted testimony
from two physicians that he was unable to work. He argues that because additional testing
has been found necessary, he has entered a second healing period that will not end until Dr.
Lipke releases him from the second round of care.
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When an injured employee is totally incapacitated from earning wages and remains in
his healing period, he is entitled to temporary-total disability. K II Constr. Co. v. Crabtree, 78
Ark. App. 222, 79 S.W.3d 414 (2002). The healing period ends when the employee is as far
restored as the permanent nature of his 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 question of when the healing period
has ended is a factual determination for the Commission that will be affirmed if it is supported
by substantial evidence. Id.
In determining the sufficiency of the evidence to support decisions of the Commission,
we view the evidence and all reasonable inferences deducible therefrom in the light most
favorable to the Commission’s findings and affirm if they are supported by substantial
evidence, i.e., evidence that a reasonable person might accept as adequate to support a
conclusion.
Singleton v. City of Pine Bluff, 97 Ark. App. 59, 198 S.W.3d 134 (2006).
Although it is within the province of the Commission to weigh conflicting medical evidence,
the Commission may not arbitrarily disregard medical evidence or the testimony of any
witness. Roberts v. Whirlpool, 102 Ark. App. 284, --- S.W.3d ---- (2008). Where, as here,
the Commission has denied a claim because of the claimant’s failure to meet his burden of
proof, the substantial-evidence standard of review requires that we 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).
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There was evidence before the Commission that appellant suffered from numerous,
severe medical conditions unrelated to his work injury. Appellant was morbidly obese; was
a recovering alcoholic and recovering user of intravenous heroin and other sorts of illegal
drugs, including crack cocaine and methamphetamine; suffered from diabetes, cirrhosis, and
hepatitis C and needed a liver transplant; and suffered from a seizure disorder, bipolar disorder,
and chronic and severe depression with suicidal ideations. Dr. Lipke stated that appellant
would reach maximum medical improvement as of January 1, 2006, and attributed appellant’s
inability to work to a seizure condition rather than to his compensable work-related injuries.
Dr. Lipke’s subsequent off-work recommendation was in response to a direct request by
appellant’s attorney, who asked that appellant be assigned off-work status pending additional
testing; Dr. Lipke simply signed the letter without expressing any reason for taking appellant
off work.
Appellant’s arguments go to the weight and interpretation of the medical evidence,
which were matters for the Commission. The Commission acknowledged the off-work slip
Dr. Lipke signed at the request of appellant’s attorney on February 12, 2007, but noted that
Dr. Lipke had not taken appellant off work on August 8, 2006. It was up to the Commission,
as finder of fact, to consider these two somewhat inconsistent acts and to determine if
appellant was unable to work because of his compensable injury. Likewise, the Commission
was required to weigh its resolution of this issue against Dr. Murphy’s opinion that appellant’s
“condition” precluded him from working. Viewing the evidence in the light most favorable
to the Commission’s findings, as we must, we cannot say that the Commission’s explanation
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for its decision did not constitute a substantial basis for denial of relief. See Williams v.
Arkansas Oak Flooring Co., supra.
Affirmed.
B AKER, J., agrees.
P ITTMAN, J., concurs.
P ITTMAN, J., concurring. I agree with Judge Gruber’s opinion in all respects. I write
separately only to state my concern with the increasing tendency of appellants in workers’
compensation cases to argue for reversal on the ground that the Commission has arbitrarily
disregarded evidence favorable to the party with the burden of proof.
Appellant’s sufficiency argument is based on a line of cases by our court stating that the
Commission cannot “arbitrarily disregard” evidence. Certainly, this is true. The Commission
cannot disbelieve the testimony of a witness for an irrational or whimsical reason; for example,
it cannot decide a case on the rationale that witnesses with names beginning in vowels are
never credible, or that foreign-born doctors always offer more accurate medical opinions, or
that back injuries are never work-related.1
Arbitrary disregard of evidence is also
1
In order for an administrative action to be invalid as arbitrary, the action must
either lack any rational basis, or hinge on a finding of fact based on erroneous view of the
law. Pine Bluff for Safe Disposal v. Arkansas Pollution Control and Ecology Commission, 354
Ark. 563, 127 S.W.3d 509 (2003); Arkansas Professional Bail Bonding Licensing Board v.
Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). An arbitrary act is thus an illegal or
unreasoned act; an act is not arbitrary simply because the reviewing court would have
acted differently. Woodyard v. Arkansas Diversified Insurance Co., 268 Ark. 94, 594 S.W.2d
13 (1980).
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demonstrated where the Commission affirmatively states that there is “no evidence” for a
proposition when such evidence has in fact been presented in the proceeding. See Edens v.
Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001).
Just as certainly, however, the prohibition on arbitrary decision-making has sometimes
been seen as an opportunity for the appellate court to weigh evidence not relied upon by the
Commission against the evidence that the Commission chose to believe. This view is
mistaken. Under the substantial-evidence standard that we are statutorily bound to employ,
we may not even consider evidence that the Commission did not rely upon, much less weigh
it against evidence that the Commission found credible, unless the appellant has demonstrated
that the Commission ignored that evidence for a reason that was truly arbitrary in the sense
of those mentioned in the examples given above. See, e.g., Woodall v. Hunnicutt Construction,
340 Ark. 377, 12 S.W.3d 630 (2000); Maupin v. Pulaski County Sheriff's Office, 90 Ark. App.
1, 203 S.W.3d 668 (2005); K II Construction Company v. Crabtree, 78 Ark. App. 222, 79
S.W.3d 414 (2002); Hardin v. Southern Compress Co., 34 Ark. App. 208, 810 S.W.2d 501
(1991). To do so, the appellant bears the heavy burden of proving that the Commission's
action was a willful and unreasoned one, made without consideration, and with a disregard
of the facts or circumstances of the case. Beverly Enterprises-Arkansas., Inc. v. Arkansas Health
Services, 308 Ark. 221, 824 S.W.2d 363 (1992). Proving that mere error has occurred is not
sufficient to meet this test. Woodyard v. Arkansas Diversified Insurance Co., 268 Ark. 94, 594
S.W.2d 13 (1980); Bryant v. Arkansas Public Service Commission, 55 Ark. App. 125, 931 S.W.2d
795 (1996). The questions of substantial evidence and arbitrary action are therefore different
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ones, judged by different standards, and, although it is for the courts to say whether there has
been an arbitrary or unwarranted agency action, considerable judicial restraint should be
observed in finding such an abuse. See Russellville Water Co. v. Public Service Commission, 270
Ark. 584, 606 S.W.2d 552 (1980).
Nothing is involved in this case but a question of credibility. Dr. Lipke said that
appellant reached maximum medical improvement and released him for work subject only
to his recovery from seizure disorders that were not related to his compensable injury. Later,
at the request of appellant’s attorney, Dr. Lipke removed appellant from work status pending
additional testing without specifying the reason for appellant’s inability to work.
The
Commission, as finder of fact, was required to consider these two somewhat inconsistent acts
and determine whether appellant was unable to work because of his compensable injury.
There is nothing before us to show that the Commission’s determination of this issue was a
willful and unreasoned one, made without consideration of the facts and circumstances of the
case.
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