Pat Salmon & Sons, Inc. v. Pate
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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA08-742
Opinion Delivered
April 15, 2009
PAT SALMON & SONS, INC.
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION [NO. F302078]
V.
RICKY C. PATE, SECOND INJURY
FUND, AND DEATH &PERMANENT
DISABILITY FUND
APPELLEES
AFFIRMED
JOHN MAUZY PITTMAN, Judge
This workers’ compensation case involves compensability for physical and mental
injuries sustained by a fifty-eight-year-old truck driver when he was forced off the road by
another semi that turned into his vehicle. On direct appeal, the appellant employer argues
that the Arkansas Workers’ Compensation Commission erred in finding that the appellee
employee sustained a nineteen-percent anatomical impairment as a result of his shoulder
injury, in finding that the employee sustained a sixty-percent wage-loss disability, and in
finding that the Second Injury Fund was not liable for payment of any permanent disability
benefits attributable to wage loss. On cross-appeal, the employee argues that the Commission
erred in rejecting his claim that the statutory limitation of disability benefits to twenty-six
weeks for mental injury or illness is unconstitutional; that, in any event, he was entitled to
twenty-six weeks of disability benefits for his mental injury in addition to the more-thantwenty-six weeks of temporary-total disability he had already received; and that the
Commission erred in finding that he was not permanently and totally disabled as a result of
his compensable injuries. We affirm.
The first three issues to be decided are challenges to the sufficiency of the evidence to
support the Commission’s findings of fact. 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 affirm if
they are supported by substantial evidence, i.e., evidence that a reasonable person might accept
as adequate to support a conclusion. Morales v. Martinez, 88 Ark. App. 274, 198 S.W.3d 134
(2004). 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. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d
93 (2002).
Questions of weight and credibility are within the sole province of the
Commission, which is not required to believe the testimony of the claimant or of any other
witness, but may accept and translate into findings of fact only those portions of the testimony
it deems worthy of belief. Strickland v. Primex Technologies, 82 Ark. App. 570, 120 S.W.3d 166
(2003). Once the Commission has made its decision on issues of credibility, the appellate
court is bound by that decision. Id.
With regard to the Commission’s finding of the extent of appellee’s anatomical
impairment, appellant employer argues that the evidence does not support a finding of
nineteen-percent anatomical impairment because the twenty-five-percent anatomical
impairment rating assigned by Dr. J.K. Smeltz included thirteen percent for range of motion,
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which cannot properly be considered in determining the extent of an impairment. It is true
that range-of-motion tests that are susceptible to the patient’s control may not be considered
in determining compensability, see Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772
(2001). Here, however, the Commission expressly stated that it was basing its finding of
anatomical impairment not on the range-of-motion studies, but instead on the thirty-twopercent impairment rating to the upper extremity assigned for the employee’s joint-resection
surgery. Reduced to its simplest terms, the employer’s argument is that the thirty-twopercent upper extremity impairment rating (from which the finding of nineteen percent
whole-body impairment was derived) is excessive because Dr. Earl Peeples said that it was
excessive. This is simply an issue of credibility, which provides no basis for reversal in
workers’ compensation appeals. It is well established that, in determining whether there is
substantial evidence to support a finding of the Commission, the appellate court must consider
only that evidence that is most favorable to the Commission’s finding, and interpret it and all
reasonable inferences deducible therefrom in the light most favorable to those findings.
Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977). Unless it can be
said that a physician’s testimony was utterly without probative value, the question is one of
the weight of the evidence rather than the substantiality thereof, see id., and we are powerless
to reverse the Commission’s finding when it chooses to believe the testimony of one
physician rather than that of another. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201
S.W.3d 449 (2005).
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Next, appellant employer asserts that the Commission’s finding of sixty-percent wageloss disability was “simply baseless,” without “real justification or opinion to support it.” We
disagree. In support of its finding, the Commission considered the employee’s nineteenpercent anatomical impairment resulting from his shoulder injury; the fact that the employee
was terminated following his accident although he was not issued a citation for the incident;
the employee’s age of fifty-nine and the likelihood that he will be unable to return to his life’s
work as a commercial truck driver; and the admitted fact that the employee suffered a
psychological injury as a result of the accident. The Commission’s finding is thus squarely
based on the wage-loss factors enunciated in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685
(1961), and its opinion contains an adequate discussion of the rationale that underlies that
finding.
Appellant employer also contends that the evidence does not support the finding that
the Second Injury Fund bears no liability in this case. It argues that the Fund must necessarily
bear some liability because of the employee’s preexisting injuries and medical conditions,
notably a low-back injury sustained in 1982 for which he was assigned a five-percent physical
impairment rating. This is simply not logical because it takes no account of the possibility that
the employee’s compensable injury was of itself sufficient to cause the employee’s wage-loss
disability without regard to his previous condition.
Second Injury Fund liability becomes a question only when (1) the employee has
suffered a compensable injury at his present place of employment, (2) the employee had a
prior permanent disability or impairment when he sustained the most recent injury, and (3)
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the prior disability or impairment combined with the recent compensable injury to produce
the employee’s current disability status. Mid-State Construction Co. v. Second Injury Fund, 295
Ark. 1, 746 S.W.2d 539 (1988). Here, the Commission found that the employee’s nineteenpercent physical impairment rating was not shown to have combined with the prior
impairment. It based this finding on evidence that the employee was able to return to gainful
full employment after the prior injury and impairment rating; that the employee attributed
all of his disability to the latest injury; and the lack of any testimony or documentary evidence
to show that the current impairment rating resulted from a combination of the present and
prior disability. We cannot say that this is not a substantial basis for finding that the Fund
bears no liability in this case. See Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590
S.W.2d 328 (Ark. App. 1979).
On cross-appeal, appellee/cross-appellant argues that the limitation in Ark. Code Ann.
§ 11-9-113(b)(1) (Repl. 2002), allowing an employee only twenty-six weeks of disability
benefits for a claim based on a mental injury or illness, is unconstitutional because there is no
rational basis for treating mental injuries differently than physical injuries in this regard. This
argument is premised on article 2, section 3 of the Arkansas Constitution, which guarantees
equality before the law. The standard for determining constitutionality in such cases is
whether the General Assembly acted in an arbitrary manner to separate one class of persons
from another, and the rational-basis test is applied to determine whether such a separation is
arbitrary. See Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002). We think that there is
a rational and legitimate public purpose for distinguishing between mental and physical
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injuries in this manner because mental injuries often cannot be confirmed by objective
findings, and there is thus a greater potential for fraudulent claims being advanced, causing
needless expense for taxpayers and employers alike. We also think that the General Assembly
could reasonably decide that permitting more extensive benefits for mental injuries would act
as a disincentive for workers suffering from legitimate mental injuries to devote themselves
fully to psychological or psychiatric treatment and recovery. We hold that the limitation
imposed by the statute does not violate Arkansas Constitution article 2, § 3.
Next, appellee/cross -appellant argues that, although he has already received more than
twenty-six weeks of temporary-total disability benefits, he is entitled to an additional twentysix weeks of benefits for his mental injury. We do not agree. Arkansas Code Annotated
section 11-9-113(b)(1) provides 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.” The statute is clearly designed to limit the
duration of compensation for mental injuries, not to extend it beyond that to which the
claimant is already entitled.
Finally, appellee/cross-appellant argues that the Commission erred in failing to find
that he was permanently and totally disabled. This argument goes only to the weight of the
evidence on this point, rather than to its sufficiency, and therefore states no grounds for
reversal. Barksdale Lumber Co. v. McAnally, supra.
Affirmed on direct appeal; affirmed on cross-appeal.
G RUBER, J., agrees.
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B AKER, J., concurs.
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