Harrison v. Street & Performance, Inc. , 533 S.W.3d 648 ( 2017 )

Cite as 2017 Ark. App. 611
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-201
LARRY L. HARRISON Opinion Delivered: November 15, 2017
APPELLANT/CROSS-APPELLEE APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G407090]
STREET & PERFORMANCE, INC., AND
LIBERTY MUTUAL GROUP
AFFIRMED ON DIRECT APPEAL
APPELLEES/CROSS-APPELLANTS AND ON CROSS-APPEAL
RAYMOND R. ABRAMSON, Judge
Larry L. Harrison worked for Street & Performance, Inc. (Street & Performance), for
eleven and a half years as a hemi technician. He filed a claim with the Arkansas Workers’
Compensation Commission (hereinafter “the Commission”) asserting that his neck, right-
arm, and right-shoulder injuries resulted from his employment with Street & Performance.
Following a hearing before an administrative law judge (ALJ), the ALJ issued an opinion
denying his claim on June 21, 2016 in its entirety. Harrison appealed to the Commission,
and on its de novo review, the Commission issued a unanimous opinion dated January 11,
2017, affirming in part and reversing in part the decision of the ALJ. Specifically, the
Commission found that Harrison proved that he had sustained a compensable gradual-onset
neck injury but failed to prove that he had sustained a compensable gradual-onset right-arm
or shoulder injury. Harrison filed a pro se notice of appeal on February 1, 2017, and Street
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& Performance filed a notice of cross-appeal on February 7, 2017. The record was lodged
with this court on March 14, 2017. We affirm on direct appeal and on cross-appeal.
As a hemi technician at Street & Performance, Harrison provided technical assistance
to customers over the phone and worked in the shop installing and repairing car motors.
Harrison worked about ten hours a day at Street & Performance, typically spending about
three to five hours on the phone and three to seven hours working in the shop. Harrison’s
shop work included the removal and installation of wheels and tires, radiators, disc brakes,
transmissions, motors, batteries, and other car parts. Harrison testified that he never counted
how many cars he worked on in a year because it would fluctuate but that he always had at
least two cars he would work on at the same time. Harrison denied that he had been injured
in a specific incident.
As to potential rapid or repetitive work, Harrison testified regarding two different
work activities: (1) closing the garage-bay door and (2) using a floor jack. Harrison stated
that lifting the garage door was the most repetitive thing he did at work and indicated that
he had to open and close the door as many as fifteen times during a ten-hour shift. Harrison
noted that he did not have to use the floor jack every day and used it for only 20 to 30
minutes at a time. Harrison began to experience issues with his right arm, including tingling
in his fingers and muscle atrophy, in October 2013.
On May 27, 2014, Harrison went to Sparks Preferred Clinic complaining of right-
arm tingling and loss of muscle mass in his right arm. An x-ray of Harrison’s cervical spine
revealed narrowed disc spaces. An MRI performed a month later revealed multiple disc
protrusions, chronic compression conformity, and degenerated discs throughout the cervical
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spine. Harrison was referred to neurosurgeon Dr. Shawn Moore. Dr. Moore’s note from
Harrison’s first visit on July 25, 2014, states that Harrison reported a three-year history of
neck pain and frequent heavy lifting. Dr. Moore recommended surgery, which was
performed September 12, 2014. Before this surgery, Harrison was off work beginning on
August 25, 2014, while recovering from hernia surgery. Harrison never returned to work
at Street & Performance after August 2014.
On July 31, 2015, Harrison went to Mercy Hospital in Fort Smith with complaints
of “chronic right shoulder pain.” He reported during intake that he had a history of heavy
labor for many years and that he used to lift car radiators for a living. An x-ray of Harrison’s
right shoulder was taken and was normal. An MRI or physical therapy were discussed as
treatment options at the appointment. On September 28, 2015, Harrison saw Dr. Bao Dang
at Sparks Family Medicine South for shoulder pain and chronic neck pain. Dr. Dang ordered
an orthopedic referral. On October 27, 2015, Harrison saw Dr. Trent Johnson at Mercy
Clinic Orthopedic in Fort Smith. Dr. Johnson’s examination revealed a right-shoulder
rotator-cuff sprain and a possible full- or partial-thickness tear of the rotator cuff. A follow-
up MRI revealed a full-thickness tear in the intersection of the supraspinatus tendon,
tendinopathy, degenerative changes, bursitis, and a mild cyst. Dr. Johnson performed a
right-shoulder arthroscopy with arthroscopic rotator-cuff repair, an acromioclavicular joint
resection, and a biceps tenotomy on Harrison’s right shoulder on November 11, 2015.
Harrison filed a claim with the Commission claiming his neck, right-arm, and right-
shoulder injuries resulted from his employment with Street & Performance. Following a
prehearing conference, Harrison’s claim was set for a hearing on March 29, 2016, with the
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issues being whether he sustained a compensable gradual-onset injury to his neck, right arm,
and right shoulder as a result of his employment with Street & Performance and, if he did,
whether he was entitled to medical benefits, temporary-total-disability benefits, and
attorney’s fees. 1
Before the hearing, Harrison submitted for the record a July 2015 letter from Dr.
Moore that noted, “I think it is probable Mr. Harrison experienced cervical degenerative
disc disease with radiculopathy related to his significant work-related obligations.” Dr.
Moore also wrote, “Although degenerative disc disease is often considered a chronic
degenerative process, the significant work-related obligations that Mr. Harrison performed
most likely contributed to this underlying condition and the development of his neck pain
and radiculopathy.”
Dr. Moore was called to testify at the March 29, 2016 hearing before the ALJ. Dr.
Moore explained that Harrison’s condition, degenerative disc disease, is typically a chronic
degenerative process, but it could be exacerbated by certain work conditions or trauma. As
to his letter, Dr. Moore specifically testified that the “purpose of the letter was just to
indicate [that Harrison] has a chronic degenerative condition but it can be exacerbated with
significant activities.” Dr. Moore noted that while he could say that Harrison’s reported
work activities were “a contributing factor” in the condition, he could not put a percentage
on how much or how little Harrison’s reported activities contributed to the chronic
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Harrison was represented by counsel during at least part of the proceedings below.
He appeared pro se on appeal to the Commission as well as on appeal to this court.
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degenerative condition because “that’s subjective.” Dr. Moore testified that the letter he
dictated was correct.
Following the hearing, the ALJ issued an opinion denying Harrison’s claim in its
entirety. Harrison then appealed to the Commission. As noted above, the Commission
affirmed in part and reversed in part the ALJ’s decision. The Commission found that
Harrison proved he had sustained a compensable gradual-onset neck injury but failed to
prove that he had sustained a compensable gradual-onset right-arm or shoulder injury. It is
from those proceedings that both parties appeal.
In reviewing a decision from the Commission, our court reviews the evidence and
all reasonable inferences deducible therefrom in the light most favorable to the
Commission’s findings and affirms if the decision is supported by substantial
evidence. Nichols v. Micro Plastics, Inc., 2015 Ark. App. 134. Substantial evidence exists only
if reasonable minds could have reached the same conclusion without resort to speculation
or conjecture. Id. The issue is not whether the appellate court might have reached a different
result from that of the Commission but whether reasonable minds could reach the result
found by the Commission. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57
(2008). It is the Commission’s duty, not ours, to make credibility determinations, to weigh
the evidence, and to resolve conflicts in the medical testimony. Martin Charcoal, Inc. v. Britt,
102 Ark. App. 252, 284 S.W.3d 91 (2008).
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 of
the Commission. Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d 394 (2007).
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Questions concerning the credibility of witnesses and the weight to be given to their
testimony are within the exclusive province of the Commission, and when there are
contradictions in the evidence, it is within the Commission’s province to reconcile
conflicting evidence and to determine the true facts. Neal v. Sparks Reg’l Med. Ctr., 104 Ark.
App. 97, 289 S.W.3d 163 (2008). The Commission is not required to believe the testimony
of the claimant or any other witnesses but may accept and translate into findings of fact only
those portions of the testimony that it deems worthy of belief. Id. The Commission is the
ultimate arbiter of weight and credibility. Towler v. Tyson Poultry, Inc., 2012 Ark. App. 546,
at 2, 423 S.W.3d 664, 666.
On appeal, Harrison’s challenge to the Commission’s finding that he did not suffer a
compensable injury to his right arm or right shoulder is not preserved for our review. In his
brief, he contends that this court should find that his right-arm and shoulder injury, a
rotator-cuff tear, was a compensable consequence of his neck injury. However, he did not
present this argument to the Commission. Before the Commission, his sole contention
regarding his right-arm and shoulder injury was that it was a compensable gradual-onset
injury arising out of the course of his employment with Street & Performance. We have
routinely held that we will not consider arguments presented for the first time on appeal.
Townley v. Ga. Pac. Corp., 2012 Ark. App. 48, 388 S.W.3d 475. Because Harrison is raising
this matter for the first time on appeal and failed to get a ruling from the Commission, we
are prevented from reviewing it. See Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d
5 (2000); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Accordingly,
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we affirm the Commission’s opinion that Harrison’s right-arm and shoulder injury are not
compensable.
On cross-appeal, Street & Performance argues that the Commission’s decision that
Harrison suffered a gradual-onset injury to his neck is not supported by substantial evidence
in the record and therefore should be reversed. We disagree. This court must view the
evidence and all reasonable inferences in the light most favorable to the Commission’s
decision and must affirm that decision when it is supported by substantial evidence. Nichols,
supra.
Here, the Commission’s decision is supported by substantial evidence. On de novo
review, the Commission found that Harrison had sustained a compensable gradual-onset
neck injury arising out of the course of his employment with Street & Performance. On
cross-appeal to this court, Street & Performance argues that the Commission’s decision was
based primarily on a letter Dr. Shawn Moore had written on July 27, 2015, and that the
Commission erred as a matter of law by considering and crediting Dr. Moore’s letter opinion
specifically but not his hearing testimony. A claimant seeking benefits for a gradual-onset
injury to the neck must prove by a preponderance of the evidence that (1) the injury arose
out of and in the course of his employment; (2) the injury caused internal or external harm
to the body that required medical services or resulted in disability or death; and (3) the injury
was the major cause of the disability or need for medical treatment. Smith v. Commercial
Metals Co., 2011 Ark. App. 218, at 9, 382 S.W.3d 764, 769; Ark. Code Ann. § 11-9-
102(4)(A)(ii)(b) & (E)(ii) (Repl. 2012). “Major cause” is defined as more than 50 percent of
the cause. Ark. Code Ann. § 11-9-102(14)(A).
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Street & Performance contends that the Commission arbitrarily disregarded the full
scope and substance of Dr. Moore’s opinion as clarified through his hearing testimony by
considering only his letter. We are not persuaded by Street & Performance’s argument on
cross-appeal.
In its January 11, 2017 opinion, the unanimous Commission wrote,
It is within the Commission’s province to weigh all of the medical evidence
and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark.
94, 989 S.W.2d 151 (1991). In the present matter, the Full Commission finds that
Dr. Moore’s opinion as stated in his July 27, 2015 correspondence is supported by
the record and is entitled to significant evidentiary weight. Dr. Moore credibly
opined that claimant’s cervical condition was causally related to the claimant’s work
for the respondents.
Based on the evidence in the present matter, the Full Commission finds that
the claimant proved he sustained a compensable injury to his neck in accordance
with Ark. Code Ann. § 11-9-102(4)(A)(ii)(b) (Repl. 2012). The claimant proved
that he sustained an injury causing physical harm to his body which arose out of and
in the course of employment and was not caused by a specific incident. The claimant
established a compensable injury by medical evidence supported by objective
findings, namely the compression fracture and bulging shown on the June 25, 2014
MRI of the claimant’s cervical spine. The claimant proved that these objective
medical findings were causally related to the compensable injury. The claimant also
proved by a preponderance of the evidence that the compensable injury was the
major cause of his disability and need for treatment.
We will defer to the Commission on credibility determinations and to resolve any
conflicts in the medical testimony. Martin Charcoal, Inc., supra. Here, the Commission relied
on Dr. Moore’s July 27, 2015 letter, which clearly states, “the significant work-related
obligations that Mr. Harrison performed most likely contributed to this underlying
condition and the development of his neck pain and radiculopathy.” We hold this satisfies
that Harrison’s injury was a major cause of the disability or need for medical treatment.
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With our standard of review in mind, we hold that fair-minded persons could have reached
the Commission’s conclusion. Therefore, we affirm on cross-appeal.
Affirmed on direct appeal and on cross-appeal.
MURPHY and BROWN, JJ., agree.
Larry L. Harrison, pro se appellant.
Ledbetter, Cogbill, Arnold & Harrison, LLP, by: James A. Arnold II and Joseph Karl
Luebke, for appellees.
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