Strother v. LaCroix Optical ( 2013 )

Cite as 2013 Ark. App. 719
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-13-240
Opinion Delivered December 4, 2013
PENNY STROTHER APPEAL FROM THE ARKANSAS
APPELLANT WORKERS’ COMPENSATION
COMMISSION [No. F406963]
V.
LACROIX OPTICAL,
MASSACHUSETTS BAY INSURANCE
COMPANY, AND DEATH &
PERMANENT TOTAL DISABILITY
TRUST FUND AFFIRMED
APPELLEES
WAYMOND M. BROWN, Judge
Appellant appeals the Arkansas Workers’ Compensation Commission’s (Commission)
reversal of the administrative law judge’s (ALJ) decision with respect to finding that claimant
was permanently and totally disabled (PTD). On appeal, claimant argues that (1) the
Commission’s reversal was unsupported by substantial evidence and (2) the Arkansas Workers’
Compensation Act (the Act) is unconstitutional in violation of claimant’s right to substantive
and procedural due process.1 We affirm.
Appellant worked for appellee LaCroix Optical as a blocker. In that position, she used
various tools and processes to make lenses. In the course of and within the scope of that
employment, she suffered a neck injury on or about April 19, 2004. Appellee accepted the
1
The ALJ found that the Act is constitutional.
Cite as 2013 Ark. App. 719
injury as compensable and paid benefits pursuant to a 16% permanent partial disability (PPD)
rating by Dr. Karl Detwiler. Appellees also paid for appellant’s medical expenses, which
included four surgeries to her cervical spine. Appellant reached maximum medical
improvement on February 27, 2006.2
After her healing period ended, appellant brought an action seeking to be declared
totally and permanently disabled and arguing that the Act was unconstitutional.3 By opinion
on June 4, 2012, the ALJ found that appellant proved by a preponderance of the evidence that
she was permanently and totally disabled and that the Act was constitutional.4 Appellee timely
appealed that determination to the Commission on July 3, 2012.
In an opinion filed February 12, 2013, the Full Commission (1) found that appellant
failed to prove she was permanently and totally disabled, thereby reversing the ALJ, and
instead awarded her a thirty percent wage loss disability; and (2) dismissed appellant’s
constitutional challenge to the Act due to her failure to prove that the Act was
unconstitutional.
2
Both parties stipulated to this date.
3
Appellant also argued that she was entitled to a controverted attorney’s fee with
respect to the claim for permanent and total wage loss disability benefits. Appellees argued that
it was entitled to credit for an alleged overpayment of permanent partial disability benefits.
4
The ALJ also found that appellant was entitled to a controverted attorney’s fee and
found that appellee was entitled to a credit in the amount of $26,965 for permanent partial
disability benefits that were overpaid to appellant.
2
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I. Substantial Evidence
For her first argument, appellant argues that the Commission’s reversal was
unsupported by substantial evidence. The appellate court reviews the decision of the
Commission and not that of the ALJ.5 When reviewing a decision of the Commission, we
view the evidence and all reasonable inferences deducible therefrom in the light most
favorable to the findings of the Commission and affirm that decision if it is supported by
substantial evidence.6 Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.7 Questions regarding the credibility of
witnesses and the weight to be given to their testimony are within the exclusive province of
the Commission.8 The Commission has the authority to accept or reject a medical opinion
and the authority to determine its probative value.9 We do not determine whether the
evidence could support a contrary finding.10 We only reverse the Commission’s decision if
5
Powers v. City of Fayetteville, 97 Ark. App. 251, 254, 248 S.W.3d 516, 519 (2007)
(citing High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998)).
6
Vijil v. Schlumberger Tech. Corp., 2013 Ark. App. 346, at 5, ___ S.W.3d ___ (citing
Raulston v. Waste Mgmt., Inc., 2012 Ark. App. 272, ___ S.W.3d ___).
7
Id.
8
Ozark Natural Food v. Pierson, 2012 Ark. App. 133, at 9, 389 S.W.3d 105, 110 (citing
Evans v. Bemis Co. Inc., 2010 Ark. App. 65, 374 S.W.3d 51).
9
Id. (citing Adams v. Bemis Co. Inc., 2010 Ark. App. 859; Poulan Weed Eater v. Marshall,
79 Ark. App. 129, 84 S.W.3d 878 (2002)).
10
Walgreen Co. v. Goode, 2012 Ark. App. 196, at 2, 395 S.W.3d 398, 400 (citing St.
Joseph’s Mercy Med. Ctr. v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45; Sharp Cnty. Sheriff’s
Dep’t v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001)).
3
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we are convinced that fair-minded persons could not have reached the same conclusion with
the same facts before them.11
In support of her contention that she is permanently and totally disabled and unable
to work, appellant presented opinions from two vocational specialists. On August 27, 2009,
Robert White performed a vocational assessment on appellant. In his vocational evaluation,
dated September 2009, he concluded that appellant “will not be able to return to the labor
force now or in the future due to her past medical history.” Sarah Moore performed a
vocational assessment on appellant on December 8, 2011. In her vocational report, dated
January 31, 2012, Ms. Moore concluded that appellant was “unable to sustain competitive
employment based on the limitations imposed by her pain and her residual functional
capacity[.]” However, evidence from two of appellant’s treating physicians contradicted the
vocational specialists.
On May 4, 2005, after stating that appellant complained “bitterly” that she was unable
to work, Dr. Karl Detwiler reported “I believe she is able to do more than she actually is.”
On November 28, 2005, Dr. Detwiler reported that appellant could increase her activity and
that she could return to part-time work with “a ten pound lifting restriction, no repetitive
bending, stooping, bending, climbing, looking up, looking down or side-to-side.” On
January 11, 2006, Dr. Tyler Boone noted that appellant “probably will need permanent
restrictions to avoid any job, which involves repetitive reaching away from body overhead.”
However, Dr. Boone went on to note that although he did not know if appellant would ever
11
Ozark Natural Food, supra.
4
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be able to return to her previous type job position, “she could possibly be retrained.” On
February 27, 2006, Dr. Detwiler agreed with Dr. Boone that appellant could return to work
with restrictions and advised that “[j]ob vocational evaluation or subsequent retraining would
benefit Ms. Strother” because she had reached maximum medical improvement. Finally, on
June 14, 2006, Dr. Detwiler stated “I advised her that she needs to return to work with a 10
- lbs. restriction and four hours a day for the first two weeks and progressing to 10 - lbs and
eight hours a day.” The opinions of Drs. Detwiler and Boone were corroborated by that of
Dr. Peggy Brown, who completed a neurology consultation on appellant on October 11,
2010. Dr. Brown opined that appellant was “able to use all her extremities and is fully
ambulatory[,]” though she “would not be able to perform any tasks that require heavy
lifting.”
When the Commission weighs medical evidence and the evidence is conflicting, its
resolution is a question of fact for the Commission.12 The Commission was within its
authority to give more weight to the opinions of Drs. Detwiler and Boone, as appellant’s
treating physicians, than to the vocational opinions of White and Moore. We find no error.
The only other evidence supporting appellant’s contention that she is permanently and
totally disabled was her own testimony and that of her husband. Appellant testified that “all
but an hour and a half per day I am in bed typically.” She also testified that on days when she
feels good, she goes into town, “[b]ut the pain will be bad the next day.” Appellant’s husband
12
Powers v. City of Fayetteville, 97 Ark. App. 251, 254, 248 S.W.3d 516, 519 (2007)
(citing Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999)).
5
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testified that appellant “had probably three good days per month in which she can get out of
bed, get dressed, maybe go for a walk”; will be “lying in bed” the day following a “good
day”; has “one bad day per week” when she “just stays in her bedroom”; and “might be
productive on a typical day a total of three to three-and-a-half hours.” And though he stated
that appellant’s back and feet were not affected by appellant’s April 2004 injury, he stated that
“[a]ny problems with those areas developed after that.”
The Commission is not bound to accept the testimony of any witness, even if
uncontradicted.13 In this case, the testimony of appellant and her husband was contradicted
not only by medical opinion, as discussed above, but also by surveillance video, which showed
appellant squatting and bending to look at items on the bottom of a display in a store and
driving and walking, showing no apparent difficulties with, or afflictions to, any area of her
body. Steven Turnage, insurance defense private investigator, specifically testified that
appellant had a “normal gait” and no apparent difficulty in walking in contrast to other
individuals he had observed in other investigations who “walked in an odd or different
manner due to injuries or accidents.” He further testified that he “did not see [appellant] rest
or take a break” during the time he surveilled her and “did not see grimaces or other pain
indicators” in appellant.
Appellant claims that the “Commission either ignored or unduly minimized evidence,”
namely her evidence. However, the Commission’s opinion shows that it did neither as it states
13
Hickey v. Gardisser Constr., 2009 Ark. App. 725, at 9, 377 S.W.3d 259, 265 (citing
Ester v. Nat’l Home Ctrs, Inc., 335 Ark. 356, at 363–64, 981 S.W.2d 91, 95 (1998)).
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(1) “the opinions of treating physicians Dr. Boone and Dr. Detwiler are entitled to more
evidentiary weight than the opinions of Robert White and Sarah Moore,” (2) Dr. Boone and
Dr. Detwiler’s opinions were corroborated by the February 2012 surveillance video, and (3)
“[t]here is no probative evidence of record corroborating the conclusions of Robert White
and Sarah Moore that the claimant cannot return to gainful employment in any capacity.” We
cannot say that the Commission’s decision was not supported by substantial evidence;
therefore, we find no error.
II.Constitutional Law Arguments
In her second argument, appellant argues that the Act in its entirety is unconstitutional.
Specifically, appellant argues that (1) the Commission’s ability to reverse a specific finding of
an ALJ regarding credibility of the claimant is a violation of her right to procedural and
substantive due process as granted in the Arkansas Constitution, article 2, section 3; and (2)
the provisions of the Arkansas Workers’ Compensation Law, which allow the credibility
findings of the ALJ to be disregarded, in effect places the judicial functions of the adjudication
of claims for injured workers under the executive branch of the State of Arkansas in violation
of Arkansas Constitution, article 2, sections 2, 18 and 29. Appellant’s counsel has made these
identical arguments in other cases.14
14
See Prock v. Bull Shoals Landing, 2012 Ark. App. 47, 390 S.W.3d 78; Sykes v. King
Ready Mix, Inc., 2011 Ark. App. 271; Rippe v. Logging, 100 Ark. App. 227, 266 S.W.3d 217
(2007); Williams v. Johnson Custom Homes, 100 Ark. App. 60, 264 S.W.3d 569 (2007);
Stutzman v. Baxter Healthcare Corp., 99 Ark. App. 19, 256 S.W.3d 524 (2007); and Stiger v.
State Line Tire Service, 72 Ark. App. 250, 35 S.W.3d 325 (2000).
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In support of this argument, appellant quotes a footnote from Kimbell v. Association of
Rehabilitation Industry, in which our supreme court expressed a willingness to address the issue
of whether a constitutional violation occurs when the Commission and reviewing court are
permitted to ignore the findings of the law judge, the only adjudicator who sees and hears
witnesses.15 Appellant also quotes Scarbrough v. Cherokee Enterprises,16 in which our supreme
court noted that deprivation of due process of law might be a compelling reason for holding
that the initial fact-finder’s determinations of facts, where credibility is an issue, cannot be
ignored. These cases note this court’s openness to addressing constitutional claims involving
the Act, but neither contains any holdings that support appellant’s present argument.
Appellant’s counsel does not acknowledge any precedents that have already addressed these
arguments, and therefore does not distinguish this appeal from those precedents, nor does
counsel proffer an argument for reconsideration of settled law. Having previously been
submitted to this court, we have rejected these arguments.17 We, again, reject these arguments
and affirm the Commission’s decision affirming the constitutionality of the Act.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
Frederick S. “Rick” Spencer, for appellant.
Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Travis J. Fowler, for appellees.
15
366 Ark. 297, 235 S.W.3d 499 (2006).
16
306 Ark. 641, 816 S.W.2d 876 (1991).
17
See Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 250 S.W.3d 263 (2007); and Sykes
v. King Ready Mix, 2011 Ark. App. 271
8