Williams v. Arkansas Department of Community Correction , 2016 Ark. App. LEXIS 455 ( 2016 )

Cite as 2016 Ark. App. 427
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-204
Opinion Delivered: SEPTEMBER 21, 2016
SANDRA C. WILLIAMS
APPELLANT APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION [NO. G203173]
ARKANSAS DEPARTMENT OF
COMMUNITY CORRECTION AND
ARKANSAS INSURANCE
DEPARTMENT, PUBLIC EMPLOYEE
CLAIMS DIVISION
APPELLEES AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Sandra Williams appeals from a January 8, 2016 opinion by the Arkansas
Workers’ Compensation Commission (Commission) affirming and adopting the findings
of fact and conclusions of law made by the Administrative Law Judge (ALJ) in favor of
appellees the Arkansas Department of Community Correction and the Arkansas Insurance
Department, Public Employee Claims Division. On appeal, appellant contends that the
Commission’s assignment of permanent partial-disability (PPD) benefits was not supported
by substantial evidence. We disagree and affirm.
Appellant injured both arms and left knee on April 16, 2012, in a fall during her
employment at the Arkansas Department of Community Correction. Appellees contested
the claim. The ALJ found in a March 11, 2013 opinion that the injuries were compensable
Cite as 2016 Ark. App. 427
and that appellant was entitled to temporary total-disability (TTD) benefits. Appellees did
not appeal that decision.
After reaching maximum medical improvement, appellant sought PPD benefits
arising out of her compensable injuries. Dr. J. Adam Smitherman, appellant’s treating
physician, assigned a forty-seven percent impairment rating to her right upper extremity and
a five percent impairment rating to her left upper extremity. On the other hand, Dr. Bruce
Randolph, who was retained by appellees to perform an independent medical examination
on appellant, assigned only a four percent impairment rating to appellant’s right wrist, a two
percent impairment rating to appellant’s right elbow, and a six percent impairment rating to
her left wrist. A hearing was held before the ALJ on March 12, 2015, to determine the
extent of appellant’s permanent impairment.
At the hearing, appellant testified that Dr. Smitherman was her treating physician and
that she had seen him several times. She saw Dr. Randolph on only one occasion after
appellees had requested an independent medical evaluation. Appellant testified that both
doctors conducted range-of-motion testing, which included testing where she moved her
extremities (active range of motion) and testing where the doctor moved her extremities with
her relaxed (passive range of motion).
The ALJ reviewed the medical records of each physician. The pertinent medical
records reflect that Dr. Smitherman issued a written physician’s statement opining that
appellant had a forty-seven percent impairment rating to her upper extremity and a five
percent impairment rating to her left wrist. Dr. Smitherman’s statement additionally
provided that the objective and measurable findings that formed the bases for the ratings
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included “[l]oss of motion in Right Elbow, wrist & hand; Loss of motion Left elbow &
wrist.” Furthermore, Dr. Smitherman cited to Figures 32 and 35 and Tables 3 and 15 of
the American Medical Association’s Guides to the Evaluation of Permanent Impairment,
Fourth Edition (AMA Guidelines), in support of his findings. Lastly, Dr. Smitherman
checked the corresponding box on the report form indicating that he used passive range-
of-motion criteria in assigning appellant’s impairment.
Dr. Randolph examined appellant on February 10, 2015. In a very detailed report
with charts and calculations, Dr. Randolph assigned a four percent upper-extremity
impairment rating for appellant’s right wrist, a two percent upper-extremity impairment
rating for appellant’s right elbow, and a six percent upper-extremity impairment rating for
appellant’s left wrist. Using the AMA Guidelines, Dr. Randolph calculated that these ratings
translated to a seven percent whole-person impairment rating due to the loss of motion in
appellant’s right wrist, right elbow, and left wrist. He further explained that these ratings
were based on passive range-of-motion criteria and were “given within reasonable medical
certainty.”
After the hearing, the ALJ filed its opinion on June 9, 2015, wherein it adopted the
impairment ratings of Dr. Randolph and found that the appellant sustained a four percent
upper-extremity impairment rating for appellant’s right wrist, a two percent upper-
extremity impairment rating for appellant’s right elbow, and a six percent upper-extremity
impairment rating for appellant’s left wrist, and that appellant did not sustain her burden of
proving additional impairment.
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In resolving the conflicting medical opinions between Dr. Smitherman and
Dr. Randolph concerning appellant’s impairment rating, the ALJ specifically made the
following findings:
The Commission is authorized to accept or reject a medical opinion and is authorized
to determine its medical soundness and probative value. Poulan Weed Eater v.
Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay Packing v. Bartlett, 67
Ark. App. 332, 999 S.W.2d 692 (1999). Based on my review of the evidence, I
credit that both Smitherman and Randolph used only passive range-of-motion
testing in assigning their ratings that they represented were based only on such testing.
That said, in examining Dr. Smitherman’s findings, there is no way to tell if
the impairment ratings he assessed are valid ones based on his testing. When asked
to cite the objective and measurable findings that he used, the doctor simply
responded: “Loss of motion in Right Elbow, wrist, & head; Loss of motion Left
elbow & wrist.” These are not quantified in the evidence at bar. One cannot
determine if the findings of his passive range-of-motion testing comport with Figures
32 and 35 and Tables 3 and 15—which Smitherman stated that he used—without
resorting to speculation and conjecture. But speculation and conjecture cannot serve
as a substitute for proof. Dena Construction Co. v. Herndon, 264 Ark. 791, 796, 575
S.W.2d 155 (1979). That said, I cannot, and do not, credit his findings regarding
the degree of Claimant’s alleged impairment.
Dr. Randolph’s findings, on the other hand, are extensively documented and
comport with those portions of the AMA Guides he cited in support of the ratings
he assigned under them. I thus credit his findings and find that the evidence
preponderates that Claimant is entitled to impairment ratings of four percent (4%) to
her right wrist, two percent (2%) to her right elbow, and six percent (6%) to her left
wrist.
However, as the parties have stipulated, Respondents have already accepted
the above ratings. For that reason, Claimant has not proven by a preponderance of
the evidence that she is entitled to additional permanent partial disability benefits.
Appellant appealed the ALJ’s decision, and on January 8, 2016, the Commission, in a two-
to-one majority opinion, affirmed and adopted the ALJ’s opinion as its own. Under
Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates,
2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s
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findings and conclusions the findings and conclusions of the Commission. Id. Therefore,
for purposes of our review, we consider both the ALJ’s opinion and the Commission’s
majority opinion. Id.
On appeal, appellant contends that the Commission erred in rejecting
Dr. Smitherman’s impairment ratings, that Dr. Smitherman’s ratings were objectively based,
and that the Commission’s conclusion that she failed to meet her burden of proof is not
supported by substantial evidence. We disagree.
In appeals involving claims for workers’ compensation, the appellate court views the
evidence in the light most favorable to the Commission’s decision and affirms the decision
if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing, 2014 Ark. 93,
431 S.W.3d 858. Substantial evidence is evidence that a reasonable mind might accept as
adequate to support a conclusion. Id. The issue is not whether the appellate court might
have reached a different result from the Commission, but whether reasonable minds could
reach the result found by the Commission. Id. Additionally, questions concerning the
credibility of witnesses and the weight to be given to their testimony are within the exclusive
province of the Commission. Id. Thus, we are foreclosed from determining the credibility
and weight to be accorded to each witness’s testimony, and we defer to the Commission’s
authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson
v. Smurfit Stone Container, 2009 Ark. App. 800, 373 S.W.3d 347. When there are
contradictions in the evidence, it is within the Commission’s province to reconcile
conflicting evidence and determine the facts. Id. The Commission has the authority to
accept or reject medical opinions, and its resolution of the medical evidence has the force
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and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d
878 (2002). Finally, this court will reverse the Commission’s decision only if it is convinced
that fair-minded persons with the same facts before them could not have reached the
conclusions arrived at by the Commission. Prock, supra.
The Commission here was confronted with two opposing medical opinions—
Dr. Smitherman’s and Dr. Randolph’s differing impairment ratings. It is within the
Commission’s province to reconcile conflicting evidence, including the medical evidence.
Id; Boykin v. Crockett Adjustment Ins., 2013 Ark. App. 157. The Commission has the duty
of weighing medical evidence, and the resolution of conflicting evidence is a question of
fact for the Commission. See Ark. Human Dev. Ctr. v. Courtney, 99 Ark. App. 87, 257
S.W.3d 554 (2007). It is well settled that the Commission has the authority to accept or
reject medical opinion and the authority to determine its medical soundness and probative
force. Id. This is a classic “dueling-doctors” case in which this court is bound by the
Commission’s findings. Thus, we cannot say that there is not substantial evidence to support
the Commission’s decision.
Affirmed.
VAUGHT and BROWN, JJ., agree.
Gary Davis, for appellant.
Charles H. McLemore Jr., for appellee.
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