Ellison v. Therma Tru ( 2000 )

Sam BIRD, Judge.

In this second appeal to this court, the appellant, Sarah Ellison, contends that the Commission erred by determining that she had not proven by a preponderance of the evidence that she is permanently and totally disabled and could be categorized as falling under the odd-lot doctrine. Because substantial evidence exists to support the Commission’s decision, we affirm.

At the hearing before the administrative law judge, Ellison testified that she had experienced two non-work-related injuries to her back, in 1987 and 1989. She began working for Therma Tru in 1979, and her job required her to “pull loads of door stiles across the floor onto my machine.” She suffered a compensable injury in 1991 while she was employed with Therma Tru and was pulling a load of door sides when she felt a “pop” in her back. She suffered recurrences of her injury in 1992 and 1993. The injury was accepted as compensable by Therma Tru, which paid indemnity and medical benefits. Ellison then claimed that she was permanently and totally disabled.

Ellison testified that she was terminated from Therma Tru on June 30, 1993, after her second recurrence “because her pain became so severe” that she could not cope with it. She testified that she has not worked since, and that she has not applied for any other jobs, but that she has asked to return to Therma Tru but was refused. After she was terminated, she presented to Dr. Stephen Heim, an orthopaedic surgeon. She stated that she is in constant pain and cannot sit or stand for a long period of time. She admitted that she did not see a doctor for her back condition in 1994, 1995, or 1996, and that she had not attended or scheduled any follow-up appointments with Dr. Heim since February -1997 because, she stated, Dr. Heim seemed to think there was nothing he could do to help her.

She also states that she had experienced respiratory and breathing problems in the past, as early as 1983, having been diagnosed with bronchitis and other respiratory problems. An inhaler was prescribed for her in 1988 by Dr. Sasser. She has smoked for approximately thirty years and has been told by doctors several times that she should quit. She said that she missed work in 1991 for her respiratory breathing problems, and that her problems had worsened. She stated, “I don’t have much breath. Just any little thing and I’m out of breath. ... Moving around or strenuous things cause me to run short of breath. Just trying to walk or anything.” She stated that she is able to go grocery shopping, cook, and do laundry, but that she has to stop, sit down, and take a breath.

She stated that the effects of her back injuries, coupled with her respiratory problems, do not allow her to work. She testified, “If I had a job that I could just sit and use my hands I could do it if it were not for my respiratory problem. But if I’m going to be moving around or anything strenuous I could not do it with my respiratory [problems], neither with my back. I think I can do sedentary work.”

She contends that she was permanently and totally disabled due to the combined effects of the 1991 injury and the 1992 and 1993 recurrences and her preexisting condition of chronic obstructive pulmonary disease. The Second Injury Fund was joined as a party, and it denied any liability for benefits, while Therma Tru denied that Ellison is permanently and totally disabled.

Medical evidence presented to the administrative law judge included reports from Dr. Harford, whose notes reflected that Ellison had suffered a back injury at work on May 8, 1991, which caused her severe pain resulting in numbness and tingling into her left leg and foot. She was released to return to work on October 31, with specific instructions not to push any carts by herself. Ellison returned to Dr. Harford on December 7, 1992, stating that she had reinjured her back pulling carts, but that someone was helping her pull carts. He wrote, “She is just a small frail lady and I do not think she is going to manage to continue working in this type of work without injuring herself on a frequent basis.” On January 21, 1993, Dr. Harford stated that Ellison was markedly improved, and he released her from his care but instructed her to never again push carts. On July 21, 1993, Dr. Harford stated that Ellison needed to change occupations; that she is not able to do factory work.

Dr. Stephen Anthony Heim, an orthopaedic surgeon, testified by deposition that Ellison was diagnosed with having a herniated disc in 1991, but that she did not require surgery. He stated that she was temporarily totally disabled on August 12, 1993. On August 20, he assigned her a 6% impairment rating. In doing so he stated that it would be difficult to divide the 6% impairment rating because it would be hard to determine how much of it is due to Ellison’s underlying back condition and how much of it is due to her job-related injury in 1991. When he first saw her, Dr. Heim instructed her not to do any lifting or twisting and to return to him on September 25. Ellison did not keep her appointment. However, Ellison returned to him in 1997, after her attorney informed her that she needed to have another check-up.

In his deposition Dr. Heim stated:

If Ms. Ellison’s condition has not significantly improved since August 12, 1993, I would recommend that she use proper lifting techniques. I would ask her to keep her muscles in good condition and I would ask her to possibly occasionally wear a back brace when she is doing things that are of high activity in nature. I would ask her to refrain from any repetitive bending at the waist and any lifting heavy loads. I would say 25 pounds or above from ground level. There is no medical reason for an employer not to allow Ms. Ellison to work within these restrictions.

Additionally, in a report dated February 6, 1997, Dr. Heim stated that Ellison was not a good candidate for vigorous activity that requires a lot of bending, stooping, and lifting. He stated, “She could have a sedentary job.”

Various medical notes were also introduced showing that Ellison had seen several doctors who had diagnosed her with upper respiratory problems, including emphysema, chronic obstructive pulmonary disease, and recurrent acute bronchitis. In addition, several of the doctors had recommended that she stop smoking, but all the medical notes indicated that she had not done so. On October 11, 1993, Dr. Sills noted in his records that Ellison “had been given a note stating that she is unable to work due to her severe chronic obstructive pulmonary disease and back pain.”

A pulmonary function report prepared by Dr. David R. Nichols was also introduced into evidence. Although not abstracted by Ellison in her second appeal to this court, the report was relied upon by the Commission. The report stated that Ellison had a mild obstructive pulmonary impairment and that the degree of functional impairment was found to be moderate.

Based upon evidence adduced at the hearing, the Commission determined that Ellison had a one-percent permanent impairment and a two-percent wage loss, and it absolved the Second Injury Fund of any liability. This court reversed the Commission and remanded the case, stating that the Second Injury Fund did have some liability in the case; that the Commission should have applied the law as it existed in 1991, rather than Act 796 of 1993; and we instructed the Commission to consider the applicability of the odd-lot doctrine to Ellison. See Ellison v. Therma Tru, 66 Ark. App. 286, 989 S.W.2d 987 (1999).

Following our remand, the Commission delivered an opinion finding that the odd-lot doctrine was not applicable to Ellison because she had not proven that she was permanently and totally disabled. It also found that she has a wage-loss disability of 8% to the body as a whole. The Commission stated that, at the time of the hearing, Ellison was 61 years old, that she had a 10th grade education, and that the majority of her work had included tasks involving labor-intensive activity in an industrial setting. In its opinion, the Commission considered Ellison’s testimony that she has constant pain in her back that does not allow her to sit or stand for long periods of time. She said that she has respiratory problems, and that those problems, coupled with her back injury, would not allow her to continue to work.

However, the Commission found that she had not introduced any credible evidence from a physician or from a vocational counselor that she is totally disabled. The Commission, instead, relied upon testimony from Dr. Heim, the only physician that had treated her since 1993, who found that even though she was not a good candidate for vigorous activity that requires a lot of bending, stooping, and lifting, she was improving slighdy and that she could maintain a sedentary job. The Commission also took note of Dr. Harford’s opinion that Ellison was going to need to find another fine of work.

In addition, the Commission chose specifically not to believe Ellison’s testimony that her respiratory condition had recently deteriorated because medical evidence had shown the opposite. It relied upon a physician’s testimony that Ellison had a mild obstructive pulmonary impairment with a moderate degree of functional impairment.

The Commission then wrote:

In light of Dr. Nichols’ conclusion in 1994 that the claimant had a mild obstructive pulmonary impairment with a moderate degree of functional impairment, and in light of Dr. Heim’s assessment in 1997 that the claimant could return to sedentary work, we are not persuaded by the claimant’s testimony that no employer would hire her in her condition. The claimant has acknowledged that she has not sought any employment from her employer (other than from the respondent) since she last worked in 1993. In light of the medical reports of Dr. Nichols and Dr. Heim, we are not persuaded by the claimant’s testimony that she has presented a prima facie case that she fits within the odd lot category.

The Commission then ordered the Second Injury Fund to pay Ellison an 8% impairment to her wage-earning capacity and Therma Tru to pay for the 1% anatomical impairment rating to the body as a whole.¹ Ellison brings this appeal contending that the Commission erred in finding that she is not permanently and totally disabled and that the odd-lot doctrine is not applicable.

On appellate review, we view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission. Patterson v. Arkansas Dep’t of Health, 70 Ark. App. 182, 15 S.W.3d 701 (2000); Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999). Our standard of review on appeal is whether the Commission’s decision is supported by substantial evidence. Patterson v. Arkansas Dep’t of Health, supra; Buford v. Standard Gravel Co., supra. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclu sion. Patterson v. Arkansas Dep’t of Health, supra; Buford v. Standard Gravel Co., supra. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Patterson v. Arkansas Dep’t of Health, supra; Buford v. Standard Gravel Co., supra. In cases where the Commission’s denial of relief is based upon the claimant’s failure to prove entitlement by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm the Commission’s action if its opinion displays a substantial basis for the denial of relief. Patterson v. Arkansas Dep’t of Health, supra.

Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Dep’t of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). We defer to the Commission’s findings on what testimony it deems to be credible. Id. When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).

The rules of appellate review in workers’ compensation cases insulate the Commission from judicial review and properly so, as it is a specialist in the area and this court is not. Buford v. Standard Gravel Co., supra. However, a total insulation would obviously render the appellate court’s function in reviewing these cases meaningless. Buford v. Standard Gravel Co., supra.

The odd-lot doctrine provides benefits for an employee who is injured to the extent that he can only perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist and he may be classified as totally disabled. Patterson v. Arkansas Dep’t of Health, supra. The doctrine applies to employees who are able to work only a small amount; the fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. Patterson v. Arkansas Dep’t of Health, supra. An injured worker who relies upon that doctrine has the burden of making a prima facie showing of being in the odd-lot category based upon the factors of permanent impairment, age, mental capacity, education, and training. Patterson v. Arkansas Dep’t of Health, supra. If the worker does so, the employer then has the burden of showing some kind of suitable work is regularly and continuously available to him. Patterson v. Arkansas Dep’t of Health, supra. In considering factors that may affect an employee’s future earning capacity, this court considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). In addition, although a claimant’s failure to participate in rehabilitation services does not bar his claim, the failure may impede a full assessment of his wage-earning loss by the Commission. Nicholas v. Hempstead County Memorial Hosp., 9 Ark. App. 261, 658 S.W.2d 408 (1983). Section 24 of Act 796 of 1993, codified at Ark. Code Ann. § ll-9-522(e) (R.epl. 1996), abolished the odd-lot doctrine for injuries occurring after July 1, 1993. However, because Ellison’s injuries occurred in 1991, with recurrences in 1992 and 1993, the doctrine is applicable to her case.

Ellison argues on appeal that the Commission erred in not finding that she is permanently and totally disabled because, on remand, the Commission again adopted the restrictive view of disability consistent with Act 796 of 1993, rather than applying the law in effect in 1991. She argues that her work opportunities are restricted due to her age, her past work experience, and the fact that she cannot stand or sit for long periods of time. In addition, she discounts Dr. Heims medical opinion that she could maintain a sedentary job because, she contends, Dr. Heim only took into account her orthopaedic problems, and not her respiratory problems. She also states that the Commission’s decision is contrary to Dr. Sills’s opinion that Ellison was unable to work due to her severe respiratory problems and back pain. As evidence that the Commission applied a “restrictive interpretation of the law,” Ellison points to the fact that she was awarded only an 8% wage-loss disability.

In addition, she argues that in order to prevent her from being classified under the odd-lot doctrine, Therma Tru has the burden of going forward with evidence by showing that some kind of suitable work is regularly and continuously available to her.

We disagree with Ellison, and find that there is substantial evidence to support the Commission’s findings. Although she testified that she is unable to maintain a job due to her back condition combined with her respiratory condition, testimony was presented from Dr. Heim that she is improving and that she could maintain a sedentary job. Ellison also stated during her testimony that she thought she “could do sedentary work.”

Even though Dr. Sills stated that, as of 1993, Ellison was unable to work due to severe congestive obstructive pulmonary disease, Dr. Nichols stated in 1994 that she had mild obstructive pulmonary impairment resulting in a moderate degree of functional impairment . The Commission specifically relied upon Dr. Nichols’s testimony in rendering its decision.

As we have stated, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Dep’t of Health v. Williams, supra. We defer to the Commission’s findings on what testimony it deems to be credible. Arkansas Dep’t of Health v. Williams, supra. When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. When the Commission chooses to accept the testimony of one physician over another in such cases, we are powerless to reverse that decision. Patterson v. Arkansas Dep’t of Health, supra. Here, the Commission chose to believe Dr. Heim’s testimony that Ellison could do sedentary work. In addition, she stated that she could. Therefore, we find that there is substantial evidence to support the Commission’s opinion that Ellison did not make a prima-facie case that she is permanently and totally disabled and, therefore, does not fall within the odd-lot doctrine.

In addition, we reject Ellison’s argument that she should be considered to be permanently and totally disabled under the odd-lot doctrine because Therma Tru did not present evidence that sedentary work is available. The burden did not shift to Therma Tru to show work that was readily and consistently available and within Ellison’s capabilities because, as the Commission found,Ellison never made a prima facie case that she was permanently and totally disabled. See Patterson v. Arkansas Dep’t of Health, supra; Buford v. Standard Gravel Co., supra.

The dissenting judges disagree with the Commission’s conclusion that Ellison failed to make a prima-facie case that she fell within the odd-lot doctrine, and they suggest that the Commission improperly considered the credibility of witnesses and the preponderance of the evidence in reaching that conclusion. No doubt, there is room to disagree with the Commission’s opinion, but this court’s duty on review is to determine whether there is any substantial evidence in the record that supports the findings of the Commission. In doing so, we are not to substitute our judgment concerning matters of credibility for that of the Commission and the Commission is the trier of fact. Riverside Furniture Co. v. Loyd, 42 Ark. App. 1, 852 S.W.2d 147 (1993); Jackson Cookie Co. v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986). While it is also true, as the dissent suggests, that the issue of whether the appellant made a prima-facie showing that she fell under the odd-lot doctrine is a question of law, it is equally true that the Commission cannot answer that question in a vacuum. The Commission must first determine the facts to which the law is to be applied, and when the facts are in dispute, the Commission must determine what evidence is credible and in which party’s favor the evidence preponderates. Riverside Furniture Co. v. Loyd, supra; Jackson Cookie Company v. Fausett, supra.

The Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950), and Brock v. Bates, 227 Ark. 173, 297 S.W.2d 938 (1957), cases cited in the dissenting opinion are simply not applicable to the case at bar. First, they are not workers’ compensation cases. Second, they involve the interpretation of a now-nonexistent statute that formerly provided for a demurrer to the evidence in chancery and probate cases. Werbe and Brock stand for nothing more than what was formerly a well-established rule that in passing upon demurrers to the evidence in chancery and probate cases, the trial court was required to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only when the plaintiff’s evidence, when so considered, fails to make a prima-facie case.

The dissent has cited no authority to support its contention that, in workers’ compensation cases, the Commission cannot consider the credibility of witnesses and the weight of the evidence in determining whether a claimant has presented a prima-facie case that he falls within the odd-lot doctrine. Even in Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999), relied on by the dissent, we recognized the obligation of the Commission to consider all competent evidence relating to a claimant’s disability in determining the applicability of the odd-lot doctrine. Also, in Ellison’s first appeal to this court, when we remanded the case to the Commission to consider the application of the odd-lot doctrine, we instructed the Commission to consider all competent evidence relating to her incapacity, including the age, education, medical evidence, work experience, and other matters reasonably expected to affect the claimant’s earning power. See Ellison v. Therma-Tru, supra. Nor does the dissent cite authority to support its position that the Commission may consider only the evidence that is favorable to the claimant.

Finally, the dissent suggests, again without citation to any authority, that this court, in reviewing the Commission’s finding that Ellison did not prove that she fell within the odd-lot doctrine, cannot apply the substantial-evidence standard of review. Ironically, in every odd-lot case cited by the dissenting opinion in support of its position that Ellison met the requirements for odd-lot consideration, the substantial-evidence standard of review was applied by this court.²

Affirmed.

Hart, Koonce, Stroud, Meads, and Roaf, JJ., agree. Robbins, CJ., and Griffen and Neal, JJ., dissent.

1 Neither the Second Injury Fund nor Therma Tru cross-appealed the Commission’s award, leaving the only issue on appeal whether Ellison is permanently and totally disabled under the odd-lot doctrine.

2 Patterson v. Arkansas Dep’t of Health, 70 Ark. App. 182, 15 S.W.3d 701 (2000)(“we review the evidence and all 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.”); Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999) (“Our standard of review on appeal is whether the decision of the Commission is supported by substantial evidence.”); Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 Ark. 456 (1992) (“the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief.”); M.M. Cohn Co. et al. v. Pauline Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979) (“"We hold there is substantial evidence this claimant is totally disabled.”); Walker Logging v. Paschal, 36 Ark. App 247, 821 S.W.2d 786 (1992) (“When reviewing a decision of the Workers’ Compensation Commission, we must 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.”).