Mosley v. McGehee School District

John E. Jennings, Judge.

This case is before the court a second time. We set out the relevant facts in Mosley v. McGehee School Dist., 30 Ark. App. 131, 783 S.W.2d 871 (1990), and need not do so again. In that decision we remanded the case to the Commission because we could not determine from the Commission’s opinion whether it had ruled, as a matter of law, that a stress-related heart attack was compensable only if there was a “close temporal relationship” between the stressful event and the subsequent heart attack.

On remand the Commission once again denied compensation and explained that the length of time between the stressful event and the heart attack is merely one factor to be considered in determining the issue of causation. Appellant again raises a number of issues on appeal to this court. We find no reversible error and affirm.

Appellant’s primary contention is that the Commission’s decision is not supported by substantial evidence. In determining whether the Commission’s findings are so supported, we must view the evidence in the light most favorable to those findings and give the testimony its strongest probative force in favor of the Commission’s action. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988). We do not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983). We are persuaded that the facts as set out in both the majority and dissenting opinions issued in the first appeal in this case constitute substantial evidence to support the Commission’s decision.

Appellant argues that the Commission should have believed Dr. Rosenman rather than Dr. Kizziar. The Commission, however, is not bound by medical opinion, even if uncontroverted. See Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). Appellant correctly notes some inconsistencies in Dr. Kizziar’s testimony, while conceding that there are also inconsistencies in the testimony of Dr. Rosenman. In any event this is a matter of credibility — a question for the trier of fact to resolve. Warwick Electronics, Inc. v. Devazier, 253 Ark. 1100, 490 S.W.2d 792 (1973). Appellant argues that any fair-minded person would necessarily infer that Mr. Mosley’s death was causally related to the stressful event but, again, the drawing of inferences is for the Commission as trier of fact. Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988). Appellant argues that Dr. Rosenman’s qualifications are more outstanding than those of Dr. Kizziar. Assuming this to be so, it does not follow that the Commission is therefore obliged to accept the testimony of Rosenman and reject that of Kizziar. See Wade, supra. Our conclusion is that the Commission’s opinion displays a substantial basis for the denial of the relief sought. See Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987).

At the original hearing before the administrative law judge, appellant called twenty-one teachers and other witnesses from Mr. Mosley’s school to testify, in essence, that anticipating and taking the teacher test was stressful for Mr. Mosley. Appellant contends that the Commission ignored this testimony, but the Commission’s opinion gives us no reason to agree. The Commission’s decision was not based on a finding of an absence of stress; rather, the Commission found that the appellant had failed to establish by a preponderance of the evidence a causal relationship between the work-related stress and Mr. Mosley’s subsequent death.

Appellant also contends that despite Act 10 of 1986 the Commission should “decide . . . factual disputes in favor of the claimant where the evidence may be nearly or equally balanced.” She also contends that Act 10 of 1986 violates the doctrine of separation of powers. Because both arguments are raised for the first time on appeal, we need not address them. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). See also Arkansas Cemetery Bd. v. Memorial Properties, Inc., 272 Ark. 172, 616 S.W.2d 713 (1981).

Finally, appellant contends that the Commission erred in denying her motion to remand the case to the administrative law judge for the purpose of adding to the record additional articles contained in various medical journals. The Commission’s denial of the motion was based, in part, on its determination that the additional evidence would be cumulative. See Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960). We hold that determination is adequately supported by the record and therefore find no error in the Commission’s denial of the motion to remand.

Affirmed.

Cooper, J., dissents.