Arkansas Department of Health v. Jeffery W. Lockhart

2020 Ark. App. 166, 594 S.W.3d 924

• Court: Court of Appeals of Arkansas
• Decided: March 11, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 166 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-07-01 14:14:31 Foxit PhantomPDF Version: DIVISION II 9.7.5 No. CV-19-673

ARKANSAS DEPARTMENT OF Opinion Delivered: March 11, 2020 HEALTH AND PUBLIC EMPLOYEE CLAIMS DIVISION APPELLANTS APPEAL FROM THE ARKANSAS WORKERS’ COMPENSATION COMMISSION [NO. G309119] V.

JEFFERY W. LOCKHART APPELLEE AFFIRMED

RAYMOND R. ABRAMSON, Judge

Appellants, Arkansas Department of Health and Public Employee Claims Division

(ADH), appeal the decision of the Arkansas Workers’ Compensation Commission

(Commission) in favor of appellee, Jeffery W. Lockhart. For the following reasons, we

affirm.

On appeal, ADH argues two points. First, Lockhart’s claim should be barred by the

applicable statute of limitations pursuant to Arkansas Code Annotated section 11-9-702.

Second, Lockhart did not sustain a compensable injury on September 20, 2013, and he did

not meet his burden of proving that he sustained a compensable injury within the course

and scope of his employment. We turn first to the threshold issue of whether the statute of limitations as set out in

Arkansas Code Annotated section 11-9-702(a)(1), bars Lockhart’s claim for benefits. The

Arkansas Workers’ Compensation Act recognizes two types of claims. One is where some

benefits have been voluntarily paid and a claim has been filed requesting certain additional

benefits. The other type of claim, which is the type in this case, is an original claim filed

when no benefits have ever been provided by the respondent. Lockhart was employed by

ADH as a health inspector in its Hot Springs office when he injured his neck while moving

tables with a coworker in September 2013.

Janet McAdams, an ADH area administrator, learned of the accident on the date it

occurred, September 20, and discussed the matter with Lockhart that day. However, she

did not file an incident report regarding the accident or take any other steps to report the

injury to her superiors until November 2013. Lockhart continued to receive additional

medical care through the Veterans Administration and continued to work, using his accrued

sick leave, or leave through the ADH catastrophic-leave program, when he was unable to

work. After some communication between Lockhart and ADH regarding workers’-

compensation benefits, Lockhart received a letter from the Public Employee Claims

Division (PECD) that his request for benefits would be denied. The letter was dated June

13, 2014.

On July 9, 2014, Lockhart wrote a letter to the Commission requesting certain

additional benefits based upon his injury. A Commission legal advisor, Charles McLemore,

wrote to Lockhart on August 7, 2014, notifying him that since he had not completed a

“Legal Advisor Questionnaire,” his claim was being returned to the Commission’s open

2 general files. Significantly, this letter did not advise Lockhart to file any additional

documents to preserve his claim for future determination, explain the statute of limitations,

state the deadline for action, or otherwise take any steps to properly file a claim. The letter

merely stated the claim would be kept in the open general files.

The administrative law judge (ALJ) determined that Lockhart had not filed a timely

claim pursuant to Arkansas Code Annotated section 11-9-702(a)(1). However, the

Commission reversed that finding and held that the July 9 letter constituted a claim for

benefits and tolled the applicable statute of limitations. We hold that the Commission’s

finding is supported by substantial evidence.

The July 9 letter sets out a commission claim number, references a denial of benefits,

specifically requests benefits, and asks for a hearing on Lockhart’s entitlement to those

benefits. While it is not on a Commission-designated claim form (AR-C), there is no

requirement in the Workers’ Compensation Act that a claim for benefits be made on any

particular form. As noted by the Commission in its decision, had the legislature intended

that an injured worker be required to file a claim using a particular claim form, it could

easily have expressed its intent as it has done in other statutes. The fact that there is no

requirement to use a designated claim form indicates the legislature did not intend to create

such a limitation.

Whether a letter requesting a hearing to determine entitlement to benefits or

otherwise seeking assistance from the Commission in pursuing a claim is sufficient to

commence a claim for benefits has been considered on several occasions, by both our court

and the Commission. See Stewart v. Ark. Glass Container, 2010 Ark. 198, 366 S.W.3d 358;

3 Spencer v. Stone Container Corp., 72 Ark. App. 450, 38 S.W.3d 909 (2001). Those cases

differ from the instant case in that the determination of whether the letter constituted the

filing of a claim that tolls the statute of limitations turned on whether the requests made in

the letter were acted on––in other words, if the Commission did not address the claimant’s

entitlement to the benefits sought in the letter, the statute of limitations was tolled until

those claims were addressed.

Although the case here involves an initial claim, the same analysis serves as an

appropriate guide. When Lockhart sent a letter appealing the denial of his claim, requesting

a hearing, and requesting additional benefits, the Commission found that this action

constituted the filing of a claim. Even though Lockhart may not have used the correct

terminology or the preprinted form, it is clear he was attempting to open an initial claim for

the benefits that were denied by the PECD. Further, the letter to Lockhart from Charles

McLemore and the Commission shows that the Commission considered Lockhart’s letter

to be a claim since it references the return of the claim to open general files.

Lockhart also made a written request for a hearing to obtain medical and disability

benefits. In making this request, he referenced a conversation he had with Commission

representatives, and in following their advice, he clearly believed he had taken the

appropriate action to preserve his claim for future determination. The letter placed

everyone, including the appellants, on notice that Lockhart intended to pursue a claim for

medical and disability benefits.

The Commission’s finding that the July 9 letter from Lockhart met all the

requirements of a claim for benefits is supported by substantial evidence. We will not reverse

4 if reasonable minds could have reached the same conclusion. See Long v. Wal-Mart Stores,

Inc., 98 Ark. App. 70, 250 S.W.3d 263 (2007). Here, reasonable minds could have reached

the same conclusion as the Commission.

Appellants’ second argument is that substantial evidence does not support the

Commission’s finding that Lockhart sustained a compensable injury to his neck on

September 20, 2013, while acting in the course and scope of his employment. On appellate

review, our court must consider evidence in the light most favorable to the findings of the

Commission and give testimony its strongest probative force in favor of the Commission’s

action. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).

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. Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858. 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.

To receive workers’-compensation benefits for a specific-incident injury, a claimant

must establish that the injury arose out of and in the course of employment and was caused

by a specific incident that is identifiable by time and place of occurrence. Ark. Code Ann.

§ 11-9-102(4)(A)(i). In the present case, the Commission determined that Lockhart

5 established the occurrence of a specific-incident injury to his neck while acting within the

course and scope of his employment with the ADH. Lockhart testified that on September

20, 2013, he and a coworker were attempting to move a desk from a conference room that

was going to be remodeled. He described the desk as large, awkward, and difficult to carry.

Lockhart stated that while moving the furniture, he felt his neck “pop.” He described feeling

a “real deep, hard pain.”

Lockhart’s testimony was substantiated by two witnesses. James Kisner testified that

he is the coworker who had helped Lockhart move the desk out of the conference room.

According to Kisner, he, Lockhart, and another coworker had been moving the office

furniture out of the conference room at the request of Janet McAdams, the ADH regional

director. He testified that while moving a very large, heavy metal desk through the door,

he saw Lockhart “grimace” as Lockhart requested that they put the desk down. Kisner also

testified that after they stopped moving the office furniture, Lockhart seemed to be in pain

with a stiff neck and could hardly move his head. After the injury, they stopped moving the

furniture.

McAdams also testified at the hearing. She stated that although she is now retired, at

the time of Lockhart’s injury she was the regional administrator of the ADH office in Hot

Springs. She testified she oversaw personnel working in the office, including Lockhart.

McAdams explained that the furniture in the conference room was being moved because

flooring was being installed in that area, and employees like Lockhart were expected to assist

in such projects.

6 McAdams testified that on the day of Lockhart’s injury, she was told by another

coworker that Lockhart had injured himself while moving the furniture. She further testified

that she immediately went to see Lockhart and noticed he was clearly in pain and was

suffering the effects of the injury. She stated she discussed filing a workers’- compensation

claim with him at that time and was fully aware of the specific time the injury occurred.

The appellants contend Lockhart’s testimony in regard to the injury is “littered with

inconsistencies and contradictions.” We disagree. Lockhart’s recitation of the facts was

corroborated by both Kisner and McAdams.

Additionally, there is medical evidence to establish a compensable injury in this case.

A compensable injury must be established by medical evidence supported by “objective

findings.” Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2019). Objective findings have been

defined as those that cannot come under the voluntary control of the patient. United Farms,

Inc. v. Gist, 2009 Ark. App. 717, 374 S.W.3d 23. There is no requirement that medical

testimony be based solely or expressly on objective findings, only that the record contain

supporting objective findings. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 60, 244 S.W.3d

709, 711 (2006). To prove a specific-incident injury, the claimant must establish that the

injury was one “arising out of and in the course of employment.” Ark. Code Ann. § 11-9-

102(4)(A)(ii).

The Commission found that an MRI showing a herniated disc at C5-6 with an

abnormal cord signal and Dr. Shaukat Hayat’s November 1, 2013 notes constituted

objective evidence of an acute injury. Lockhart also underwent a cervical laminoplasty with

the insertion of hardware in his neck. Appellants contend that Lockhart suffered from

7 congenital defects in his neck and he suffered a neck injury while on active duty in the

Marine Corps. However, this argument was rejected by the Commission for a number of

reasons. The above-referenced MRI demonstrated not only congenital and preexisting neck

condition, but also a herniated disc with spinal bleeding, indicative of an acute injury. Those

are clearly indications of a traumatic injury, and it was documented as such in Dr. Hayat’s

November 1 treatment notes.

Our court has repeatedly held that when an injury causes an increase in

symptomology, so that an asymptomatic condition becomes symptomatic, this change in

symptoms can itself constitute sufficient evidence of causation to justify a finding of

compensability. While Lockhart frankly admitted during his testimony that he had sustained

a neck injury during his service in the Marine Corps and that the Veterans Administration

had awarded him disability benefits based in part on that injury, it was obvious the neck

injury had not in any way limited his activities following his military discharge.

The Commission found that there was clearly a significant change in the condition

of Lockhart’s neck after the September 20, 2013 work accident. Prior to this incident, the

condition of Lockhart’s neck did not warrant surgical intervention. However, shortly after

his work accident, surgical intervention was recommended. The record is also replete with

evidence of how the effects of this accident had significantly altered Lockhart’s lifestyle.

Instead of being a physically-fit bodybuilder and marathon runner who was easily able to

perform all duties required in the performance of his job, he was eventually forced to leave

his employment and is now able to engage only in minimal activity. Significantly, Lockhart

attempted to remain employed long after the accident, but despite having been given less

8 physically demanding employment, he simply was unable to continue performing his job

duties and was ultimately fired.

The evidence in the case before us demonstrates that Lockhart met the evidentiary

standard of establishing the occurrence of a job-related specific-incident injury. Two court

of appeals cases––Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. 571, and Wright v. St.

Vincent Doctors Hospital, 2012 Ark. App. 153, 390 S.W.3d 779––both dealt with situations

in which an injured worker had a preexisting condition that was suddenly made worse by a

specific-incident injury arising at work. In these cases, our court held that since those

claimants were unaffected by their preexisting conditions before the on-the-job injuries, the

new symptoms were sufficient to establish a specific-incident injury had occurred. Such is

the case here. We have long held that the employer takes the employee as he finds him. See

Conway Convalescent Ctr. v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. Ct. App. 1979).

The Commission was correct in finding that Lockhart sustained a compensable injury

because substantial evidence shows there was a significant change in Lockhart’s condition

following the September 20, 2013 work accident. We cannot say that reasonable minds

could not have reached the same conclusion as the Commission, and therefore, we affirm.

Affirmed.

GLADWIN and BROWN, JJ., agree.

Robert H. Montgomery, Public Employee Claims Division, for appellants.

McKinnon Law Firm, by: David L. Schneider, for appellee.