Cite as 2020 Ark. App. 416 Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-07-12 11:16:02 DIVISION IV Foxit PhantomPDF Version: No. CV-20-128 9.7.5
Opinion Delivered: September 23, 2020 CRAIGHEAD COUNTY AND AAC RISK MANAGEMENT SERVICES APPEAL FROM THE ARKANSAS APPELLANTS WORKERS’ COMPENSATION COMMISSION V. [NO. G901108]
GARLAND TIPTON
APPELLEE AFFIRMED
RITA W. GRUBER, Chief Judge
Craighead County and AAC Risk Management Services appeal from a decision of
the Arkansas Worker’s Compensation Commission (the “Commission”) finding that
appellee Garland Tipton proved he sustained a compensable binaural hearing-loss injury and
awarding benefits therefor. Appellants contend that substantial evidence does not support
the Commission’s decision that Tipton injured his left ear in the work-related accident or
demonstrate objective medical findings of hearing loss. They also argue that the
Commission’s opinion improperly placed the burden of proof on appellants instead of on
Tipton. We affirm the Commission’s decision.
At the time of his injury, Tipton was fifty-seven years old and had worked as a deputy
sheriff in Craighead County for eight years. On July 25, 2017, Tipton responded to a call
from his niece, who said her husband was acting strangely and had locked himself in a shed. After Tipton approached the shed, it exploded, and he was thrown three to four feet,
resulting in injuries to his forearm and shoulder.1
After the explosion, Tipton also complained of loss of hearing, tinnitus, and a
sensation of fullness in his right ear. At an appointment on August 15, 2017, with audiologist
Amy Stein, Tipton admitted that he had suffered from intermittent tinnitus in both ears
before the explosion but said that the volume had increased in his right ear. At the hearing,
he testified that he had experienced ringing in his ears before the explosion, but it would
occur only every three or four months, and it always went away. He had never consulted a
doctor about it. He denied suffering from any hearing loss before the explosion. He also
testified that he initially thought the problem was mainly in his right ear but discovered at
the audiologist’s office that the hearing loss in his left ear was actually worse.
Dr. Stein assessed Tipton on August 15 as having “mild to severe/profound high
frequency, sensorineural hearing loss, bilaterally, with type A/As tympanograms and 88%
right/80% left word recognition at elevated levels.” She recommended referral to an ear,
nose, and throat physician for a trial with digital hearing aids with tinnitus masker. In joint
progress notes dated August 15, otolaryngologist (ENT) Bryan Lansford and APRN Heidi
Cohn diagnosed Tipton with tinnitus of the right ear and ordered a CT scan of his temporal
bones, which was conducted on September 5. In a report dated September 7, Dr. Lansford
and Ms. Cohn diagnosed Tipton with tinnitus of the right ear, sensation of fullness in the
1 He was treated for those injuries, and appellants did not controvert payment for this treatment. In addition to the issue on appeal, appellants also controverted a claim for a mental injury. The Commission found Tipton had failed to prove that he sustained a compensable mental injury, and he has not appealed from that finding.
2 right ear, sensorineural hearing loss of both ears, and chronic maxillary sinusitis. Dr. Stein
performed a second test, an audiogram, on September 6, 2017, and set forth hearing-loss
calculations based on that audiogram in a worksheet dated October 17, 2018. She assessed
Tipton at 20.6 percent hearing loss in his left ear and 13.1 percent in his right, for a
combined binaural hearing loss of 14.4 percent.
On July 31, 2019, an administrative law judge (ALJ) held a hearing on the disputed
issues and found that Tipton had met his burden of proof with respect to a compensable
acute hearing-loss injury, was entitled to reasonably necessary medical treatment in relation
thereto, and was entitled to permanent anatomic-impairment benefits for binaural hearing
loss in the amount of 14.4 percent. The Commission affirmed the decision of the ALJ and
adopted his findings and conclusions. When the Commission affirms and adopts the ALJ’s
opinion, thereby making the findings and conclusions of the ALJ the Commission’s findings
and conclusions, we consider both the ALJ’s opinion and the Commission’s opinion in our
review. Emergency Ambulance Serv., Inc. v. Burnett, 2015 Ark. App. 288, at 2, 462 S.W.3d
369, 371.
On appeal, appellants argue that the Commission’s finding that Tipton suffered a
binaural hearing-loss injury is not supported by substantial evidence. First, they contend that
Tipton sought treatment solely for injury to his right ear and testified that he did not think
he had injured his left ear. Appellants argue that the Commission ignored this testimony,
arbitrarily disregarding the testimony of a witness. They claim that there is no evidence that
the left-ear hearing loss is related to the work accident because Tipton failed to complain of
left-ear hearing loss; thus, its decision is based on speculation and conjecture.
3 Second, they argue that the medical evidence presented did not comply with the
requirements of the definition of objective findings for hearing loss. 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 cannot come under the voluntary
control of the patient. Ark. Code Ann. § 11-9-102(16). The statutory definition of
“objective findings” provides the following with regard to hearing loss:
(iii)(a) Objective evidence necessary to prove physical or anatomical impairment in occupational hearing loss cases may be established by medically recognized and accepted clinical diagnostic methodologies, including, but not limited to, audiological tests that measure air and bone conduction thresholds and speech discrimination ability.
(b) Any difference in the baseline hearing levels must be confirmed with a subsequent test within the next four (4) weeks but not before five (5) days and being adjusted for presbycusis.
Ark. Code Ann. § 11-9-102(16)(A)(iii).
Appellants argue that it “appears” that the audiological tests performed on August 15
included a tympanogram and a word-recognition test. On September 6, 2017, Tipton had
an audiogram and a temporal bone CT scan. Appellants claim that the confirmatory
audiological tests performed pursuant to Ark. Code Ann. § 11-9-102(16)(A)(iii)(b) must be
the same as the original test and that the results from the second test must “match” the
results from the first test in order to constitute confirmation of the baseline hearing levels.
They also argue that the hearing levels in this case were not adjusted for presbycusis—or
degenerative changes in the ear that occur in old age—which they argue the statute requires.
Finally, appellants contend that that the Commission’s opinion improperly placed
the burden of proof on them. Specifically, they argue that the lack of evidence
4 demonstrating proof of the above statutory requirements constituted a failure by Tipton to
meet his burden of proof. See, e.g., Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 269,
19 S.W.3d 36
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Cite as 2020 Ark. App. 416 Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-07-12 11:16:02 DIVISION IV Foxit PhantomPDF Version: No. CV-20-128 9.7.5
Opinion Delivered: September 23, 2020 CRAIGHEAD COUNTY AND AAC RISK MANAGEMENT SERVICES APPEAL FROM THE ARKANSAS APPELLANTS WORKERS’ COMPENSATION COMMISSION V. [NO. G901108]
GARLAND TIPTON
APPELLEE AFFIRMED
RITA W. GRUBER, Chief Judge
Craighead County and AAC Risk Management Services appeal from a decision of
the Arkansas Worker’s Compensation Commission (the “Commission”) finding that
appellee Garland Tipton proved he sustained a compensable binaural hearing-loss injury and
awarding benefits therefor. Appellants contend that substantial evidence does not support
the Commission’s decision that Tipton injured his left ear in the work-related accident or
demonstrate objective medical findings of hearing loss. They also argue that the
Commission’s opinion improperly placed the burden of proof on appellants instead of on
Tipton. We affirm the Commission’s decision.
At the time of his injury, Tipton was fifty-seven years old and had worked as a deputy
sheriff in Craighead County for eight years. On July 25, 2017, Tipton responded to a call
from his niece, who said her husband was acting strangely and had locked himself in a shed. After Tipton approached the shed, it exploded, and he was thrown three to four feet,
resulting in injuries to his forearm and shoulder.1
After the explosion, Tipton also complained of loss of hearing, tinnitus, and a
sensation of fullness in his right ear. At an appointment on August 15, 2017, with audiologist
Amy Stein, Tipton admitted that he had suffered from intermittent tinnitus in both ears
before the explosion but said that the volume had increased in his right ear. At the hearing,
he testified that he had experienced ringing in his ears before the explosion, but it would
occur only every three or four months, and it always went away. He had never consulted a
doctor about it. He denied suffering from any hearing loss before the explosion. He also
testified that he initially thought the problem was mainly in his right ear but discovered at
the audiologist’s office that the hearing loss in his left ear was actually worse.
Dr. Stein assessed Tipton on August 15 as having “mild to severe/profound high
frequency, sensorineural hearing loss, bilaterally, with type A/As tympanograms and 88%
right/80% left word recognition at elevated levels.” She recommended referral to an ear,
nose, and throat physician for a trial with digital hearing aids with tinnitus masker. In joint
progress notes dated August 15, otolaryngologist (ENT) Bryan Lansford and APRN Heidi
Cohn diagnosed Tipton with tinnitus of the right ear and ordered a CT scan of his temporal
bones, which was conducted on September 5. In a report dated September 7, Dr. Lansford
and Ms. Cohn diagnosed Tipton with tinnitus of the right ear, sensation of fullness in the
1 He was treated for those injuries, and appellants did not controvert payment for this treatment. In addition to the issue on appeal, appellants also controverted a claim for a mental injury. The Commission found Tipton had failed to prove that he sustained a compensable mental injury, and he has not appealed from that finding.
2 right ear, sensorineural hearing loss of both ears, and chronic maxillary sinusitis. Dr. Stein
performed a second test, an audiogram, on September 6, 2017, and set forth hearing-loss
calculations based on that audiogram in a worksheet dated October 17, 2018. She assessed
Tipton at 20.6 percent hearing loss in his left ear and 13.1 percent in his right, for a
combined binaural hearing loss of 14.4 percent.
On July 31, 2019, an administrative law judge (ALJ) held a hearing on the disputed
issues and found that Tipton had met his burden of proof with respect to a compensable
acute hearing-loss injury, was entitled to reasonably necessary medical treatment in relation
thereto, and was entitled to permanent anatomic-impairment benefits for binaural hearing
loss in the amount of 14.4 percent. The Commission affirmed the decision of the ALJ and
adopted his findings and conclusions. When the Commission affirms and adopts the ALJ’s
opinion, thereby making the findings and conclusions of the ALJ the Commission’s findings
and conclusions, we consider both the ALJ’s opinion and the Commission’s opinion in our
review. Emergency Ambulance Serv., Inc. v. Burnett, 2015 Ark. App. 288, at 2, 462 S.W.3d
369, 371.
On appeal, appellants argue that the Commission’s finding that Tipton suffered a
binaural hearing-loss injury is not supported by substantial evidence. First, they contend that
Tipton sought treatment solely for injury to his right ear and testified that he did not think
he had injured his left ear. Appellants argue that the Commission ignored this testimony,
arbitrarily disregarding the testimony of a witness. They claim that there is no evidence that
the left-ear hearing loss is related to the work accident because Tipton failed to complain of
left-ear hearing loss; thus, its decision is based on speculation and conjecture.
3 Second, they argue that the medical evidence presented did not comply with the
requirements of the definition of objective findings for hearing loss. 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 cannot come under the voluntary
control of the patient. Ark. Code Ann. § 11-9-102(16). The statutory definition of
“objective findings” provides the following with regard to hearing loss:
(iii)(a) Objective evidence necessary to prove physical or anatomical impairment in occupational hearing loss cases may be established by medically recognized and accepted clinical diagnostic methodologies, including, but not limited to, audiological tests that measure air and bone conduction thresholds and speech discrimination ability.
(b) Any difference in the baseline hearing levels must be confirmed with a subsequent test within the next four (4) weeks but not before five (5) days and being adjusted for presbycusis.
Ark. Code Ann. § 11-9-102(16)(A)(iii).
Appellants argue that it “appears” that the audiological tests performed on August 15
included a tympanogram and a word-recognition test. On September 6, 2017, Tipton had
an audiogram and a temporal bone CT scan. Appellants claim that the confirmatory
audiological tests performed pursuant to Ark. Code Ann. § 11-9-102(16)(A)(iii)(b) must be
the same as the original test and that the results from the second test must “match” the
results from the first test in order to constitute confirmation of the baseline hearing levels.
They also argue that the hearing levels in this case were not adjusted for presbycusis—or
degenerative changes in the ear that occur in old age—which they argue the statute requires.
Finally, appellants contend that that the Commission’s opinion improperly placed
the burden of proof on them. Specifically, they argue that the lack of evidence
4 demonstrating proof of the above statutory requirements constituted a failure by Tipton to
meet his burden of proof. See, e.g., Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 269,
19 S.W.3d 36, 38 (2000) (holding the claimant has the burden of proving by a
preponderance of the evidence that his claim is compensable in a workers’-compensation
case).
This court views the evidence and all reasonable inferences in the light most favorable
to the Commission’s findings and affirms if they are supported by substantial evidence. Pyle
v. Woodfield, Inc., 2009 Ark. App. 251, 306 S.W.3d 455. Substantial evidence is that which
a reasonable mind might find as adequate to support a conclusion. Id. The question is not
whether the evidence would have supported findings contrary to the ones made by the
Commission; rather, it is whether there is substantial evidence to support the Commission’s
decision even though we might have reached a different conclusion if we sat as the trier of
fact. Burris v. L & B Moving Storage, 83 Ark. App. 290, 123 S.W.3d 123 (2003). Credibility
questions and the weight to be given to witness testimony are within the Commission’s
exclusive province. Pack v. Little Rock Convention Ctr. & Visitors Bureau, 2013 Ark. 186, 427
S.W.3d 586. It is also within the Commission’s province to weigh all the medical evidence
and to determine what is most credible. Minn. Mining & Mfg. v. Baker, 337 Ark. 94, 989
S.W.2d 151 (1999). We have long held that the Commission’s decision to accept or reject
medical opinions and how it resolves conflicting medical evidence has the force and effect
of a jury verdict. St. Edward Mercy Med. Ctr. v. Chrisman, 2012 Ark. App. 475, 422 S.W.3d
171.
5 We turn now to appellants’ arguments. In their second argument, appellants contend
that the medical evidence does not meet the objectivity standards set forth in the statute,
but in their first argument, they essentially ask us to ignore the objective medical evidence
and focus instead on Tipton’s subjective complaints of hearing loss in the right ear only.
Although Tipton testified that he initially thought his hearing loss was only in his right ear
and he reported a sensation of “fullness” in his right ear, the medical evidence demonstrated
that Tipton suffered hearing loss in both ears, his subjective complaints notwithstanding.
Tipton testified that while he had experienced intermittent bouts of tinnitus before the
accident, he had never experienced hearing loss, and the tinnitus always “went away.”
Credibility and the weight to be given to witness testimony as well as the resolution of
conflicting medical evidence are within the Commission’s exclusive province. Pack, 2013
Ark. 186, 427 S.W.3d 586. Its decision finding binaural hearing loss rather than hearing loss
in the right ear only is not based on speculation and conjecture but rather on objective
medical evidence.
Second, the Commission’s finding that Tipton suffered binaural hearing loss is
supported by objective findings. The relevant statute states that objective evidence of
impairment in hearing-loss cases “may be established by medically recognized and accepted
clinical diagnostic methodologies, including, but not limited to, audiological tests that
measure air and bone conduction thresholds and speech discrimination ability.” Ark. Code
Ann. § 11-9-102(16)(A)(iii). The hearing loss must then be confirmed by a second test
within four weeks. Id. The medical evidence here included two objective hearing-loss tests
performed by Dr. Stein, one on August 15 and one three weeks later on September 6. The
6 statute does not provide that the test to confirm the hearing loss must be identical to the
original test or that the results of the two tests must be identical. Here, the two tests were
consistent in revealing that Tipton had binaural hearing loss. The first measured the loss at
12 percent in the right ear and 20 percent in the left ear. The second measured the loss at
13.1 percent in the right ear and 20.6 percent in the left ear. In addition, Dr. Lansford and
Ms. Cohn evaluated Tipton and conducted a CT scan of his temporal bones and diagnosed
tinnitus of the right ear, sensation of fullness in the right ear, sensorineural hearing loss of
both ears, and chronic maxillary sinusitis. The interpretation given to medical evidence by
the Commission has the weight and force of a jury verdict, and this court is powerless to
reverse the Commission’s decision regarding which medical evidence it chooses to accept.
Best W. Inn & Union Ins. of Providence v. Paul, 2014 Ark. App. 520, at 6, 443 S.W.3d 551,
555. The evidence presented complies with the relevant statute.
Finally, appellants argue that the audiology tests were not adjusted for presbycusis,
which they argue the statute requires. We disagree that the statute requires adjustment in all
cases. Here, the ALJ specifically considered presbycusis in his opinion, finding that there
were no medical records demonstrating any pre-incident hearing loss or otherwise
suggesting that Tipton’s post-incident audiology tests should have been adjusted for
presbycusis. Appellants point to no evidence to demonstrate otherwise and no legal authority
to support their argument that the statute requires the results of audiology tests to be adjusted
in all cases.
Appellants’ third point on appeal is that the Commission’s opinion improperly placed
the burden of proof on them. Specifically, they contend that the statute requires the baseline
7 hearing levels to be confirmed in a subsequent test and adjusted for presbycusis. They
contend that Tipton did not introduce evidence that these requirements were met; thus, he
failed to carry his burden to prove a compensable injury. As we explained, we disagree with
appellants’ interpretation of the statute and hold that substantial evidence of binaural hearing
loss caused by the explosion exists to support the Commission’s decision. There was no
evidence that Tipton suffered from hearing loss before the incident. Medical evidence was
introduced to prove that Tipton suffered from binaural hearing loss after the incident.
We will reverse the Commission’s decision only if we are convinced that fair-minded
persons could not have reached the same conclusion with the same facts before them.
Viewing the evidence in the light most favorable to the Commission’s decision, we hold
that substantial evidence supports its decision that Tipton sustained a compensable hearing-
loss injury, is entitled to reasonably necessary medical treatment in relation thereto, and is
entitled to permanent anatomic-impairment benefits for binaural hearing loss in the amount
of 14.4 percent.
Affirmed.
VAUGHT and MURPHY, JJ., agree.
Jason M. Ryburn, for appellants.
Wells & Wells, PLLC, by: Phillip Wells, for appellee.