Sears Roebuck & Co.; Ace American Insurance Co.; And Sedgwick Cms v. Dale Brown

2020 Ark. App. 93, 594 S.W.3d 896

• Court: Court of Appeals of Arkansas
• Decided: February 12, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 93 Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-06-30 12:18:20 DIVISION I Foxit PhantomPDF Version: No. CV-19-630 9.7.5

Opinion Delivered: February 12, 2020 SEARS ROEBUCK & CO.; ACE AMERICAN INSURANCE CO.; AND SEDGWICK CMS APPEAL FROM THE ARKANSAS APPELLANTS WORKERS’ COMPENSATION COMMISSION V. [NO. G600518]

DALE BROWN APPELLEE AFFIRMED

RITA W. GRUBER, Chief Judge

Appellant Sears Roebuck & Co. and its insurers appeal a decision of the Arkansas

Workers’ Compensation Commission (Commission) awarding benefits to appellee Dale

Brown arising out of a motor vehicle accident. On appeal, appellants argue that the

Commission’s decision is not supported by substantial evidence. Specifically, they argue that

(1) there is no substantial evidence to support Brown’s claim that the driver of the other

vehicle was traveling thirty miles an hour at the time of the accident, and (2) the medical

evidence on which the Commission relied is speculative and cannot be substantial evidence.

We affirm.

Dale Brown began working for Sears in February 2015 as a residential-appliance-

repair technician. On May 11, 2015, he was in an accident while driving the company van

from one job to another. At the hearing before the administrative law judge (ALJ), Brown

testified that he was rear-ended while stopped at a red light. According to the accident report, he gave the same account. The other driver, Lavonda Douglas, reported to police

that she was at a complete stop when Brown backed into her and gave the name and phone

number of a witness who was behind her who allegedly told Douglas that she saw Brown’s

van backing up. Douglas provided the same account in an affidavit introduced at the hearing.

Brown testified that when the impact occurred, it threw his body forward and hurt

his neck. He explained that his left arm or hand was positioned on the steering wheel at the

time of the accident. He stated that Douglas was traveling approximately thirty-five miles

an hour when she hit him. He denied that he was moving at the time of the accident.

Shortly after the accident occurred, he reported it to his supervisor, the insurance company,

and the company from whom the van was leased.

Brown went to see his family physician, Dr. Gill Pillow, on May 14, 2015, three

days after the accident. He complained of neck and back pain as well as shoulder stiffness.

Dr. Pillow continued to see Brown over the following months and ordered an MRI without

contrast of his cervical, thoracic, and lumbar spine, which took place on November 17 or

18, 2015. Based on the MRI results, Dr. Pillow took Brown off work on November 20,

2015, until he could be seen by a neurosurgeon because the MRI showed “extensive

pathology, including bleeding around the spinal cord.” Brown was seen by a neurosurgeon,

Dr. David Connor, on December 16, 2015. Dr. Connor’s notes reflect that Brown gave a

history of sudden onset back and neck pain following the accident seven months earlier. His

assessment was cervical spondylosis and radiculopathy with an impression of C5-6

central/left paracentral disc protrusion and C6-7 broad disc protrusion with left greater than

right foraminal narrowing; lumbosacral spondylosis with radiculopathy with an impression

2 of L3-L5 spondylosis with foraminal narrowing; and thoracic cyst with an impression of T4-

T7 central myelomalacia with T6-7 dorsal cyst/compression. An MRI with and without

contrast was taken in February 2016 and showed “anteriorly displaced and compressed

thoracic cord at the T6 level, likely secondary to a posterior spinal arachnoid cyst with

associated edema/ischemia in the immediately adjacent thoracic cord from T4-5 down to

T6 level.”

Dr. Rommell Childress, an orthopedic surgeon, performed an independent medical

exam (IME) in April 2016. His notes indicate that Brown was involved in an accident in

which he was rear-ended by another vehicle going an “estimated 30 mph or so.” When

asked if the spinal hemorrhage noted in the November 2015 MRI is causally related to the

May 2015 injury, Dr. Childress responded:

It appears that the trauma of the MVA [motor vehicle accident] is the thing that has precipitated this. However, without an MRI scan documenting the status of the spine prior to the injury, the question could not be answered definitively. However, with the history of injury that the patient had, the assumption is that the hemorrhage is the result of the trauma. I would depend on a Neuro Surgeon, to give [a] definitive answer regarding this, but the assumption is that with the trauma and the evidence of cord contusion and hemorrhage, the MVA is the source of this type of acute finding.

Dr. Childress concluded that Brown should continue to see the neurosurgeon, should not

work until released by the neurosurgeon, and had not reached maximum medical

improvement.

Brown returned to Dr. Connor on April 6 and June 1, 2016. After the June visit,

Dr. Connor noted that Brown had returned after conservative measures of muscle relaxers

and physical therapy had not relieved his neck pain. In his notes, Dr. Connor wrote that

Brown “requests surgical correction and I have discussed the risks and benefits of a C5-6,

3 C6-7 anterior cervical discectomy and fusion. He has agreed to undergo this procedure on

7/1/16.”

On June 10, Dr. Wayne Bruffett conducted an IME at appellants’ request. His

assessment of Brown was “degenerative disease cervical spine abnormal MRI scan chronic

without upper neuron signs degenerative disc disease lumbar spine.” Dr. Bruffett did not

see objective medical evidence supporting injury to Brown’s cervical spine. He could not

say to a reasonable degree of medical certainty that degenerative changes were exacerbated

due to the accident. He noted that Brown stated he was having surgery because of

“whiplash,” and although he did not have the surgeon’s latest note, he did not feel that it

was an “objective injury to the cervical spine” as a result of this accident. He also did not

see objective medical evidence to support an injury to the thoracic spine, stating within a

reasonable degree of medical certainty that “based on the mechanism of injury this accident

did not cause an objective injury to the thoracic spine.” According to Brown’s testimony,

Dr. Bruffett had pictures of the wrecked vehicles in the examination room. Brown said the

van in the picture was not in the same condition as he remembered after the accident.

Because he is not a shoulder specialist, Dr. Bruffett did not form an opinion as to Brown’s

shoulder. Ultimately, Dr. Bruffett thought Brown had reached maximum medical

Dr. Connor performed the anterior cervical discectomy and fusion surgery on July

1, 2016, and ordered that Brown remain off work until August 15, 2016, when he could

return with restrictions. At an August 10, 2016, follow-up appointment, Dr. Connor noted

that Brown was “progressing quite nicely” but continued to complain of left-shoulder pain

4 and limited range of motion. Brown saw Dr. Pillow on August 17, 2016, for his left-

shoulder injury. An MRI was ordered; it showed partial thickness and articular surface

tearing at the posterior supraspinatus tendon. Brown was referred to Dr. William Hefley.

On September 14, 2016, Brown was seen by Dr. Hefley, who treated him with a

steroid injection and prescribed physical therapy, noting that without improvement, the

shoulder injury would require surgery. On October 21, 2016, Brown returned to Dr.

Hefley, who told him that if he was improving, he could return to work. If he was not

improving, Dr. Hefley thought there was enough pathology to require arthroscopy for

debridement or even possible repair. The note provided that Brown had to go back to

work for financial reasons. Brown was directed to continue his exercises on his own and to

return if he was unable to perform his duties or felt unsafe, at which point surgery would

be considered.

Brown returned to Dr. Hefley on September 27, 2017, for continued shoulder pain

since the accident. A left-shoulder arthroscopy was performed on December 14, 2017. It

revealed a rotator-cuff tear, SLAP tear, and anterior/inferior labral tear, which were

repaired. Dr. Hefley’s January 3, 2018, chart note provides that Brown called requesting

clarification that his left-arm surgery was secondary to the accident. The note stated that

Brown reported no prior problems with his shoulder and began having problems after the

accident. Dr. Hefley “fe[lt] the MVA is the cause of his shoulder pathology.”

Appellants requested that Dr. Kirk Reynolds review Brown’s claim of injury to his

left shoulder. Upon review of only the records, he opined that Brown’s left-shoulder pain

and pathology were not causally related to the accident. He noted the inaccuracy of Dr.

5 Hefley’s January 3, 2018, chart note indicating that Brown had no prior complaints of

shoulder pain because Dr. Pillow’s May 25, 2011, records show Brown had been seen for

bilateral shoulder pain.

Although the parties stipulated that Brown sustained compensable injuries in the

accident, they agreed that the issues to be litigated at the hearing before the ALJ included

“compensability (causal relationship).” The ALJ found that Brown’s cervical-spine and left-

shoulder injuries were compensable as a result of the accident but that Brown did not meet

his burden of proof that he sustained an injury to his lumbar spine. Appellants appealed, and

the Commission affirmed the decision of the ALJ in its own opinion. Appellants filed a

timely notice of appeal.

In reviewing decisions of the Commission, we view the evidence and all reasonable

inferences deducible therefrom in the light most favorable to the Commission’s findings,

and we affirm if the decision is supported by substantial evidence. La-Z-Boy Mfg., Inc. v.

Bruner, 2016 Ark. App. 117, at 5, 484 S.W.3d 700, 703. Substantial evidence exists if

reasonable minds could reach the Commission’s conclusion. Get Rid of It Ark. v. Graham,

2016 Ark. App. 88, at 10. We will not reverse the Commission’s decision unless fair-minded

persons with the same facts before them could not have reached the Commission’s

conclusions. Id. The issue is not whether we might have reached a different result or

whether the evidence would have supported a contrary finding. Id. Furthermore, we are

bound by the Commission’s determinations on issues of credibility. Pina v. Wal-Mart Stores,

Inc., 91 Ark. App. 77, 83, 208 S.W.3d 236, 239 (2005).

6 To prove the occurrence of a specific-incident compensable injury, the claimant

must establish by a preponderance of the evidence (1) that an injury occurred arising out of

and in the scope of employment; (2) that the injury caused internal or external harm to the

body that required medical services or resulted in disability or death; (3) that the injury is

established by medical evidence supported by objective findings, as defined in Ark. Code

Ann. § 11-9-102(16); and (4) that the injury was caused by a specific incident and is

identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i)–(ii)

(Repl. 2012).

First, appellants argue that there is no substantial evidence to support Brown’s claim

that the driver of the other vehicle was traveling thirty miles an hour at the time of the

accident. They contend that Brown’s testimony about the speed of the accident was

“nothing but speculation.”

The Commission noted the two drivers involved in the accident could not have had

more different versions of the accident—Brown claimed he was rear-ended while stopped,

and Douglas stated that Brown suddenly backed into her while at the stop light. Douglas,

in her affidavit, indicated that a witness behind her saw Brown’s reverse lights come on just

before the accident and that she provided the witness’s name and phone number on the

police report. The Commission noted that there was nothing in the record to indicate

whether anyone attempted to contact the witness or whose version the witness would have

corroborated. In addition, the Commission noted that it was undisputed that the work van

had approximately $2000 in damage to the bumper and that there did not appear to be

much damage to the other vehicle.

7 The Commission wrote,

Although it was clear that either Claimant or the other driver was lying, there is no independent evidence in the record to suggest which driver was lying. Perhaps testimony, rather than an affidavit, of the other driver and testimony or even an affidavit, of the other witness would have helped flesh out this matter. Without more, we find the objective medical evidence supports Claimant’s version of the wreck and the opinions of Claimant’s treating physicians.

Contrary to appellants’ contention, this issue is one of credibility and weight to be

accorded to the evidence. Our case law on this issue is clear. Credibility of witnesses is

properly the province of the Commission, which had the benefit of the witnesses’ presence

to judge their demeanor and determine the weight to be accorded their statements. Gansky

v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). It is the Commission, not this

court, that resolves contradictions, determines the credibility of witnesses, and weighs the

evidence. Marten Transp., Ltd. v. Morgan, 2017 Ark. App. 608, 532 S.W.3d 139. It is not a

matter of whether we would have reached a different conclusion but whether reasonable

minds could reach the Commission’s conclusions. Get Rid of It Ark., 2016 Ark. App. 88, at

10. We find no error by the Commission.

For their second point, appellants contend that the medical evidence on which the

Commission relied is also speculative and cannot be substantial evidence. This argument is

related to their first argument. They suggest that because the physicians relied on Brown’s

speculative version of Douglas’s speed, the medical opinions based thereon are also

speculative and thus cannot be substantial evidence. Stated another way, appellants, citing

Wirth v. Reynolds Metal Co., 58 Ark. App. 161, 167, 947 S.W.2d 401, 404 (1997), state that

the physicians engaged in the “logical fallacy known as post hoc ergo propter hoc, meaning ‘after

this and therefore because of this.’” They explain that the physicians attribute Brown’s

8 condition to the accident because he complained of pain after the accident but offer no

objective findings in support of that conclusion—only the sequence of events—and contend

that such reasoning cannot establish causation.

Appellants contend that speculation is not substantial evidence sufficient to support a

Commission ruling, citing Arkansas Department of Correction v. Glover, 35 Ark. App. 32, 812

S.W.2d 692 (1991). Their reliance on Glover is misplaced. The issue there was whether the

employee was performing employment services at the time of his death. There was evidence

that when Glover finished his shift, a superior asked him to help with an errand. There was

no indication that the errand was related to work, but instead the two men rode around

drinking beer. In reversing the Commission’s decision, we stated there was no substantial

evidence to support a finding that Glover felt obligated to assist a superior ranking officer.

“Such a finding would be based on conjecture and speculation. Conjecture and speculation,

even if plausible, cannot take the place of proof. Dena Constr. Co. v. Herndon, 264 Ark. 791,

575 S.W.2d 155 (1979).” Glover, 35 Ark. App. at 36–37, 812 S.W.2d at 695. Here, there

was a stipulation that Brown sustained compensable injuries.

While appellants challenge the medical evidence in support of causation, it should be

mentioned that objective medical evidence is necessary to establish the existence and extent

of an injury but not essential to establish the causal relationship between the injury and a

work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 447, 990 S.W.2d

522, 524 (1999) (adopting this court’s holding in Stephens Truck Lines v. Millican, 58 Ark.

App. 275, 950 S.W.2d 472 (1997)). Our supreme court stated:

The plethora of possible causes for work-related injuries includes many that can be established by common-sense observation and deduction. To require medical proof

9 of causation in every case appears out of line with the general policy of economy and efficiency contained within the workers’ compensation law. To be sure, there will be circumstances where medical evidence will be necessary to establish that a particular injury resulted from a work-related incident but not in every case.

In VanWagner, the supreme court went on to explain that adopting the Millican

holding did not completely resolve the case. It meant only that VanWagner need not

produce objective medical evidence that the fall she said occurred caused her injury where

objective medical evidence established the injury’s existence, and a preponderance of other

nonmedical evidence established a causal relation to a work-related incident. The question

became whether VanWagner met her burden. The supreme court acknowledged that the

principal evidence of causation for VanWagner’s injury consisted of her own testimony.

She testified regarding the fall, reporting it to her supervisor, seeking medical attention and that others present witnessed it. She also offered some physician testimony recorded months later which was at best inconclusive. Appellant countered this evidence with the testimony of appellee’s supervisor who could not remember the incident and with physicians’ statements in which the physicians were unwilling to state a causal connection between the alleged fall and appellee’s medical condition. This case then resolves down to a matter of credibility. Was the claimant’s story believable?

VanWagner, 337 Ark. at 447, 990 S.W.2d at 525. Whether VanWagner met her burden of

proving causation turned on credibility, which was a matter for the Commission to

determine. Further, the Commission may reject a doctor’s opinion as to causation when it

is based on a history from the claimant that the Commission has determined is

not credible. Davis v. Remington Arms Co., 2018 Ark. App. 390, at 7, 557 S.W.3d 894, 900

(citing Roberts v. Whirlpool, 102 Ark. App. 284, 289, 284 S.W.3d 100, 103 (2008)). The

Commission did not do so in this case.

10 In sum, appellants are requesting that we make contrary credibility determinations

and reweigh the evidence in this case. Although our court may have made different findings,

it is the Commission’s duty rather than ours to make credibility determinations, to weigh

the evidence, and to resolve conflicts in medical opinions, evidence, and testimony. See Ark.

Dep’t of Transp. v. Abercrombie, 2019 Ark. App. 372, at 13, 584 S.W.3d 701, 710. We hold

that substantial evidence supports the Commission’s decision.

Affirmed.

ABRAMSON and MURPHY, JJ., agree.

Wright, Lindsey & Jennings LLP, by: Lee J. Muldrow and Gary D. Marts, Jr., for

appellants.

Hunter Law Firm, P.A., by: Scott Hunter, Jr., for appellee.