Vann v. FedEx Freight, Inc.

551 S.W.3d 432
CourtCourt of Appeals of Arkansas
DecidedJune 6, 2018
DocketNo. CV–18–116
StatusPublished
Cited by1 cases

This text of 551 S.W.3d 432 (Vann v. FedEx Freight, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vann v. FedEx Freight, Inc., 551 S.W.3d 432 (Ark. Ct. App. 2018).

Opinion

DAVID M. GLOVER, Judge

Kenneth Vann sustained a compensable injury on November 30, 2015, while employed by FedEx Freight, Inc. (FedEx). He had been employed by FedEx since 1997 and was approximately fifty-seven years old when the injury occurred. The administrative law judge (ALJ) found: Vann proved he had sustained a permanent physical impairment in the amount of 20 percent to his body as a whole; and Vann did not sustain his burden of proving permanent total disability (PTD), but did prove he was entitled to 70 percent wage-loss disability in addition to his anatomical loss. The ALJ also awarded Vann's counsel maximum attorney fees pursuant to Arkansas Code Annotated section 11-9-715 (Repl. 2012). FedEx appealed the decision to the full Workers' Compensation Commission.

The Commission affirmed the ALJ's finding that Vann failed to prove PTD; reduced Vann's permanent physical-impairment rating from 20 percent to 5 percent; and reduced Vann's wage-loss award from 70 percent to 20 percent. The Commission's opinion said nothing about attorney fees. This appeal followed. Vann contends: 1) the Commission's decisions that his impairment rating is only 5 percent and his wage loss only 20 percent are not supported by substantial evidence and must be reversed, and 2) the Commission's failure to award him attorney fees is error. FedEx did not cross-appeal. We affirm the Commission's permanent physical-impairment and wage-loss ratings, and we remand to the Commission for a determination of attorney fees.

*435In reviewing workers'-compensation decisions, 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. Kroger Ltd. P'ship I v. Fee , 2014 Ark. App. 577, 446 S.W.3d 628. Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions made by the Commission. Id. It is within the Commission's sole province to determine credibility and the weight to be given a witness's testimony. Id. The Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. The Commission has the duty of weighing medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Id. The issue is not whether we might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission, in which case we must affirm. Cooper v. University of Ark. for Med. Scis. , 2017 Ark. App. 58, 510 S.W.3d 304.

At the hearing before the ALJ, Vann testified he was born in 1958, graduated from high school, obtained a two-year degree in nuclear engineering with Isomedix through Mississippi State, and worked for Isomedix for fourteen years. Before starting his job at FedEx, Vann owned a liquor store and a fence company. He began working at FedEx on January 9, 1997, as an over-the-road truck driver. On November 30, 2015, Vann slipped when he got to the driver's side of his truck at the start of a shift and was unconscious for 40 to 45 minutes. It is this fall that serves as the basis for his workers'-compensation claims.

Vann testified he was fine before the accident but is afraid to try to drive now because he cannot feel his feet; he can walk about 200 feet with a walker or cane before he wears out; and his lower back really bothers him and is numb from midway down to his tailbone. He explained he had just passed his Department of Transportation physical exam four months before the accident, and two weeks before to the accident he had seen his personal doctor for a physical exam.

Vann described his symptoms following the accident to include numbness in his arms and hands, lower back, and lower extremities; incontinence; and headaches. He testified he had driven for FedEx for nineteen years and had none of those symptoms before the accident. Vann acknowledged a motorcycle accident twenty-three years ago that fractured his skull. He also testified he had gained about thirty pounds since the accident and was again required to take Metformin, a diabetes medication that he had been able to discontinue earlier because he had lost a significant amount of weight. On cross-examination, Vann explained that he had also hurt his neck and his tailbone as a result of the FedEx fall. He also stated that, despite Dr. Parsioon's report of not being able to objectively find anything to explain Vann's complaints regarding his brain and cervical spine, Dr. Parsioon had told him his neck was twisted in a way that pushed against his spinal cord. When asked about reports that linked the numbness in his extremities to carpal-tunnel syndrome and "some other neuropathy," he stated he found it strange he was walking fine before the accident and "could feel everything."

*436Vann testified he could not stand or sit for long periods of time, and he could maybe answer a phone but would have trouble writing notes because of the numbness in his hands. He described his condition as depressing.

Alice Vann testified she and Kenneth had been married twenty-six years, and she had known him for fifteen years prior to their marriage. She said his health condition was perfectly fine before the fall in November 2015. Alice said at first they thought it was just a "neck thing" and a concussion that might take a few weeks to recover, but as time went on, he was not recovering. She stated he has not been able to walk without a cane since the day of the fall; he was very shaky and had a lot of lower-back and leg pain; he could not sleep at night; and he had a lot of numbness from his elbows down and his knees down. She testified his muscles began to atrophy to the point he had trouble pulling up on his walker, but that physical and occupational therapy had helped him. Alice said nerve blocks had helped his lower-back and tailbone pain, but workers' compensation had stopped paying for it and other medical services, and without the nerve blocks, he was in constant pain. She indicated he takes Advil for his headaches and muscle relaxers at night for his leg pain so he can sleep.

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Bluebook (online)
551 S.W.3d 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vann-v-fedex-freight-inc-arkctapp-2018.