{
  "id": 6141684,
  "name": "GAITHER APPLIANCE v. Ricky STEWART",
  "name_abbreviation": "Gaither Appliance v. Stewart",
  "decision_date": "2008-10-22",
  "docket_number": "CA 07-878",
  "first_page": "276",
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  "last_updated": "2023-07-14T22:49:33.837419+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Marshall and Heffley, JJ., agree."
    ],
    "parties": [
      "GAITHER APPLIANCE v. Ricky STEWART"
    ],
    "opinions": [
      {
        "text": "John Mauzy Pittman, Chief Judge.\nAppellee sustained an admittedly compensable neck injury while employed by appellant in March 2004. After some benefits were paid, appellee filed a claim seeking permanent partial disability benefits, wage-loss disability benefits, and additional medical benefits. The Commission found that appellee had proven that he sustained an anatomical impairment of twelve percent, wage-loss disability of fifteen percent, and entitlement to additional medical treatment, including pain management. The Commission also found that the Second Injury Fund had no liability for payment of the benefits awarded to appellee. On appeal, appellant argues that there is no substantial evidence to support the findings of a twelve percent anatomical impairment, entitlement to wage-loss benefits, or entitlement to additional medical treatment. We affirm the anatomical-impairment and medical-benefits awards. However, we find merit in the challenge to the wage-loss benefits and reverse that part of the award.\nWhen the sufficiency of the evidence is contested on appeal in a workers\u2019 compensation case, we view the evidence in a light most favorable to the Commission\u2019s findings and affirm if the findings are supported by substantial evidence. Patterson v. Arkansas Insurance Department, 343 Ark. 255, 33 S.W.3d 151 (2000). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. There may be substantial evidence to support the Commission\u2019s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo; in other words, we will not reverse the Commission\u2019s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion of the Commission. Id.\nAppellant first argues that the evidence was insufficient to support a finding of twelve-percent anatomical impairment. This argument goes to the weight and credibility of the evidence rather than to its sufficiency. Dr. Safman opined that appellee sustained anatomical impairment of twelve percent as a result of his compensable injury. Dr. Cavanaugh stated that he believed any anatomical impairment was chiefly the result of appellee\u2019s preexisting disease of the cervical spine. Here, the Commission simply chose to believe the testimony of one physician rather than the other. In such circumstances, we are powerless to reverse the Commission. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987).\nAppellant next argues that the evidence was insufficient to sustain the Commission\u2019s award of additional medical treatment for pain management. This argument is premised on appellant\u2019s assertion that appellee\u2019s impairment was the result of his preexisting condition; consequently, this, too, goes to the weight and credibility of the evidence regarding the cause of appellee\u2019s impairment. However, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Department of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted, and when it does so, its findings have the force and effect of a jury verdict. Id. As we held with respect to the previous point, despite appellant\u2019s contention that the opinion of Dr. Cavanaugh was entitled to more weight, Dr. Safman\u2019s opinion that the compensable injury was the major cause of appellee\u2019s anatomical impairment is substantial evidence to support the Commission\u2019s finding to that effect.\nFinally, appellant argues that appellee waived his right to any wage-loss benefits because he refused to participate in \u201can offered program of rehabilitation.\u201d See Ark. Code Ann. \u00a7 11-9-505 (b)(3) (Repl. 2002). There was evidence that appellee refused to talk to Heather Naylor, a vocational rehabilitation specialist employed by appellant, explaining that he declined to speak to her until \u201cafter January,\u201d i.e., after the hearing before the administrative law judge. At the hearing, appellee was asked by appellant\u2019s counsel whether he understood that he was \u201cwaiving rehabilitation\u201d by \u201ccoming here today and asking for permanent disability,\u201d to which appellee answered, \u201cThat\u2019s fine by me.\u201d The Commission nevertheless found that no waiver occurred because the above-quoted question was an incorrect statement of the law and because no specific program of rehabilitation was ever offered to appellee.\nIn Burris v. L & B Moving Storage, 83 Ark. App. 290, 123 S.W.3d 123 (2003), we upheld the Commission\u2019s construction of the statutory-waiver provision. There, the Commission\u2019s opinion stated that:\nDespite counsel\u2019s stipulation that the respondents had \u201coffered vocational rehabilitation,\u201d there was no testimony indicating what sort of rehabilitation was offered the claimant. Nor was there any record of consultation with a vocational counselor or any other offer of vocational rehabilitation. In order to rely upon Ark. Code Ann. \u00a7 11 \u2014 9-505(b)(3) in foreclosing the claimant\u2019s entitlement to permanent partial disability, the respondents must show that the claimant refused to participate in a program of vocational rehabilitation or job placement assistance, or, through some other affirmative action, indicated an unwillingness to cooperate in those endeavors.\nBurris, 83 Ark. App. at 296, 123 S.W.3d at 127.\nArkansas Code Annotated section ll-9-505(b)(3) provides that:\nThe employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entided to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.\nWe have held that the statute does not require that every claimant must formally file for rehabilitation with the Commission or waive entitlement to disability benefits where there is no evidence that a \u201cplan of rehabilitation\u201d was offered. Second Injury Fund v. Furman, 60 Ark. App. 237, 961 S.W.2d 787 (1998). Here, however, given the undisputed evidence that appellee was contacted by appellant\u2019s vocational rehabilitation specialist but refused to speak to her until after the hearing was concluded, we think that the only reasonable conclusion to be drawn was that a rehabilitation plan existed and that appellee manifested an unwillingness to cooperate. Therefore, we reverse the Commission\u2019s award of wage-loss benefits in excess of appellee\u2019s anatomical impairment.\nAffirmed in part; reversed in part; and remanded.\nMarshall and Heffley, JJ., agree.",
        "type": "majority",
        "author": "John Mauzy Pittman, Chief Judge."
      }
    ],
    "attorneys": [
      "Frye Law Firm, P.A., by: Cynthia E. Rogers, for appellant.",
      "Dodson & Dodson, LLP, by: Nelson v. Shaw, for appellee."
    ],
    "corrections": "",
    "head_matter": "GAITHER APPLIANCE v. Ricky STEWART\nCA 07-878\n288 S.W.3d 690\nCourt of Appeals of Arkansas\nOpinion delivered October 22, 2008\nFrye Law Firm, P.A., by: Cynthia E. Rogers, for appellant.\nDodson & Dodson, LLP, by: Nelson v. Shaw, for appellee."
  },
  "file_name": "0276-01",
  "first_page_order": 306,
  "last_page_order": 310
}