{
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  "name": "Helen WADE v. MR. C. CAVENAUGH'S, and Cigna Insurance Company",
  "name_abbreviation": "Wade v. Mr. C. Cavenaugh's",
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    "judges": [
      "Mayfield and Cooper, JJ., agree."
    ],
    "parties": [
      "Helen WADE v. MR. C. CAVENAUGH\u2019S, and Cigna Insurance Company"
    ],
    "opinions": [
      {
        "text": "Beth Gladden Coulson, Judge.\nThis appeal comes from the Arkansas Workers\u2019 Compensation Commission. Appellant, Helen Wade, appeals the Commission\u2019s decision rendered on October 12, 1987, finding that she is not entitled to workers\u2019 compensation benefits for psychiatric treatments and disability that she claims were caused by a compensable injury she received when the store where she was working was robbed. We remand.\nOn October 12,1985, appellant was employed as a clerk in the Mr. C. Cavenaugh\u2019s convenience store in Black Rock. During the early morning hours, two men robbed the store. One of the men punched appellant on the left side of the face, knocking her down and rendering her momentarily unconscious. After police interviewed her about the robbery, appellant finished her shift, but after she returned home appellant had a friend take her to a hospital emergency room. She was examined by a physician and also treated by a dentist. On October 13,1985, the dentist treated her for pain and inability to open her mouth because of injury from the blow to her face. On October 15, 1985, appellant was examined by the dentist, and on this occasion appellant also complained of reduced vision in her left eye. On October 21,1985, the dentist examined appellant again and released her to return to work.\nAppellant worked from October 23, 1985, until November 10, 1985, when she was fired. There was testimony that appellant\u2019s termination resulted from three cash shortages. However, the record contains testimony of a store bookkeeper who said that appellant was one of several employees who had cash shortages, and at least one of her shortages could be explained as resulting from an improper tallying procedure, not because any money was missing. On November 19,1985, appellant returned to the dentist and complained of pain in her jaw and reduced vision in her left eye. The dentist concluded that appellant should be examined by physicians.\nSeveral physicians examined appellant for her vision problem, but none of the doctors could find any physical basis for it. Dr. Walter Jay, an opthamologist, found no organic abnormality affecting appellant\u2019s vision and recommended psychological evaluation. A psychologist administered the Minnesota Multi-phasic Personality Inventory (MMPI). Appellant\u2019s personality profile was normal. The MMPI profile did not indicate a conversion disorder related to physical injuries. Dr. Jay recommended that appellant obtain psychiatric treatment closer to her home, and she became a patient of Dr. Edward Price, a psychoanalyst at Jonesboro.\nAppellees paid for appellant\u2019s medical treatment until March 1986, including her initial evaluation by Dr. Price, but refused to pay for further treatment, controverting appellant\u2019s claim for additional temporary total disability benefits and medical benefits. After two hearings, an administrative law judge denied appellant\u2019s request for additional benefits. The Commission affirmed the law judge\u2019s decision. The Commission found that appellant had failed to prove a causal connection between the compensable injury received during the robbery and the disability and additional benefits appellant claimed after her employment was terminated. Although the Commission found that appellant was upset by the robbery, it found that her emotional reaction did not rise to the level of a psychiatric problem or the level of disability within the meaning of Ark. Code Ann. \u00a7 11-9-102(5) (1987) [formerly Ark. Stat. Ann. \u00a7 81-1302(e) (Repl. 1976)].\nAppellant\u2019s five arguments for reversal may be condensed to the following three points: (1) that the Commission erred in not giving the claimant the benefit of the doubt of all factual determinations, (2) that the Commission\u2019s findings were not based on substantial evidence, and (3) that any pre-existing injury did not disqualify appellant\u2019s claim.\nAppellant\u2019s argument that the Commission erred by not giving her the benefit of the doubt lacks merit. Act 10 of 1986 states in part that the Commission must \u201cweigh the evidence impartially and without giving the benefit of the doubt to any party\u201d when determining whether a party has met the burden of proof on an issue. This court recently addressed that issue. See Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988).\nAppellant has two arguments that we find persuasive concerning the basis of the Commission\u2019s decision. Appellant argues that the Commission should be reversed because its opinion states that it found \u201csignificant\u201d that during the hearing before the law judge, appellant became upset and cried while testifying about being denied unemployment benefits and other related problems, but \u201cnot while describing the robbery.\u201d The only way the Commission could make that determination would be to rely upon the statement in the law judge\u2019s opinion or to rely upon statements in the transcript made by the court reporter and by the attorneys. In the first place, we do not believe those statements will support the Commission\u2019s finding; certainly not the finding that appellant did not become upset and cry \u201cwhile describing the robbery.\u201d In the second place, the Commission\u2019s finding about the claimant\u2019s physical reactions during her testimony before the law judge is not a matter that the Commission can see or judge for itself. It is well settled that the Commission must weigh the credibility of the witnesses and that appellate courts are not at liberty to judge the witnesses\u2019 credibility on review. Dena Construction Company v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979). Despite the deference this court must grant to the Commission in determining witnesses\u2019 credibility, we cannot allow the Commission to reach outside the record for facts that may or may not exist. Twenty-five years ago the Supreme Court of Arkansas held that \u201cit is the duty of the Commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the ruling of the Referee.\u201d Moss v. El Dorado Drilling Company, 237 Ark. 80, 371 S.W.2d 528 (1963). This rule still applies. Dedmon v. Dillard Department Stores, Inc., 3 Ark. App. 108, 623 S.W.2d 207(1981).We hold that in the instant case the Commission was not .performing its duty, as set out in Moss, supra, by reaching a conclusion based on matters that it is not in a position to evaluate for itself.\nAppellee correctly states that this court must view the evidence in the light most favorable to the findings of the Commission and that our standard of review is whether the Commission\u2019s decision is supported by substantial evidence. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Those standards must not totally insulate the Commission from judicial review and render this court\u2019s function in these cases meaningless. We will reverse a decision of the Commission where convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987). In the instant case, we cannot say that fair-minded persons would have reached the same conclusion about the \u201csignificant\u201d factor of when appellant became upset while testifying and how that factor related to her credibility and to the cause of appellant\u2019s emotional problems.\nAppellant also contends that the Commission erroneously characterized the testimony of appellant\u2019s psychiatrist, Dr. Price, concerning his opinion about the cause of appellant\u2019s emotional problems. In support of its conclusion that appellant\u2019s emotional problems were not causally linked to the robbery, the Commission stated:\nThe preponderance of the evidence in the record is that even if Wade is too traumatized to work and in need of psychotherapy, the emotional problems stem not from the robbery but from the firing and accusations regarding the alleged cash shortages and the denial of benefits by the Employment Security Division. Not only do these other matters figure much more prominently in Dr. Price\u2019s reports and testimony, but we find it significant that Wade became distraught and began crying during the hearing before the Administrative Law Judge when questioned about the ESD problems but not while describing the robbery. . .\nAlthough the Commission\u2019s opinion is correct in stating the rule from Wilson & Company v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968) that a physician\u2019s opinion is not conclusive or binding on the Commission, an administrative body like the Commission is not granted leeway to arbitrarily disregard a witness\u2019s testimony. See Richards v. Daniels, 1 Ark. App. 331, 615 S.W.2d 399 (1981). Even when questioned by appellee\u2019s attorney about the cause of appellant\u2019s difficulties, Dr. Price testified that appellant\u2019s legal problems since being fired were a \u201cprovocative factor\u201d but not the cause of her emotional problems. Dr. Price stated several times that his medical opinion was that the robbery was the cause of appellant\u2019s difficulties.\nAppellant\u2019s final point is that she should not be denied additional workers\u2019 compensation benefits merely because of evidence that she had eye problems that pre-existed her compensable injury. Appellant correctly states the rule that when a preexisting injury is aggravated by a later compensable injury, compensation is in order. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987). However, a claimant must prove that a compensable injury is the cause of any aggravation to a preexisting injury. Id.\nFor the reasons discussed, we remand for the Commission to make a new decision in keeping with this opinion.\nRemanded.\nMayfield and Cooper, JJ., agree.",
        "type": "majority",
        "author": "Beth Gladden Coulson, Judge."
      }
    ],
    "attorneys": [
      "Riffel, King and Smith, by: Kirby Riffel, for appellant.",
      "Friday, Eldredge & Clark, by: Elizabeth J. Robben, for appellee."
    ],
    "corrections": "",
    "head_matter": "Helen WADE v. MR. C. CAVENAUGH\u2019S, and Cigna Insurance Company\nCA 88-30\n756 S.W.2d 923\nCourt of Appeals of Arkansas Division II\nOpinion delivered September 14, 1988\nRiffel, King and Smith, by: Kirby Riffel, for appellant.\nFriday, Eldredge & Clark, by: Elizabeth J. Robben, for appellee."
  },
  "file_name": "0237-01",
  "first_page_order": 265,
  "last_page_order": 271
}