Evans v. Firestone Bldg. Prods., Ltd.

• Decision Date: 05 February 2020
• Docket Number: No. CV-19-562,CV-19-562
• Citation: 2020 Ark. App. 80,594 S.W.3d 139
• Parties: David EVANS, Appellant v. FIRESTONE BUILDING PRODUCTS, LTD., and Sedgwick Claims Management Services, Inc., Appellees
• Court: Arkansas Court of Appeals

2020 Ark. App. 80

594 S.W.3d 139

David EVANS, Appellant

v.FIRESTONE BUILDING PRODUCTS, LTD., and Sedgwick Claims Management Services, Inc., Appellees

No. CV-19-562

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: February 5, 2020

Moore, Giles & Matteson, L.L.P., by: Greg Giles, for appellant.

Barber Law Firm PLLC, Little Rock, by: Gail Ponder Gaines, for appellees.

MEREDITH B. SWITZER, Judge

This is a workers’ compensation case. David Evans filed a claim for workers’ compensation benefits following an injury he sustained on March 18, 2017. He was fifty-four years old and had worked for Firestone Building Products for approximately two years. Evans suffered a non-controverted, compensable injury to his left thumb. He also claimed that he injured his whole left hand and wrist and asserted entitlement to a 21 percent impairment rating to his body as a whole. Firestone contested the whole-hand/wrist and permanent-impairment claims. Following a hearing, the Administrative Law Judge (ALJ) denied his claim for additional benefits, concluding that he did not meet his burden of proving injury to the whole left hand or permanent physical impairment. Evans appealed to the Arkansas Workers’ Compensation Commission, which affirmed and adopted the ALJ’s opinion. As his sole point on appeal to this court, he contends the Commission’s decision is not supported by substantial evidence. We affirm.

When the Commission adopts the ALJ’s opinion, it makes the ALJ’s findings and conclusions its findings and conclusions. White v. Butterball, LLC , 2018 Ark. App. 7, 538 S.W.3d 240. We consider both the ALJ’s opinion and the Commission’s majority opinion. Id. When the Commission denies benefits because a claimant has failed to meet his or her burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Id. We view the evidence in the light most favorable to the Commission’s decision and affirm if it is supported by substantial evidence, which is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue on review is not whether the evidence would have supported a contrary finding or whether we might have reached a different result; we affirm if reasonable minds could reach the Commission’s conclusion. Id. We defer to the Commission on issues involving credibility and the weight of the evidence. Id.

Here, the work incident resulting in Evans’s claims occurred when he was trying to open a safety latch that was stuck on a twenty-foot container. The handle "shot out" and hit his left palm. Evans described the impact area as starting from his wrist area all the way up through the center of his palm and out through the webbing of his left hand. He said the force of the blow put him on his knees in pain. Although initial x-rays did not reveal a fracture, a subsequent MRI report listed the following impressions: 1) "Suspected small, nondisplaced acute fracture at the base of the proximal phalanx of the thumb at the ulnar collateral ligament insertion. UCL remains intact" and 2) "[c]ystic changes of the scaphoid bone likely reflecting sequela of prior injury or degenerative changes. No acute scaphoid fracture identified." As mentioned at the outset, Firestone treated the "thumb injury" as compensable. Evans was placed in a cast, received physical therapy, and was provided with light-duty work until he reached maximum medical improvement (MMI). However, Evans also claimed there was a broader area of injury to his entire left hand, which resulted in a 35 percent left-upper-extremity impairment, which converted to a 21 percent impairment to his body as a whole. Firestone controverted the whole-hand and permanent-impairment claims.

Evans was first seen at a local hospital. He then saw Dr. Thomas Fox, who was not only the "company doctor" but also his personal physician. Dr. Fox referred Evans to Dr. Harold Weems, a hand specialist who treated his thumb injury with a cast and physical therapy but also noted what he described as Evans’s exaggerated symptoms, e.g, "histrionic complaints of pain with every bit of motion in the thumb." He concluded Evans reached MMI on May 10, 2017, and released him to full work duty.

Evans then sought and was granted a change-of-physician request to Dr. Michelle Ritter, an orthopedic hand surgeon. Dr. Ritter ordered physical therapy, determined surgery would not be helpful, and concluded Evans reached MMI on April 12, 2018. She also referred Evans to Dr. Clinton McAlister for a permanent-impairment rating.

Dr. McAlister conducted an evaluation of Evans, which included a range-of-motion test. He assigned Evans a 35 percent left-upper-extremity impairment, which then converted to a 21 percent permanent-impairment rating to his body as a whole. From Evans’s description of Dr. McAlister’s range-of-motion examination, the ALJ determined it was an active, rather than passive, range-of-motion test. The ALJ’s conclusion is also supported by Dr. McAlister’s written report, which provided in part: "Unless otherwise specified, a minimum of three consecutive AROM measurements were obtained and the greatest measurement was used for comparison to AMA norms. Any AROM or strength measurements determined to be invalid due to inconsistent or poor effort on the part of the patient was noted by the examiner." (Emphasis added.)

Finally, although he did not personally examine Evans, Dr. Owen Kelly reviewed Evans’s x-rays, MRI, and other medical records and assigned him a zero percent permanent-impairment rating. Dr. Kelly opined:

I have reviewed the provided medical records in detail including treatment by Dr. Weems and Dr. Ritter. I also reviewed the Functional Capacity Evaluation, and the computation that it took to calculate the 35% impairment rating of the left upper extremity. It is in my opinion that the work injury of 3/18/17 would have given Mr. Evans a 0% impairment. He sustained a mild sprain and a non-displaced fracture. The findings the rating was based on are not related to this particular trauma. The motion restrictions were pre-existing and related to arthritic disease and not to an isolated injury to the hand on 3/18/17. There is thorough documentation of pre-existing disease.

In addition to medical evidence, the ALJ also heard testimony from Keith Williams, the health and safety manager at Firestone. He testified that his job includes case management and care of on-the-job injuries, that he attended several medical appointments with Evans, and that Evans told him on a visit to see Dr. Weems that he had once broken his left hand when he hit a guy in a bar fight. Evans denied having broken his left hand, stating instead that he had told Williams he broke his pinky finger on his right hand in a fight when he was eighteen or nineteen years old. Evans also acknowledged that he had a personality conflict with his physical therapist and that the physical therapist had...