Hernandez v. Wal–mart Associates Inc.

• Decision Date: 01 July 2009
• Docket Number: No. CA 08–961.,CA 08–961.
• Citation: 337 S.W.3d 531,2009 Ark. App. 531
• Parties: Gladis HERNANDEZ, Appellant,v.WAL–MART ASSOCIATES, INC., Appellee.
• Court: Arkansas Court of Appeals

2009 Ark. App. 531

337 S.W.3d 531

Gladis HERNANDEZ, Appellant,

v.WAL–MART ASSOCIATES, INC., Appellee.

No. CA 08–961.

Court of Appeals of Arkansas.

July 1, 2009.

Sterling Law Firm, P.A., by: Brent Sterling, Fayetteville, for appellant.The Bassett Law Firm, by: Dale W. Brown, Fayetteville, for appellee.RITA GRUBER, Judge.

Gladis Hernandez appeals the denial of her workers' compensation claim for benefits related to her compensable back injury, which she sustained while working for appellee Wal–Mart and scanning heavy boxes of books on August 11, 2005. The Workers' Compensation Commission found that the compensable injury resolved no later than November 1, 2005. The Commission further found that Hernandez had not proven 1) entitlement to temporary total disability benefits from February 8, 2006, to an undetermined date; or 2) that medical treatment by orthopedic surgeon Dr. Cyril Raben, including tests and surgical procedures, was reasonable and necessary. Hernandez asserts that the Commission arbitrarily disregarded Dr. Raben's testimony in finding that she sustained only a lumbar strain rather than a herniated disc as a result of her compensable injury, and therefore also erred in denying [Ark. App. 2] additional medical benefits, temporary total disability benefits, and attorney's fees. She therefore contends that substantial evidence does not support the denial of additional medical benefits and temporary total disability. We disagree and affirm.

Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. White Consol. Indus. v. Galloway, 74 Ark.App. 13, 45 S.W.3d 396 (2001). Where the denial of a claim is based upon the claimant's failure to meet her burden of proving entitlement to benefits, the substantial-evidence standard of review requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000); Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark.App.1979). 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 arrived at by the Commission. Cedar Chem. Co. v. Knight, 99 Ark.App. 162, 258 S.W.3d 394 (2007).

It is within the Commission's province to reconcile conflicting evidence, including the medical evidence, and to determine the true facts. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). Although it is within the province of the Commission to weigh conflicting medical evidence, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. [Ark. App. 3] Roberts v. Whirlpool, 102 Ark.App. 284, 284 S.W.3d 100 (2008). But when the Commission chooses to accept the testimony of one physician over that of another, the appellate court is powerless to reverse the decision. See Ark. Wood Products v. Atchley, 21 Ark.App. 138, 729 S.W.2d 428 (1987) (rejecting an argument that the opinions of three orthopedic specialists should be given greater consideration than that of the family physician, and explaining that the matter involved the weight and probative force of the evidence rather than its substantiality).

Hernandez relies upon Dr. Raben's opinion that her compensable injury caused her lumbar disc herniation and associated treatment. This differed from the opinion of Dr. Gary Moffitt, Wal–Mart's company doctor and a general practitioner. Dr. Moffitt stated that Hernandez's complaints of left-side pain after her compensable injury did not correlate with an MRI performed on September 1, 2005, which disclosed a herniated disc at the same level on the right side. Dr. Moffitt opined that the herniation was unrelated to her compensable injury, which he diagnosed as a muscular strain. On January 13, 2006, Dr. Moffitt saw Hernandez and reported that her symptoms and complaints of pain were “consistent with an L5–S1 radiculopathy on the right.... She may continue to work without restrictions.”

In making its findings, the Commission found that Dr. Raben's opinion was entitled to minimal weight. The Commission noted that Dr. Konstantin V. Berestnev saw Hernandez on August 15, 2005, and assessed a lumbar strain, as had Dr. Moffitt. It pointed to a report by Dr. Moffitt that the injury had largely resolved by November 1, 2005. The Commission [Ark. App. 4] noted that orthopedic surgeon Dr. Robert Tomlinson did not “opine that the L5–S1 disc protrusion was the result of an accidental injury,” that neuro-surgeon Dr. Kelly Danks did not opine that the “degenerative bulging was the result of an acute injury,” and that Dr. Danks did not causally connect his recommendation for epidural injections to Hernandez's compensable injury. The Commission observed, “None of the claimant's treating physicians, other than Dr. Raben, opined that the claimant had sustained a herniated disc as a result of her lumbar strain.”

It was up to the Commission, as the finder of fact, to resolve conflicting medical opinions and evidence regarding the causation of Hernandez's disc herniation. The evidence, viewed in the light most favorable to the Commission's findings, is such that reasonable minds could have reached the conclusion of the Commission without resort to speculation or conjecture. See White Consol. Indus. v. Galloway, 74 Ark.App. 13, 45 S.W.3d 396 (2001). We hold that the Commission did not arbitrarily disregard Dr. Raben's opinion and that the Commission's decision, based upon Dr. Moffitt's opinion that Hernandez's injury did not result in her herniated disc, displays a substantial basis for the denial of relief. See Williams, supra.

Affirmed.

VAUGHT, C.J., and GLADWIN, J., agree.PITTMAN, J., concurs.ROBBINS and BAKER, JJ., dissent.JOHN MAUZY PITTMAN, Judge, concurring.

[Ark. App. 5] I write separately not merely to refute the opinions of the dissenting judges, but also to state my disappointment and frustration with the majority's refusal to enunciate a clear standard to be used in determining whether evidence presented to the Commission has been “arbitrarily disregarded.” The doctrine relating to arbitrary disregard of evidence began in Arkansas in the context of railroad cases, where juries engaged in speculation to find negligence in the face of uncontradicted eyewitness testimony by railroad employees describing the circumstances of the accident. The Arkansas Supreme Court held that juries were not permitted to grant verdicts for a plaintiff—the party with the burden of proof—in the face of uncontradicted eyewitness evidence to the contrary. See generally Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982).

That doctrine has been turned on its head in workers' compensation cases ¹ as it is [Ark. App. 6] frequently argued by attorneys, and we have sometimes held, that the Commission has “arbitrarily disregarded” contradicted evidence, reversing and remanding with directions to enter judgment in favor of the party with the burden of proof. See, e.g., Woodall v. Hunnicutt Construction, 67 Ark.App. 196, 994 S.W.2d 490 (1999), rev'd, 340 Ark. 377, 12 S.W.3d 630 (2000).² This is clearly wrong. This confusion is in large part attributable to the failure to define arbitrary disregard of evidence, and failure to reconcile this doctrine with the unassailable fact that our review is limited by statute to determining whether there is substantial evidence to support the Commission's findings.³

[Ark. App. 7] What must be shown to demonstrate that the Commission has arbitrarily disregarded evidence? In the context of appellate review of administrative decisions in general, our supreme court has held that, in order for an administrative action to be invalid as arbitrary, the action must either lack any rational basis or hinge on a finding of fact based on an erroneous view of the law. Pine Bluff for Safe Disposal v. Arkansas Pollution Control and Ecology Commission, 354 Ark. 563, 127 S.W.3d 509 (2003); Arkansas Professional Bail Bondsman Licensing Board v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). An arbitrary act is thus an illegal or unreasoned act; an act is not arbitrary simply because the reviewing court would have acted differently. Woodyard v. Arkansas Diversified Insurance Co., 268 Ark. 94, 594 S.W.2d 13 (1980). Proving that mere error has occurred is not sufficient to meet this test. Id.; Bryant v. Arkansas Public Service Commission, 55 Ark.App. 125, 931 S.W.2d 795 (1996).

The dissenting judges and, it appears, the majority, reject my assertion that the above-cited cases defining arbitrariness in administrative cases are applicable to our review of decisions of the Workers' Compensation Commission which, of course, is itself an administrative agency. This is regrettable; our refusal to expressly define what does and does not constitute arbitrary disregard of evidence leads to arguments, such as that made in the present case, that the Commission arbitrarily disregarded the medical opinion of one doctor because the opinion offered by a different doctor was entitled to much greater weight. This [Ark. App. 8] argument is frequently made on appeal and is utterly contrary to our standard of review, yet, for some inexplicable reason, the majority has refused to directly confront it in this case. Our inability to agree on the proper standard of review to be applied in such cases leads to the absurd result that we frequently reverse the Commission on the grounds that it has arbitrarily disregarded evidence by employment of a standard that is so vague as to itself be arbitrary.

The answer to the argument raised by appellant in this case is that we are unconcerned with the weight of the opposing testimony. We ignore it in our review. See Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 385, 389, 557 S.W.2d 868, 872, 874 (1977); Arkansas Wood Products v....