Multi-Craft Contractors, Inc. v. Yousey, CV–17–246

• Decision Date: 05 April 2018
• Docket Number: No. CV–17–246,CV–17–246
• Citation: 542 S.W.3d 155
• Parties: MULTI–CRAFT CONTRACTORS, INC., and Gallagher Bassett Services, Appellants/Cross–Appellees v. Rick YOUSEY, Appellee/Cross–Appellant
• Court: Arkansas Supreme Court

542 S.W.3d 155

MULTI–CRAFT CONTRACTORS, INC., and Gallagher Bassett Services, Appellants/Cross–Appellees

v.Rick YOUSEY, Appellee/Cross–Appellant

No. CV–17–246

Supreme Court of Arkansas.

Opinion Delivered: April 5, 2018

Rehearing Denied May 24, 2018

Bassett Law Firm, LLP, Fayetteville, by: Curtis L. Nebben, for appellants.

Cullen & Co., PLLC, by: Tim Cullen ; and Jason M. Hatfield, P.A., Springdale, by: Jason M. Hatfield, for appellee.

KAREN R. BAKER, Associate Justice

Appellants/cross-appellees Multi–Craft Contractors, Inc., and Gallagher Bassett Services (collectively "Multi–Craft") appeal the decision of the Arkansas Workers' Compensation Commission ("Commission") awarding benefits to employee appellee/cross-appellant, Rick Yousey. As pertinent to this appeal, the Commission found that Yousey was entitled to a permanent anatomical-impairment rating of 29 percent for his brain injury

and 24 percent for his left-eye injury, both to the body as a whole. The Commission further found that Yousey was not entitled to benefits based on a permanent anatomical-impairment rating based on pain. These injuries arose out of and in the course and scope of Yousey's employment with Multi–Craft. On appeal, Multi–Craft argues that the Commission's findings of permanent impairment ratings for Yousey's brain and left-eye injuries are not supported by substantial evidence and are in error as a matter of law. On cross-appeal, Yousey argues that the Commission's decision denying 100 percent total loss of use of his left eye is not supported by substantial evidence, and the Commission's decision denying 24 percent whole-body impairment rating for cranial nerve V and trigeminal nerve damage is not supported by substantial evidence. We affirm in part and affirm as modified in part on direct appeal and affirm in part and affirm as modified in part on cross-appeal.

On February 24, 2012, Yousey was severely injured during the course and scope of his employment with Multi–Craft. At the time of his injury, Yousey held his commercial driving license and was a tractor-trailer driver for Multi–Craft. On the day of Yousey's accident, Yousey was working with division manager Kevin McDonald. While Yousey was unloading equipment for Multi–Craft, he was seriously injured. Yousey suffered "innumerable facial fractures bilaterally," including his cheekbones, the maxillary and frontal sinus bones, bilateral fractures of the orbital walls, bilateral medial and lateral pterygoid plates, the nasal bone, and the mandible. Yousey also suffered a broken foot

, a broken hand, and a torn rotator cuff. Despite surgical repair, Yousey was left with a misalignment of his eyes due to his left-eye being sunken in and downwardly displaced. As a result of his left-eye injury, Yousey now suffers from double vision and is unable to pass the requisite physical, which prevents him from holding his commercial driving license. Yousey also takes daily prescription medication for his headaches. However, when Yousey's headaches become too painful, he gets injections in the back of his head. Yousey also has problems with his short-term memory, numbness in his left cheek, and a cold sensation that runs up his face when he consumes cold food or beverages. Further, Yousey has lost most of his sense of taste and smell and now speaks slower than he did before the accident. Finally, after the accident, Yousey "cried all the time afterwards" and now must take an antidepressant.

On April 20, 2015, a hearing was conducted before the administrative law judge ("ALJ"). On July 13, 2015, the ALJ issued its opinion finding that Yousey was not entitled to a 29 percent impairment rating to the body as a whole for his brain injury

; Yousey was not entitled to an assessment of 100 percent impairment to his vision system; Yousey was awarded $3,500 for his facial disfigurement pursuant to Arkansas Code Annotated section 11–9–524 (Repl. 2012) and an additional 15 percent impairment rating for his facial disfigurement; and awarded a 20 percent impairment rating for uncontrolled facial neuralgia pain.

On August 12, 2015, Multi–Craft filed its notice of appeal. As grounds for its appeal, Multi–Craft argued that the ALJ's award of a 15 percent impairment rating for facial disfigurement and an award of a 20 percent impairment rating for uncontrolled facial neuralgia

pain are contrary to the facts and law.

On August 13, 2015, Yousey filed his notice of cross-appeal. As grounds for his cross-appeal, Yousey argued that the ALJ erred as a matter of fact and law in concluding that he failed to prove that he was entitled to a 29 percent whole-body impairment rating resulting from his brain injury

and a 100 percent rating for the loss of vision in his left eye. Further, Yousey argued that the ALJ erred as a matter of fact and law in concluding that he attempted to prove that he sustained 100 percent impairment to his visual system. To the contrary, Yousey asked for an impairment rating for only his left eye, not his entire visual system.

On March 21, 2016, the Commission issued its opinion, affirming in part and reversing in part the ALJ's decision. The Commission found that Yousey was entitled to a permanent anatomical-impairment rating of 29 percent for his brain injury

and 24 percent for his left-eye injury, both to the body as a whole. The Commission further found that Yousey was entitled to benefits of $3,500 for facial disfigurement pursuant to Arkansas Code Annotated 11–9–524 but that Yousey was not entitled to benefits based on a permanent anatomical-impairment rating for facial disfigurement in excess of the cap imposed by the statute. The Commission also found that Yousey was not entitled to benefits based on a permanent anatomical-impairment rating based on pain.

On April 21, 2016, Multi–Craft filed its notice of appeal. As grounds for its appeal, Multi–Craft argued (1) that the Commission's determination that Yousey was entitled to a 29 percent permanent anatomical-impairment rating to the body as a whole for a brain injury

is not supported by substantial evidence and is in error as a matter of law; and (2) that the Commission's determination that Yousey was entitled to a 24 percent permanent anatomical-impairment rating to the body as a whole for loss of vision of the left eye is not supported by substantial evidence and is in error as a matter of law.

On April 27, 2016, Yousey filed his notice of cross-appeal. As grounds for his cross-appeal, Yousey argued (1) that the Commission's determination that he was not entitled to a 24 percent permanent-anatomical impairment rating to the body as a whole for permanent damage to the cranial and trigeminal nerves that resulted in uncontrolled facial neuralgia

pain is not supported by substantial evidence and is in error as a matter of law; and (2) that the Commission's determination that he was not entitled to a 15 percent permanent anatomical-impairment rating to the body as a whole for disorder of the structural integrity of the face is not supported by substantial evidence and is in error as a matter of law.

On March 8, 2017, in a decision that was initially unanimous, the court of appeals reversed in part and affirmed as modified in part the Commission's decision awarding Yousey benefits for brain and left-eye impairments. Multi–Craft Contractors, Inc. v. Yousey , 2017 Ark. App. 143. The court of appeals also affirmed in part and affirmed as modified in part Yousey's cross-appeal from the Commission's findings regarding his left-eye and facial-nerve injuries.

On March 27, 2017, Yousey filed a petition for rehearing in the court of appeals and a petition for review with this court, arguing that the court of appeals decision conflicts with the precedent of that court. On May 24, 2017, the court of appeals issued a substituted opinion denying the petition for rehearing. On June 1, 2017, we dismissed Yousey's petition for review as moot. On June 15, 2017, Yousey filed a renewed petition for review from the May 24, 2017 substituted opinion. On August 3, 2017, we granted Yousey's renewed petition for review and recalled the mandate from the court of appeals case. Accordingly, we consider the case as though it had been originally filed in this court. Curtis v. Lemna , 2014 Ark. 377, 2014 WL 4656613 (citing Fowler v. State , 339 Ark. 207, 5 S.W.3d 10 (1999) ).

It is well settled that the ALJ's findings are irrelevant for purposes of appeal, as this court is required by precedent to review only the findings of the Commission and ignore those of the ALJ. Johnson v. Bonds Fertilizer, Inc. , 375 Ark. 224, 289 S.W.3d 431 (2008) (citing Freeman v. Con–Agra Frozen Foods , 344 Ark. 296, 40 S.W.3d 760 (2001) ). In reviewing workers'-compensation claims, we view the evidence in the light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence. Crudup v. Regal Ware, Inc. , 341 Ark. 804, 20 S.W.3d 900 (2000). "Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts." Id. at 809, 20 S.W.3d at 903. The issue is not whether the appellate court might have reached a different result from the Commission, but rather whether reasonable minds could reach the result found by the Commission. Wallace v. W. Fraser South, Inc. , 365 Ark. 68, 225 S.W.3d 361 (2006). If so, the appellate court must affirm the Commission's decision. Id. Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Cedar Chem. Co. v. Knight , 372 Ark. 233, 273 S.W.3d 473 (2008) (citing Patterson v. Ark. Dep't of Health , 343 Ark. 255, 33 S.W.3d 151 (2000) ). Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony. Id. (citing Arbaugh v. AG Processing, Inc. , 360 Ark. 491, 202 S.W.3d 519 (2005) ).

A compensable injury, found in Arkansas Code Annotated section...