Pack v. Little Rock Convention Ctr.

• Decision Date: 02 May 2013
• Docket Number: No. 11–1287.,11–1287.
• Parties: David PACK, Appellant v. LITTLE ROCK CONVENTION CENTER & VISITORS BUREAU and Risk Management Resources, Appellees.
• Court: Arkansas Supreme Court

2013 Ark. 186
427 S.W.3d 586

David PACK, Appellant
v.
LITTLE ROCK CONVENTION CENTER & VISITORS BUREAU and Risk Management Resources, Appellees.

No. 11–1287.

Supreme Court of Arkansas.

May 2, 2013.

[427 S.W.3d 587]

Brazil, Adlong & Mickel, PLC, Conway, by Thomas W. Mickel, for appellant.

Coplin, Hardy & Stotts, PLLC, by Betty J. Hardy, Little Rock, and Charlotte A. Allen, for appellees.

KAREN R. BAKER, Justice.

On April 16, 1991, the thirty-one-year-old Appellant, David Pack, was employed as a maintenance worker by the Appellee, Little Rock Convention and Visitors Bureau (“the employer”), when he suffered a compensable work-related brain injury. The parties stipulated that Pack is permanently and totally disabled.

After his injury, Pack lived with his mother who served as his care giver.

[427 S.W.3d 588]

Pack filed a workers' compensation claim seeking benefits and also requested benefits for the nursing care services his mother was providing. The Arkansas Workers' Compensation Commission (“the Commission”) found that Pack's injury was compensable but denied the requested nursing services benefits. The court of appeals affirmed the Commission's determination in Pack I, finding that the injury was compensable and denied the additional benefits for nursing-services for Pack's mother as his mother “only assists him in his daily tasks and housekeeping, and does not provide any medical care to Pack.” Little Rock Convention & Visitors Bureau v. Pack (Pack I), 60 Ark.App. 82, 91, 959 S.W.2d 415, 420 (1997). At the time of Pack I, Pack was able to stay at home for periods of time by himself when his mother went to work. However, Pack was incapable of living alone and taking care of himself.

Pack continued to live with his mother until her death in 2003. Since her death, Pack has lived with his maternal aunt and uncle, Katherine and Clement Volpert, who are his legal guardians. In 2006, the Volperts made a second request for additional benefits for Pack in the form of nursing services at an assisted living facility, specifically, Timber Ridge Ranch Neurorestorative Center (“Timber Ridge”) in Benton, Arkansas, to receive long-term care. The Volperts' request was based on Pack's deterioration and their advancing age and inability to care for Pack. The employer opposed the additional benefits arguing that the benefits were not qualified nursing services under the law.

The case was submitted again to an Administrative Law Judge (“ALJ”) for a decision on Pack's entitlement to “nursing services.” On July 14, 2010, the ALJ found that Pack was entitled to nursing services and the services at Timber Ridge were “nursing services.” On January 13, 2011, the Commission reversed the ALJ's decision on the “nursing services,” and denied Pack benefits, finding that the services at Timber Ridge Ranch were not nursing services as defined by the law. Pack appealed the Commission's findings to the court of appeals which affirmed the Commission's findings in Pack v. Little Rock Convention & Visitors Bureau (“Pack II”), 2011 Ark. App. 755, 387 S.W.3d 260. On June 14, 2012, we accepted Pack's petition for review of the case. Upon granting a petition for review, this court considers the appeal as if it had been originally filed in this court. Smith v. Rebsamen Med. Ctr., Inc., 2012 Ark. 441, 424 S.W.3d 876.

For his sole point on appeal, Pack asserts that the Commission erred in finding that the services at Timber Ridge are not nursing services within Ark.Code Ann. § 11–9–508(a) (1987) and the Commission's decision is not supported by substantial evidence.

Our standard of review for workers' compensation claims is clear. 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. Hudak–Lee v. Baxter Cnty. Reg'l Hosp., 2011 Ark. 31, 378 S.W.3d 77. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Substantial evidence is “evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other.” Aluminum Co. of Am. v. McClendon, 259 Ark. 675, 687, 535 S.W.2d 832, 838 (1976). On review, the issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the

[427 S.W.3d 589]

Commission. Hudak–Lee, 2011 Ark. 31, 378 S.W.3d 77.

Additionally, 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). When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Id.

Finally, in reviewing Pack's appeal, we must apply the law that was in effect at the time of Pack's injury. Applying the law as in effect in 1991, Act 10 of 1986 requires the court to construe the Workers' Compensation Act liberally; “[a]dministrative law judges, the commission, and any reviewing courts shall construe the provisions of this chapter liberally, in accordance with the chapter's remedial purposes.” Act 10 of 1986 (2nd Ex. Sess.) (codified as amended at Ark.Code Ann. § 11–9–704(c)(3), (4) (1987) (formerly Ark. Stat. Ann. § 81–1323(c) (Supp.1985))).¹

With these standards identified, we now turn to the issue presented whether the services at Timber Ridge are nursing services under Ark.Code Ann. § 11–9–508 (1987) and whether there is substantial evidence to support the Commission's decision.

Section 11–9–508(a) provides in pertinent part: “[t]he employer shall promptly provide for an injured employee such medical ... and nursing services ... as may be reasonably necessary for the treatment of the injury received by the employee.” In other words, the employer is responsible for those nursing services that are reasonably necessary in connection with the sustained injury.

We have addressed the term nursing services under Ark.Code Ann. § 11–9–508, formerly Ark. Stat. § 81–1311, on several occasions. We have held that services contemplated under nursing services are those rendered in tending or ministering to another in sickness or infirmity. Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W.2d 138 (1977). In Dresser Minerals, we addressed the nursing services as provided by a spouse and rejected the claim that the claimant's wife care was merely custodial. We explained “[i]n the context of the compensation law, nursing services evidently embrace more than a wife's ordinary care for her sick husband.” Id. at 284, 556 S.W.2d at 140. We explained that “ ‘to nurse’ is: ‘[to] take care of or tend, as a sick person or an invalid.’ Webster's New International Dictionary (2d ed., 1934). Another definition is ‘to tend, or minister to, in sickness or infirmity.’ Random House Dictionary (unabridged ed., 1966).” Dresser Minerals, 262 Ark. at 283, 556 S.W.2d at 140. Applying this definition, we held that the claimant's wife administering intramuscular injections, enemas, hot baths, and leg and back rubs, were nursing services.

In Pickens–Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979), we also held that the claimant was entitled to...