Pack v. Little Rock Convention & Visitors Bureau

• Decision Date: 07 December 2011
• Docket Number: No. CA 11–314.,CA 11–314.
• Citation: 387 S.W.3d 260,2011 Ark. App. 755
• Parties: David PACK, Appellant v. LITTLE ROCK CONVENTION & VISITORS BUREAU and Risk Management Resources, Appellees.
• Court: Arkansas Court of Appeals

2011 Ark. App. 755

387 S.W.3d 260

David PACK, Appellant

v.LITTLE ROCK CONVENTION & VISITORS BUREAU and Risk Management Resources, Appellees.

No. CA 11–314.

Court of Appeals of Arkansas.

Dec. 7, 2011.

Thomas W. Mickel, Conway, for appellant.

Betty J. Hardy, Little Rock, for appellee.

DAVID M. GLOVER, Judge.

[Ark. App. 1]Appellant David Pack suffered an idiopathic injury while working for appellee Little Rock Convention and Visitors Bureau on April 16, 1991, resulting in an award of benefits. Little Rock Convention & Visitors Bureau v. Pack, 60 Ark.App. 82, 959 S.W.2d 415 (1997)( Pack I ). His case now returns on appeal from the Commission's finding that his employer and its insurance carrier, Risk Management Resources, are not liable for long-term-care expenses at Timber Ridge Ranch ( Pack II ). On the facts presented, the ALJ determined that the services provided at Timber Ridge qualified as nursing services for which appellees were responsible, but the Commission reversed the ALJ, finding that Pack had failed to prove that residential placement at Timber Ridge qualified as compensable nursing care; Pack now appeals this decision. We affirm the Commission's decision that Pack failed to prove that residential placement at Timber Ridge qualified as compensable nursing care.

[Ark. App. 2]In Nabholz Construction Corp. v. Gates, 2010 Ark.App. 182, at 1, 2010 WL 653563, this court set forth our standard of review in workers' compensation cases:

In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Whitlatch v. Southland Land & Dev., 84 Ark.App. 399, 141 S.W.3d 916 (2004). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. K II Constr. Co. v. Crabtree, 78 Ark.App. 222, 79 S.W.3d 414 (2004) [ (2002) ]. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Geo. Specialty Chem., Inc. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000).

Arkansas Code Annotated section 11–9–508(a) (Supp.2009) requires an employer to provide an injured employee such medical services “as may be reasonably necessary in connection with the injury received by the employee.” The employee has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). What constitutes reasonable and necessary medical treatment is a question of fact to be determined by the Commission. Bohannon v. Wal–Mart [ Walmart ] Stores, Inc., 102 Ark.App. 37, 279 S.W.3d 502 (2008).

Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Cedar Chemical 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 to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief; this court is foreclosed from determining the credibility and weight to be accorded to each witness's testimony. Id.[Ark. App. 3]The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002).

As a result of the 1991 injury, Pack suffered an organic brain injury and is permanently and totally disabled. In Pack I, this court affirmed the Commission's finding of a compensable injury on direct appeal and also affirmed the finding on cross-appeal that Pack's mother, with whom Pack lived on a full-time basis, was not entitled to payment for nursing services. Pack's mother testified that she had to give Pack “verbal cues” to perform tasks such as bathing, dressing, and other personal care because Pack was not likely to do those things without prompting; however, she was able to leave Pack at home unattended while she worked until midday.

Pack lived with his mother until her death in 2003; he then moved in with his mother's sister, Katherine, now sixty-five, and her husband, Clem Volpert, now sixty-eight, who are his legal co-guardians. Katherine Volpert testified that she and her husband had put off attempting to find a long-term care facility, but that they now would like to get their nephew into long-term care soon because Katherine's health was not good and she did not want to leave him “out in the field like his mother did.” For this reason, she stated that she and her husband sought an alternative placement for Pack in long-term care at Timber Ridge.

Mrs. Volpert testified that nothing had changed with her nephew's condition since he had come to live with her and her husband in February 2003, except that his personal [Ark. App. 4]appearance had improved and he no longer smoked. She confirmed that Pack could care for his basic hygiene, but that he had to be reminded verbally to perform such tasks, including bathing, combing his hair, using the toilet, and brushing his teeth. She also stated that he could make his bed and dress himself if she told him what to do. She said that he did not prepare any meals, and that she and her husband did not leave him alone.¹

Dr. Gary Souheaver, a clinical neuropsychologist, testified that Pack was going to require constant verbal and visual reminders to function in routine activities. He stated that, while Pack's IQ had diminished fifteen points since his accident in 1991, Pack was clearly not “nursing-home material,” that he did not need twenty-four-hour care, and that he was able to stay by himself for short periods of time. It was Dr. Souheaver's opinion that Pack would benefit from the most independent setting consistent with his abilities—possibly a group-home setting where he would have someone to help with grooming, bathing, laundry, housekeeping, meal preparation, shopping, health needs, and transportation—and he also believed that Pack was capable of working in a structured, sheltered-workshop setting.

Robbie McDaniel, the administrator at Timber Ridge, a post-acute brain-injury-rehabilitation and residential-care facility, stated that the facility offered supported-living services to match its clients' functional capabilities. The goal at Timber Ridge, according [Ark. App. 5]to McDaniel, is to provide the highest quality of life capable to the individual, to provide meaningful activities on a daily basis, to provide professional services in nursing or medical care with monitoring on an ongoing basis, and to try to prevent functional regression over a period of time. McDaniel testified that nursing services were available twenty-four hours a day, seven days a week. According to McDaniel, the daily rate for Pack would be $600 per day, which included room and board, any of the therapies, counseling, supervision needs, transportation, behavioral observation, and, if needed, behavioral intervention. This per diem rate did not include medication or outside medical consultation. However, even after repeated questioning, McDaniel was unable or unwilling to break down the $600 per diem from a comprehensive rate to its individual components.

Pack contends that Timber Ridge's services qualify as nursing services and as such, should be compensable under Pine Bluff Parks & Recreation v. Porter, 6 Ark.App. 154, 639 S.W.2d 363 (1982). We disagree. In Porter, the Commission found that it was reasonable and necessary for appellee Lorenzo Porter to be maintained in a residential facility for paraplegics, and that the employer was responsible for paying a portion of the rent for Porter's apartment in that facility. This court remanded to the Commission, finding that while it was reasonably necessary for Porter to be housed at the facility designed for paraplegics, the Commission had to determine the portion of costs attributable to nursing services and medical apparatuses (the facility had special accommodations for paraplegics, such as ramps, lower light switches and counters, wider doorways for wheelchairs, [Ark. App. 6]specially designed bathrooms, and intercom systems), and services that were not covered, such as custodial care, lodging, and other nonmedical services such as housekeeping.

Porter's case is different because, as a paraplegic, there were certain medical services that he had to have. However, in Pack's case, the services he needs are not nursing services. As noted in Pack I,

The supreme court has said that the services contemplated under “nursing services” are those rendered in tending or ministering to another in sickness or infirmity. Pickens–Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979). Nursing services do not include assistance with household and personal tasks which the claimant is unable to perform. Pine Bluff Parks & Recreation v. Porter, 6 Ark.App. 154, 639 S.W.2d 363 (1982); Pickens–Bond Constr. Co., supra. Benefits for nursing services have been allowed where the services consisted of medical care, including changing bandages and cleaning a wound, ( Tibbs v. Dixie Bearings, Inc., 9 Ark.App. 150, 654 S.W.2d 588 (1983)), giving injections, enemas, and hot baths, ( Dresser Minerals v. Hunt, 266 [262] Ark. 323 [280], 584 [556] S.W.2d 21 [138] (1979)), physical therapy, ( Wasson v. Losey, 11 Ark.App. 302, 669 S.W.2d 516 (1984)), and where the claimant was mentally and physically helpless with no control over bodily functions and needed twenty-four hour per day...