Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Arkansas Highway & Transportation Department v. Dunlap

Court of Appeals of Arkansas, Division II

November 29, 2017

ARKANSAS HIGHWAY & TRANSPORTATION DEPARTMENT; ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISION; AND DEATH & PERMANENT TOTAL DISABILITY TRUST FUND APPELLANTS
v.
ROBERT LYNN DUNLAP APPELLEE

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G207270]

          Charles H. McLemore Jr., for appellant Public Employee Claims Division.

          Steven McNeely Attorney at Law, by: Steven R. McNeely, for appellee.

          RAYMOND R. ABRAMSON, JUDGE.

         Robert Dunlap, an employee of the Arkansas Highway & Transportation Department, sustained a compensable injury when he was struck by a vehicle while performing his job duties of filling potholes along an Arkansas highway near Lonoke on August 14, 2012. The Arkansas Highway & Transportation Department, Arkansas Insurance Department, Public Employee Claims Division, and Death & Permanent Total Disability Trust Fund (collectively "the Highway Department") appeal the Arkansas Workers' Compensation Commission's ("the Commission") opinion and order that affirmed and adopted the November 2, 2016 opinion of the administrative law judge ("ALJ"), which awarded benefits to Dunlap. On appeal, the Highway Department argues that the Commission's findings are not supported by substantial evidence and should be reversed. We disagree and affirm.

         At the September 13, 2016 hearing before the ALJ, Dunlap was 55 years old. He left school in the eighth grade and never obtained his GED. When Dunlap was evaluated in 2016, his reading, writing, and mathematics skills were determined to be at kindergarten or first-grade level. When he obtained a commercial driver's license in the 1970s, he was grandfathered in and never had to take a written test. He has worked in various truck-driving positions the majority of his adult life.

         In 2010, Dunlap began driving for the Highway Department and shortly thereafter became a backhoe operator. He also performed other duties at the Highway Department, but he has not worked since he was struck by a passing vehicle in August 2012. Since Dunlap's compensable injury, he has undergone multiple orthopedic surgeries performed by different surgeons related to radius and ulna fractures and elbow abnormalities in his right elbow. He has also had post injury symptoms at times, diagnosed as anxiety, depression, and posttraumatic stress disorder (PTSD). Dunlap's orthopedic surgeons have included Dr. Reed Kilgore in 2012 and 2013, Dr. Michael Moore in 2013, 2014, and 2015, and Dr. Michael Hussey in 2015 and 2016. His family physician is Dr. Jeff Carfagno. Dunlap has been diagnosed for his mental-health issues by Dr. Erick Messias and staff at UAMS in 2013 and by Dr. Robert Doyle also in 2013.

         At the hearing before the ALJ on September 13, 2016, the parties litigated the compensability of Dunlap's mental health as a result of the compensable physical injury and entitlement to mental-health treatment in the form of medication prescribed by Dr. Carfagno, entitlement to an additional 19 percent rating to the right upper extremity for a total rating of 100 percent, or in the alternative, entitlement to permanent and total disability from the first maximum medical improvement date of January 21, 2013, and attorney's fees. Both Dunlap and his wife testified at the hearing. The record also includes extensive medical records and other documents, as well as surveillance reports and a video, and the transcript of the deposition of Heather Taylor, a vocational-rehabilitation counselor.

         In a November 2, 2016 opinion, the ALJ found that Dunlap established by a preponderance of the evidence that (1) he had sustained compensable mental injuries including PTSD and depressive disorder; (2) Dr. Carfagno's medications for Dunlap's diagnosed mental injuries had at all times been, and currently remain, reasonably necessary medical treatment for his compensable mental injuries; and (3) Dunlap had established by a preponderance of the evidence that he is entitled to benefits for permanent total disability beginning January 21, 2013. On de novo review, the Commission, in a unanimous decision, affirmed and adopted the decision of the ALJ as its own.

         The Highway Department asserts two points on appeal. First, it argues that the Commission's findings that Dunlap established compensable mental injuries and is entitled to medications prescribed by his family doctor as reasonably necessary medical treatment for his diagnosed compensable mental injuries are not supported by substantial evidence. The Highway Department also contends that the Commission's findings that Dunlap established that he is entitled to benefits for permanent total disability beginning January 21, 2013, is not supported by substantial evidence and, moreover, that the Commission has arbitrarily disregarded evidence and testimony in the record in making this finding.

         Under Arkansas law, the Commission is permitted to adopt the ALJ's opinion. SSI, Inc. v. Cates, 2009 Ark.App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ's opinion and the Commission's opinion in tandem. Hawley v. First Sec. Bancorp, 2011 Ark.App. 538, 385 S.W.3d 388.

         In appeals involving claims for workers' compensation, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission. Id. Additionally, the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Id. Thus, we are precluded from determining the credibility and weight to be accorded to each witness's testimony, and we defer to the Commission's authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson v. Smurfit Stone Container, 2009 Ark.App. 800, 373 S.W.3d 347. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Id. Finally, this court will reverse the Commission's decision only if it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Prock, supra.

         The Highway Department's first point on appeal is that substantial evidence does not support the Commission's findings that Dunlap established compensable mental injuries and that he is entitled to medications prescribed by his family doctor as reasonably necessary medical treatment for his diagnosed compensable mental injuries. In the November 2, 2016 opinion, the ALJ specifically found that

Dunlap has established by a preponderance of the evidence that his mental injuries have been diagnosed by both a licensed psychiatrist and a licensed psychologist, that their diagnoses meet the required criteria of the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders, and that Dunlap's ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.