ARKANSAS HIGHWAY & TRANSPORTATION DEPARTMENT; ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISION; AND DEATH & PERMANENT TOTAL DISABILITY TRUST FUND APPELLANTS
ROBERT LYNN DUNLAP APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Charles H. McLemore Jr., for appellant Public Employee Claims
McNeely Attorney at Law, by: Steven R. McNeely, for appellee.
RAYMOND R. ABRAMSON, JUDGE.
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.
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
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.
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
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.
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
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
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.
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 ...