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.

Multi-Craft Contractors, Inc. v. Yousey

Supreme Court of Arkansas

April 5, 2018

MULTI-CRAFT CONTRACTORS, INC., and GALLAGHER BASSETT SERVICES APPELLANTS/CROSS-APPELLEES
v.
RICK YOUSEY APPELLEE/CROSS-APPELLANT

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G201671]

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

          Cullen & Co., PLLC, by: Tim Cullen; and Jason M. Hatfield, P.A., 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 (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 11-9-102(4)(A)(i), is defined as "[a]n accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is 'accidental' only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]" Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16)(B). As the claimant, Yousey bears the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i).

         Brain Injury

         For its first point on appeal, Multi-Craft argues that the Commission erred in awarding benefits for Yousey's brain injury. Specifically, Multi-Craft argues that the Commission's decision finding that Yousey was entitled to a 29 percent impairment rating for his brain injury is not supported by substantial evidence. In response, Yousey argues that the Commission's decision regarding his brain injury is supported by substantial evidence and urges this court to affirm.

         As stated above, the Commission found that Yousey met his burden of proving that he was entitled to a 29 percent permanent impairment rating to the body as a whole for his brain injury. The Commission found that the 29 percent rating was supported by objective evidence through the extreme force applied to Yousey's head and therefore his brain; the presence of pneumocephalus; and the presence of the evidence of shearing on the MRI. The Commission also noted the subjective evidence found in Yousey's complaints, the neuropsychological testing, and the testimony and examinations of Dr. Back and Dr. Morse that establish symptoms consistent with a brain injury.

         The medical evidence supporting the Commission's findings regarding Yousey's compensable brain injury is summarized as follows. Dr. Richard Back, a clinical psychologist who has examined and treated Yousey, testified that he performed neuropsychological testing on Yousey. Dr. Back testified that Yousey had significantly impaired, or markedly impaired, memory function, and that his left hand was notably slow in both terms of fine- and gross-motor tasks. Dr. Back gave Yousey a diagnosis of dementia. Dr. Back explained that dementia means "a brain dysfunction from whatever source . . . the source is the head injury." Dr. Back evaluated Yousey two years after his injury to assess Yousey's permanent mental condition. Pursuant to Dr. Back's October 2, 2014 disability-rating evaluation, Dr. Back assessed Yousey's mental-status impairment at 14 percent and Yousey's emotional and behavioral impairments at 18 percent. After combining these two ratings, Dr. Back found that Yousey was entitled to a total 29 percent impairment rating for his brain injury.

         Dr. Back testified that the MRI report states that there "is an old lacunar infarct versus shear injury in the left internal capsule, so . . . that's really not normal." Dr. Back explained that "the reference of shear is more what relates to a[n] acceleration-deceleration injury which would . . . describe the type of ...


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.