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Arkansas Department of Human Services v. Shields

Court of Appeals of Arkansas, Division III

April 11, 2018

ARKANSAS DEPARTMENT OF HUMAN SERVICES and ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISION APPELLANTS
v.
CINDY SHIELDS APPELLEE/CROSS-APPELLANT and DEATH & PERMANENT TOTAL DISABILITY TRUST FUND APPELLEE/CROSS-APPELLEE

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G301010]

          Charles H. McLemore Jr., for appellants.

          McKinnnon Law Firm, by: David L. Schneider, for appellee Cindy R. Shields. David L. Pake and Christy King, for appellee Death & Permanent Total Disability Trust Fund.

          MIKE MURPHY, Judge

         On November 28, 2012, Cindy Shields sustained an injury to her right index finger and left knee while at work for the Arkansas Department of Human Services. She was 49 at the time. A hearing regarding the compensability for the injury to her knee was held on November 21, 2013. At that hearing, the administrative law judge (ALJ) found that Shields had proved by a preponderance of the evidence that her knee injury was compensable. That finding was appealed, and on June 19, 2014, that opinion was affirmed and adopted by the Arkansas Workers' Compensation Commission (Commission). After the ALJ rendered its opinion, but before the Commission adopted it, on December 31, 2013, Shields underwent a total-left-knee-replacement surgery.

         A second hearing was held in this case on April 21, 2016. At that hearing, the following issues were litigated: (1) whether Shields was entitled to a total-knee-replacement surgery; (2) whether Shields is entitled to permanent partial-disability benefits in the form of an impairment rating; (3) a determination of Shields's temporary total-disability and permanent partial-disability rates; and (4) whether Shields is entitled to temporary total-disability benefits from December 31, 2013, until August 5, 2015.

         Regarding the first issue, the employer argued that the knee-replacement surgery was not necessary for Shields's work-related injury, but instead for her "preexisting longstanding degenerative joint disease." In Shields's reply, she did not dispute that diagnostic testing of her left knee revealed preexisting degenerative changes. The ALJ found, however, that Shields gave credible testimony that her left knee was asymptomatic before her injury, and there were no medical records in evidence that demonstrated any difficulties or complaints regarding her knees before the accident. The ALJ then went on to find that Shields reached maximum medical improvement on August 5, 2015, was entitled to a 50 percent impairment rating to the lower left extremity, that the compensation rates for temporary total- and partial-disability benefits established in a prior order should remain the same, and that Shields was entitled to temporary total disability from December 31, 2013, until August 5, 2015.

          The appellants appealed this decision to the Commission, and appellee Death and Permanent Total Disability Trust Fund (Trust Fund) filed a cross-appeal regarding the disability rates. The Trust Fund also filed, at this juncture, motions to supplement and expand the record, which the Commission granted.[1] In its June 6, 2017 decision, the Commission entered a plurality opinion affirming the decision of the ALJ, [2] with the exception of the issue of the average weekly wage, which it changed to $416 for temporary total disability and $312 for permanent partial disability (down from $477 and $368, respectively). The appellants now appeal, alleging the Commission committed error in adopting the portions of the ALJ's opinion that it did. Shields cross-appeals, arguing the Commission erred in modifying her temporary-total and permanent-partial disability rates.

         I. Res Judicata

          The employer first argues that Shields's claims for total-knee-replacement surgery and corresponding disability benefits are barred by res judicata, because Shields did not present evidence or preserve the issue of surgery and the corresponding disability benefits, or reserve the issues thereof, at the November 21, 2013 hearing. However, despite having made this argument to the Commission, the Commission did not rule on this issue. In order to preserve an issue for appellate review in a workers'-compensation case, it is a party's responsibility to present the issue to the Commission and obtain a ruling. Because the employer failed to obtain any ruling on the argument, we hold that this issue has been waived and that the merits need not be addressed on appeal. See St. Edward Mercy Med. Ctr. v. Chrisman, 2012 Ark.App. 475, at 6-7, 422 S.W.3d 171, 175.

         II. Entitlement to Additional Medical Care and Benefits

         The employer argues alternatively that the total-knee-replacement surgery was not reasonable and necessary medical treatment for Shields's November 28, 2012 injury.

         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 the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission. Id. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Wilson v. Smurfit Stone Container, 2009 Ark.App. 800, 373 S.W.3d 347. 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.

         Under Arkansas workers'-compensation law, the employer takes the employee as she is found, and an aggravation of a preexisting, noncompensable condition by a compensable injury is, itself, compensable. Oliver v. Guardsmark, Inc., 68 Ark.App. 24, 3 S.W.3d 336 (1999). Furthermore, the Commission is authorized to accept or reject a medical opinion and is authorized to determine its ...


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