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Lybyer v. Springdale School District and Arkansas School Boards Association

Court of Appeals of Arkansas, Division IV

February 13, 2019

SHELA LYBYER APPELLANT
v.
SPRINGDALE SCHOOL DISTRICT AND ARKANSAS SCHOOL BOARDS ASSOCIATION APPELLEES

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G600823] AFFIRMED ON DIRECT APPEAL AND ON CROSS-APPEAL

          McKinnon Law Firm, by: David L. Schneider, for appellant.

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

          Hixson and Brown, JJ., agree.

          RITA W. GRUBER, Chief Judge

         Appellant Shela Lybyer appeals from a decision of the Arkansas Workers' Compensation Commission (Commission) denying her temporary total disability (TTD) benefits. Appellees, the Springdale School District and the Arkansas School Boards Association, cross-appeal from that part of the decision ordering them to provide appellant conservative treatment with a physician specializing in weight loss. We affirm.

         Appellant was working as a custodian at Har-Ber High School in Springdale when she sustained a compensable injury to her low back on June 22, 2015, while helping to move wrestling mats in the school gym. Her supervisor was notified, and he transported her to MedExpress. She was released to return to work on "very light duty" with initial restrictions that included lifting nothing that weighed more than ten pounds. Appellant returned to work; her light-duty job typically consisted of washing windows. On a visit the following week, appellant was referred to physical therapy. Medical records indicate that appellant saw various medical professionals at MedExpress and eventually saw a neurosurgeon, Dr. Charles Nalley, on September 28, 2015, who became her treating physician. He treated her conservatively, with steroid injections to her spine and continued physical therapy, but the treatments did not significantly improve her condition. Dr. Nalley recommended back surgery but refused to perform the surgery because of the risks associated with appellant's obesity and advised her to lose ninety pounds. The medical records also indicate that appellant was treated by Dr. Garland Thorn, Jr., during the time following her injury; she saw Dr. Thorn for weight issues and hypertension.

         In late 2015 while still working within her restrictions, appellant was "called in" by appellees to attend a meeting because they claimed that she left early without clocking out and took long breaks. Then on December 22, 2015, appellant attended a meeting with district supervisors at which she was accused of attempting to cover surveillance cameras in a hallway where she worked. She admitted having attempted to cover one camera with tape. Appellant signed a resignation letter on December 22, 2015.

         After her employment with appellees ended, appellant sought TTD benefits, which appellees denied. The prehearing order indicated that the issues to be tried included appellant's entitlement to medical benefits, specifically weight-loss-reduction surgery, and entitlement to TTD benefits from December 22, 2015, to a date yet to be determined. The hearing before the administrative law judge (ALJ) was held on October 10, 2017. The medical records were introduced into evidence, and appellant was the only witness. The ALJ entered an order denying appellant's request for TTD benefits because he determined that she made a choice to resign, which did not provide her benefits under the Workers' Compensation Act. The ALJ ordered appellees to provide "conservative treatment for the [appellant] with a physician specializing in weight loss and to pay for reasonable and necessary costs associated with that treatment, including making available physical activity such as gym or pool membership if that type of treatment is recommended by the [appellant's] chosen physician specializing in weight loss." Both sides appealed to the full Commission. In a unanimous decision, the Commission affirmed the decision of the ALJ and adopted the decision as its own.[1] Both sides timely appealed the Commission's decision.

         In reviewing decisions from the Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission's decision and affirm if it is supported by substantial evidence. Skinner v. Tango Transp., Inc., 2016 Ark.App. 304, at 8, 495 S.W.3d 637, 643. Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from the Commission. Id. Additionally, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of 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. 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. Id. Questions of law are reviewed de novo. Id.

         I. Direct Appeal

         On direct appeal, appellant raises two points: (1) whether the Commission erred as a matter of law in holding that appellant's choice of a voluntary resignation over a termination with a negative recommendation to future employers disqualified her from receiving TTD benefits during the remainder of her healing period and (2) whether the Commission erred in finding that appellant voluntarily resigned her employment with appellees. We will address the second point first.

         At the hearing before the ALJ, appellant testified that she had been written up for leaving early, taking long breaks, and not clocking out. She denied taking long breaks but explained that she had been sitting in the teacher's lounge because her back was hurting. She also stated that she left campus "like everyone else does. We went to the gas station. We wasn't gone for more than ten minutes and we came back with a glass of tea. Everybody does it." Appellant also admitted trying to cover a surveillance camera with tape. She testified on direct examination that she loved her job but was forced to sign the resignation, explaining that she would have continued to work there and did not want to quit. On cross-examination, she acknowledged that she resigned so that she would not get a bad evaluation. A copy of the resignation form, which she signed on December 22, 2015, was introduced into evidence. The ALJ noted that appellant did not provide the reason for leaving on her form, which was optional.

         The ALJ stated that if appellant had been terminated for cause, he "believed" she would have been entitled to TTD benefits; however, the ALJ found that she was not terminated for cause and had instead ...


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