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.
and Brown, JJ., agree.
W. GRUBER, Chief Judge
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.
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
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.
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. Both sides timely appealed the
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.
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.
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.
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 ...