Arbaugh v. AG Processing, Inc.

Wendell L. Griffen, Judge,

dissenting. The majority udge, that the evidence regarding the causal relationship between appellant’s problems and his on-the-job injury was conflicting, and, as such, it was for the Commission, as the trier of fact, to weigh the evidence and resolve any conflicting evidence. However, we reverse where the Commission’s order does not display a substantial basis for denial of relief. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). A substantial basis for denying relief exists if fair-minded persons could reach the same conclusion when considering the same facts. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Because I believe fair minded persons would not reach the Commission’s conclusions on the facts of this case, I would reverse and remand and instruct the Commission to enter an award of benefits for appellant’s organic-brain injury pursuant to Arkansas Code Annotated section 11 — 9— 102(4)(A)(I) (Supp. 2001).

Our workers’ compensation law does not preclude a finding that workers who have a pre-injury history of substance abuse and mental illness may suffer from a compensable injury. Nor does appellant’s preexisting history of mental illness and substance abuse raise the evidentiary bar for his claim. However, the Commission’s decision essentially reflects that prejudice. For example, despite citing Dr. Gary Souheaver’s neuropsychological opinion that an electrical injury can trigger depression and that he did not believe appellant’s problems were totally unrelated to the electrical shock of his compensable injury, the Commission found that appellant’s prior history of psychological and cognitive problems, drug and alcohol abuse, suicidal attempts, and prior closed-head injuries somehow prevented him from proving that the June 2, 2000 incident produced compensable injuries. I am unable to affirm the Commission’s disregard of competent medical proof of a compensable injury that is based upon such a prejudice.

The record fully demonstrates that appellant suffered an electrical shock at work on June 2, 2000. The record also documents that appellant had a pre-injury history of drug and alcohol abuse, mental health treatment, and depression. However, there is no evidence indicating that appellant had a pre-injury history for seizure-like symptoms of any kind, and certainly nothing similar to what the physicians who treated him after the June 2, 2000 incident recorded in their records. Moreover, there was no evidence that his prior symptoms affected his ability to work or were as pronounced as they were following the injury. Further, there was no evidence that appellant suffered from psychomotor retardation or had any difficulty in carrying on a normal conversation prior to his injury, but the testimony of appellant’s family and former coworkers supports that appellant’s personality, motor skills, and ability to think and respond all changed after the injury. In addition, appellant, his wife, and his mother testified that he experienced seizures after the injury and that he had never experienced seizures prior to the injury. Thus, the evidence demonstrates, that in addition to having similar symptoms, appellant also experienced new symptoms after the injury.

Even though the diagnostic tests generally produced no abnormal findings, three of appellant’s treating physicians indicated that the diagnostic tests used were not the best tests to detect a brain injury. It is inescapable that appellant received a 440-volt electrical shock to his system and that after that, he suffered from psychomotor retardation, poor concentration, and the inability to think clearly and carry on a conversation. Several doctors testified that appellant was unable to work; none of the doctors opined that appellant was able to return to work. In fact, it was estimated that his healing could take from eighteen months to three years. Clearly, as of the date he was injured, appellant was able to work and function normally. Appellee does not dispute that after the injury, appellant was not able to work and function normally. It seems a rather incredible coincidence that appellant’s cognitive problems only reemerged or became exacerbated after he received a 440-volt electrical shock to his system.

The causal connection between appellant’s injury and his need for treatment is further established by the testimony of appellant, his coworkers, his mother, and his wife. The Commission made no findings regarding the veracity of appellant or his wife, but the ALJ, and thus, the Commission, disregarded the testimony of appellant’s co-workers and mother for reasons that are contradicted by the record or seem arbitrary. While this court normally does not reexamine the ALJ’s findings, it is necessary to do so where the Commission makes no independent finding and instead, adopts the ALJ’s findings in full. Freeman v. Con-Agra, 344 Ark. 296, 40 S.W.3d 760 (2001). The ALJ stated that the coworkers were unable to explain the difference in appellant before and after the injury except that to testify that he was like a completely different person. This statement is simply untrue. John Hicks, one coworker, specifically testified that before the accident, appellant was happy and easy to get along with, but when appellant came back after the injury, he would not talk to anyone. John Wilson, the other coworker, specified the difference in appellant in greater detail. Wilson stated that, “there was a definite difference in Kent [appellant]. His motor skills weren’t the same. The way he walked, talked, speech, and carried things was slower. It took him a minute to figure out what people are saying to him.” In addition, Wilson testified that he saw appellant a few weeks before the hearing and that appellant still had problems thinking and talking. Thus, the stated reason for rejecting the testimony of Hicks and Wilson is contradicted by the record.

Further, the Commission’s discounting of the testimony of Ms. Arbaugh, appellant’s mother, seems arbitrary and counterintuitive. The ALJ determined that Ms. Arbaugh’s testimony should be “severely diminished” because Ms. Arbaugh was aware of appellant’s history of serious psychological and substance-abuse problems. This simply makes no sense because the only person who can credibly comment on the change in a claimant’s physical and emotional state is a person who knew the claimant prior to the injury. The fact that Ms. Arbaugh was not aware that appellant had concentration problems prior to his injury is consistent with her testimony that, prior to the injury, he could carry on a conversation without losing his train of thought. It would make more sense to discount Ms. Arbaugh’s testimony if she appeared to be lacking in veracity (which the ALJ did not find) or if she had no knowledge of appellant’s prior history (which was clearly not the case). Morever, neither the ALJ nor the Commission seemed to discount appellant’s or Mrs. Arbaugh’s testimony regarding the change in his physical and mental condition before and after the injury.

It is true that appellate courts normally defer to the Commission on issues involving the weight of the evidence and the credibility of witnesses. Freeman v. Con-Agra Frozen Foods, supra. However, while the Commission may be insulated to a certain degree, it is not so insulated as to render appellate review meaningless. We have held that the Commission may not arbitrarily disregard the testimony of any witness. Freeman v. Con-Agra Frozen Foods, supra. Where the uncontradicted testimony of even an interested witness is unaffected by any conflicting inferences to be drawn from it, and is not improbable, extraordinary or surprising in its nature or there is no other ground for hesitating to accept it as truth, there is no reason for denying the finding of verity dictated by such evidence. Maloy v. Stuttgart Mem’l Hosp. 316 Ark. 447, 872 S.W.2d 401 (1994); McLarty Leasing Sys., Inc. v. Blackshear, 11 Ark. App. 178, 668 S.W.2d 53 (1984). Here, the testimony regarding the change in appellant’s physical and emotional state is uncontradicted, is not improbable, extraordinary, or surprising, and there appears to be no reason to discount or disregard it.

For the above reasons, I would reverse the Commission’s order in this case. I am authorized to state that Judges Neal and Crabtree join in this opinion.