Arkansas Highway & Transportation Department v. Dunlap

Cite as 2017 Ark. App. 637

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-375

ARKANSAS HIGHWAY & Opinion Delivered: November 29, 2017
TRANSPORTATION DEPARTMENT;
ARKANSAS INSURANCE APPEAL FROM THE ARKANSAS
DEPARTMENT, PUBLIC EMPLOYEE WORKERS’ COMPENSATION
CLAIMS DIVISION; AND DEATH & COMMISSION
PERMANENT TOTAL DISABILITY [NO. G207270]
TRUST FUND
APPELLANTS

V.
AFFIRMED
ROBERT LYNN DUNLAP
APPELLEE

RAYMOND R. ABRAMSON, Judge

Robert Dunlap, an employee of the Arkansas Highway & Transportation

Department, sustained a compensable injury when he was struck by a vehicle while

performing his job duties of filling potholes along an Arkansas highway near Lonoke on

August 14, 2012. The Arkansas Highway & Transportation Department, Arkansas Insurance

Department, Public Employee Claims Division, and Death & Permanent Total Disability

Trust Fund (collectively “the Highway Department”) appeal the Arkansas Workers’

Compensation Commission’s (“the Commission”) opinion and order that affirmed and

adopted the November 2, 2016 opinion of the administrative law judge (“ALJ”), which

awarded benefits to Dunlap. On appeal, the Highway Department argues that the
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Commission’s findings are not supported by substantial evidence and should be reversed.

We disagree and affirm.

At the September 13, 2016 hearing before the ALJ, Dunlap was 55 years old. He left

school in the eighth grade and never obtained his GED. When Dunlap was evaluated in

2016, his reading, writing, and mathematics skills were determined to be at kindergarten or

first-grade level. When he obtained a commercial driver’s license in the 1970s, he was

grandfathered in and never had to take a written test. He has worked in various truck-

driving positions the majority of his adult life.

In 2010, Dunlap began driving for the Highway Department and shortly thereafter

became a backhoe operator. He also performed other duties at the Highway Department,

but he has not worked since he was struck by a passing vehicle in August 2012. Since

Dunlap’s compensable injury, he has undergone multiple orthopedic surgeries performed

by different surgeons related to radius and ulna fractures and elbow abnormalities in his right

elbow. He has also had post injury symptoms at times, diagnosed as anxiety, depression, and

posttraumatic stress disorder (PTSD). Dunlap’s orthopedic surgeons have included Dr. Reed

Kilgore in 2012 and 2013, Dr. Michael Moore in 2013, 2014, and 2015, and Dr. Michael

Hussey in 2015 and 2016. His family physician is Dr. Jeff Carfagno. Dunlap has been

diagnosed for his mental-health issues by Dr. Erick Messias and staff at UAMS in 2013 and

by Dr. Robert Doyle also in 2013.

At the hearing before the ALJ on September 13, 2016, the parties litigated the

compensability of Dunlap’s mental health as a result of the compensable physical injury and

entitlement to mental-health treatment in the form of medication prescribed by Dr.

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Carfagno, entitlement to an additional 19 percent rating to the right upper extremity for a

total rating of 100 percent, or in the alternative, entitlement to permanent and total disability

from the first maximum medical improvement date of January 21, 2013, and attorney’s fees.

Both Dunlap and his wife testified at the hearing. The record also includes extensive medical

records and other documents, as well as surveillance reports and a video, and the transcript

of the deposition of Heather Taylor, a vocational-rehabilitation counselor.

In a November 2, 2016 opinion, the ALJ found that Dunlap established by a

preponderance of the evidence that (1) he had sustained compensable mental injuries

including PTSD and depressive disorder; (2) Dr. Carfagno’s medications for Dunlap’s

diagnosed mental injuries had at all times been, and currently remain, reasonably necessary

medical treatment for his compensable mental injuries; and (3) Dunlap had established by a

preponderance of the evidence that he is entitled to benefits for permanent total disability

beginning January 21, 2013. On de novo review, the Commission, in a unanimous decision,

affirmed and adopted the decision of the ALJ as its own.

The Highway Department asserts two points on appeal. First, it argues that the

Commission’s findings that Dunlap established compensable mental injuries and is entitled

to medications prescribed by his family doctor as reasonably necessary medical treatment for

his diagnosed compensable mental injuries are not supported by substantial evidence. The

Highway Department also contends that the Commission’s findings that Dunlap established

that he is entitled to benefits for permanent total disability beginning January 21, 2013, is

not supported by substantial evidence and, moreover, that the Commission has arbitrarily

disregarded evidence and testimony in the record in making this finding.

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Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI,

Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes

the ALJ’s findings and conclusions the findings and conclusions of the

Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion

and the Commission’s opinion in tandem. Hawley v. First Sec. Bancorp, 2011 Ark. App. 538,

385 S.W.3d 388.

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 we might have reached a

different result from the Commission but whether reasonable minds could reach the result

found by the Commission. Id. Additionally, the credibility of witnesses and the weight to

be given to their testimony are within the exclusive province of the Commission. Id. Thus,

we are precluded from determining the credibility and weight to be accorded to each

witness’s testimony, and we defer to the Commission’s authority to disregard the testimony

of any witness, even a claimant, as not credible. Wilson v. Smurfit Stone Container, 2009 Ark.

App. 800, 373 S.W.3d 347. 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. Prock, supra.

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The Highway Department’s first point on appeal is that substantial evidence does not

support the Commission’s findings that Dunlap established compensable mental injuries and

that he is entitled to medications prescribed by his family doctor as reasonably necessary

medical treatment for his diagnosed compensable mental injuries. In the November 2, 2016

opinion, the ALJ specifically found that

Dunlap has established by a preponderance of the evidence that his mental injuries
have been diagnosed by both a licensed psychiatrist and a licensed psychologist, that
their diagnoses meet the required criteria of the fourth edition of the Diagnostic and
Statistical Manual of Mental Disorders, and that Dunlap’s mental injuries were caused
by his physical injury to the right upper extremity.

The ALJ also found that the Highway Department remained liable for medications

prescribed for PTSD, anxiety, depression, and related symptoms. The record in this case

supports the Commission’s decision. Multiple doctors agree with Dunlap’s claims. Dr.

Carfagno diagnosed Dunlap with “depressive disorder” on September 20, 2012, noting “he

is emotionally labile and short-tempered and tearfull [sic].” Dr. Carfagno prescribed Dunlap

medication for his depression and recommended he see a therapist. Dr. Kilgore, one of

Dunlap’s orthopedic surgeons, noted on October 15, 2012, that he was suffering from

difficulty sleeping and was agitated. Dr. Kilgore prescribed Xanax for Dunlap.

Dunlap was seen at the UAMS Psychiatric Research Institute in January 2013 where

he was diagnosed with depressive disorder. Dunlap was also seen by a licensed social worker

who noted that he suffered from “anxiety, depression, explosive anger, fatigue/low energy,

impaired concentration, inattention, irritability, memory, mood swings, self-esteem, sleep

disturbance, stress and worry.” The provider also noted no prior history of psychiatric illness.

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On January 25, 2013, Dunlap was diagnosed with PTSD by Dr. Dorothee S.

Mecum, a resident physician who reported to Dr. Erick Messias. Dr. Mecum’s report stated

that the onset date was August 2012, when Dunlap “who was in relative good health, from

both a psychiatric and medical perspective, until August 2012, when he was struck by a big

rig and lost the use of his right arm . . . his current symptoms are consistent with post-

traumatic stress disorder.” Dunlap continued to be treated at the UAMS Walker Clinic

through March 2013.

On April 3, 2013, Dunlap was seen by Dr. Robert Doyle, PhD, who diagnosed him

with PTSD and mood disorders (depression and anxiety) and recommended that he

“continue on the prescribed psychotropic medications by either Dr. Messias or his family

doctor.” Dunlap stopped seeing Dr. Doyle after the doctor advised him to park on the side

of the interstate and get out of his vehicle in order to overcome his fears. Dunlap testified

that he still has problems riding in a car on the interstate and continues to have a fear of

getting hit.

Dunlap continued his treatment with Dr. Carfagno, who stated in a report on August

16, 2016, “[H]e has not been doing well with his stress disorder. He is having an especially

hard time driving on busy roads. Currently all of his non bp [blood pressure] meds are

related to effects of his workman’s compensation related injury and disability. He had no

type of mental or physical disability prior to his accident in 8/2012.”

We hold that the Commission’s opinion that Dunlap suffered compensable mental

injuries and that the continued treatment of these injuries is reasonable and necessary is

supported by substantial evidence. In the instant case, Dunlap’s medical records note a

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depressed mood immediately following his compensable injury on August 12, 2012. The

Commission noted that Dunlap was treated and diagnosed by mental-health professionals

from January through May of 2013, before the fifth edition of the Diagnostic and Statistical

Manual of Mental Disorders (DSM) was published in June 2013. The fourth edition was

the proper DSM to evaluate his claim under the worker’-compensation act, as it was current

with the treatment, not current with the litigation. At the hearing, the Highway Department

agreed with the Commission that the DSM-4 was the proper edition to use. On the record

before us, there is substantial evidence to show that Dunlap suffered from a depressive

disorder resulting from his injury. As noted above, a substantial basis 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). Here, fair-minded persons could most

certainly reach the same conclusion as the Commission; therefore, we affirm.

The Highway Department’s second argument on appeal is that the Commission’s

findings that Dunlap established that he is entitled to benefits for permanent total disability

beginning January 21, 2013, are not supported by substantial evidence. Specifically, it argues

that the Commission has arbitrarily disregarded evidence and testimony in the record in

making this finding. We do not find this argument persuasive.

The Commission found that “the claimant has established by a preponderance of the

evidence that he is entitled to benefits for permanent total disability beginning on January

21, 2013.” We hold that this finding is supported by substantial evidence. Dunlap’s

entitlement to permanent total-disability benefits is controlled by Arkansas Code Annotated

section 11-9-519(c) (Repl. 2012) which states, “[I]n all other cases, permanent total

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disability shall be determined in accordance with the facts.” Furthermore, “the burden of

proof shall be on the employee to prove inability to earn any meaningful wage in the same or

other employment.” Ark. Code Ann. § 11-9-519(e)(2).

In this case, the medical opinions show that Dunlap is either completely

disabled or, at the very least, has no use of his right arm. Heather Taylor, the only vocational

expert to evaluate Dunlap, testified that she conducted job-market research, and she was

not able to identify any current openings that fit Dunlap’s physical and academic limitations

and his lack of transferrable skills. Taylor also testified that she contacted the Highway

Department and asked if there was any possibility of Dunlap’s returning to work. However,

in 2016, she was told that Dunlap had “previously resigned his employment.” Taylor stated

that she was not aware of any effort to return Dunlap to work at the Highway Department,

and no evidence was introduced to show documentary evidence of a resignation. The ALJ

accorded “greater weight to Mr. Dunlap’s testimony that he never heard from the

Department than the statement that someone at the Highway Department made to Ms.

Taylor that Mr. Dunlap resigned.”

This court reverses the Commission’s decision only if we are convinced that fair-

minded persons could not have reached the same conclusion with the same facts before

them. See Pafford Med. Billing Servs., Inc. v. Smith, 2011 Ark. App. 180, 381 S.W.3d 921.

We are also foreclosed from determining the credibility and weight to be accorded each

witness’s testimony as it is in the Commission’s exclusive province, and we defer to the

Commission accordingly. Wilson, supra. Viewing the evidence in the light most favorable

to the Commission’s decision, we hold that substantial evidence supports its decision that

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Dunlap is entitled to benefits for permanent total disability beginning on January 21, 2013.

Therefore, we affirm.

Affirmed.

MURPHY and BROWN, JJ., agree.

Charles H. McLemore Jr., for appellant Public Employee Claims Division.

Steven McNeely Attorney at Law, by: Steven R. McNeely, for appellee.

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