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ARKANSAS COURT OF APPEALS DIVISION III No. CV-13-532

RHONDA MOORE Opinion Delivered December 18, 2013 APPELLANT APPEAL FROM THE ARKANSAS V. WORKERS’ COMPENSATION COMMISSION [NO. F507938] ARKANSAS STATE HIGHWAY & TRANSPORTATION DEPARTMENT, DEATH & PERMANENT DISABILITY TRUST FUND, and PUBLIC AFFIRMED EMPLOYEE CLAIMS COMMISSION APPELLEES

RITA W. GRUBER, Judge

Rhonda Moore appeals the February 2013 decision of the Arkansas Workers’

Compensation Commission denying her claim for permanent and total disability related to

her compensable back injury. She contends that substantial evidence does not support the

Commission’s determination. We affirm.

Permanent total disability is defined by statute as the inability, because of compensable

injury or occupational disease, to earn any meaningful wages in the same or other

employment.

(e)(1) (Repl. 2012). The employee bears the

burden of proving the inability to earn any meaningful wage.

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519(e)(2) (Repl. 2012). In considering claims for permanent partial-disability benefits in

excess of the percentage of permanent physical impairment, the Commission may take into

account such factors as the employee’s age, education, work experience, and other matters Cite as

reasonably expected to affect his or her future earning capacity.

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522(b)(1) (Repl. 2012). The wage-loss factor is the extent to which a compensable injury has

affected the claimant’s ability to earn a livelihood. Cross v. Crawford Cnty. Mem’l Hosp.,

,

(1996).

Where the Commission denies benefits because the claimant has failed to meet her

burden of proof, the substantial-evidence standard of review requires that we affirm if the

Commission’s decision displays a substantial basis for the denial of relief. Frances v. Gaylord

Container Corp.,

,

(2000). We view the evidence in the light

most favorable to the Commission’s decision, which will be affirmed when it is supported by

substantial evidence. Parker v. Comcast Cable Corp.,

,

(2007). 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; if so, the appellate court must affirm.

We defer to the Commission’s

findings of credibility and the resolution of conflicting evidence. Welcher v. Davis Nursing

Home,

.

Ms. Moore, who had an eleventh-grade education, worked as a service attendant at

the Arkansas State Highway and Transportation Department. In July 2005, she injured her

back while moving a large barrel of oil. In March 2006, she underwent a lumbar inter-body

fusion at L4-5 by neurosurgeon Dr. Arthur M. Johnson. In June 2007, Dr. Johnson assigned

her a permanent-impairment disability rating of 12% to the body as a whole under the

appropriate guidelines of the American Medical Association.

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The Arkansas Public Employee Claims Division accepted Ms. Moore as permanently

totally disabled as of May 25, 2007, the date on which Dr. Johnson listed her work status as

“off permanently” and wrote that she was “unable to work.” He also wrote, based upon a

May 4, 2007 functional capacity evaluation, that she had a limited ability to perform any types

of activities:

Usually sitting, standing, and walking she can tolerate these for approximately ten to thirty minutes at a time and she can at a maximum lift ten pounds. The functional capacity evaluation indicates severe impairment in terms of work capabilities and therefore it is not recommended that she return to work. She is given a prescription for Darvocet-N 100 p.r.n. for pain and she is discharged from the neurosurgery clinic.

Ms. Moore received permanent and total-disability benefits until March 2010, when the

claims division notified her that it would cease payments because of her activities at Phoenix

Drive-In.

At a June 2012 hearing before an administrative law judge, the Arkansas State Highway

and Transportation Department contended that Ms. Moore was not permanently and totally

disabled based on evidence—after the date of her permanent-and-total declaration—“showing

that she was working and capable of earning wages.” Exhibits at the hearing included Ms.

Moore’s medical records; the report of her functional-capacity exam (FCE) by physical

therapist James Honey; a vocation-rehabilitation evaluation performed by Heather Taylor on

July 13, 2007; a surveillance-video CD of her April 2010 activities at the Phoenix Drive-In,

which was owned by her ex-husband, Timothy Moore; and deposition testimony by past and

present employees of the Phoenix. Live testimony was given by Ms. Moore and her ex-

husband, Timothy Moore, and by Desmond Tappon, the private investigator who took the

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video.

Ms. Moore testified that the highway department did not offer her another job and that

she “got tired of looking at the four walls.” She did not deny going to the Phoenix after Dr.

Johnson released her from care. She stated that she could not sit or stand for long periods;

that she had trouble sleeping because of pain, for which she took over-the-counter

medications; that she had no schedule at the Phoenix, where she did such errands as drive to

Sam’s Club; and that she was never on the payroll. Timothy Moore testified that she did not

engage in work activities, but “just hung out,” and sometimes “kind of helped out” her friend

Renee—fixing a drink or two, wiping down counters, or driving Renee to Sam’s. The

employees’ testimony varied about the extent of Ms. Moore’s activities. The private

investigator testified that he saw no indication of her having any physical trouble but that he

had no knowledge of her medical condition or restrictions.

The vocational-rehabilitation evaluation by Heather Taylor noted the physical

therapist’s statement that placed Ms. Moore in the “sedentary physical demand category” for

a sedentary occupation with “opportunity to sit, stand and walk as needed . . . where she is

not required to sit for six hours a day but does have the ability to alternate positions frequently

as needed.” Ms. Taylor’s report concluded with three recommendations. First was pain-

management evaluation for possible alternatives to medications Ms. Moore was taking.

Second and third concerned a GED and retraining:

I would recommend that she enroll in the adult education program as soon as possible to begin working toward obtaining her GED. Obtaining her GED will allow her to enter into a formal training program, if desired, and could enhance her employability options for the future. . . .

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If she is able to obtain her GED, I would recommend that she complete some type of short-term training program so that she can gain some sedentary work skills.

The law judge found that Ms. Moore had proved entitlement to permanent and total-

disability benefits. The Commission reversed, finding that she did not prove that she was

unable to earn any meaningful wage in the same or other employment. The Commission

awarded wage-loss disability benefits of 40%.

The Commission framed the relevant question not as whether Ms. Moore was an

employee of the Phoenix Drive-In, but the extent to which her 2005 compensable injury

affected her ability to earn a livelihood. It assigned minimal weight to Dr. Johnson’s 2007

opinion that Ms. Moore was physically precluded from ever returning to appropriate gainful

employment, instead giving greater weight to the physical therapist’s opinion that she could

perform at least sedentary work, and it found credible the vocational-rehabilitation report that

she could return to at least a sedentary occupation, albeit with job retraining. It noted that

the record lacked evidence of an offer of retraining but also did not show that Ms. Moore

—who failed to obtain a GED or other education—“took any initiative to pursue job

retraining or vocational rehabilitation to enhance her prospects for appropriate gainful

employment.” It found that surveillance evidence demonstrated she was physically able to

function in a workplace setting no later than 2010.

Reasoning as follows, the Commission concluded that Ms. Moore did not prove she

was permanently and totally disabled in accordance with

(e)

(Repl. 2002):

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The claimant is only 44 years old, but she has not yet completed school beyond the 11th grade. The claimant has sustained a 12% permanent anatomical impairment as a result of her compensable injury and she has permanent restrictions in lifting, sitting, and standing. The evidence shows that the claimant is able to perform employment duties within her physical restrictions on at least a part-time basis. The claimant is not physically able to return to a manual labor position such as she previously held with the respondent-employer. The claimant’s testimony indicated that she was taking over-the-counter medications for her chronic pain. The evidence in the present matter does not show that a reliance on prescription narcotic medication is a hindrance to appropriate gainful employment for the claimant.

The Commission also concluded that the 2005 compensable injury was the major cause of

Ms. Moore’s 12% anatomical impairment and 40% wage-loss disability.

Arguing for reversal, Ms. Moore points to both Dr. Johnson’s opinion that she was

permanently unable to return to work and the Public Employee Claims Division’s

determination that she was totally and permanently disabled. She notes that she was never

offered retraining or schooling, that her physical therapist opined she could not return to

sedentary work requiring her to sit six to eight hours a day, and that there was no evidence

of her earning wages at the Phoenix. She suggests that “disgruntled employees” had reason

not to testify in her favor.

This case turned on the Commission’s evaluation of the weight and credibility of

evidence regarding the primary issue, Ms. Moore’s ability to earn meaningful wages. We are

unable to say that reasonable minds could not come to the Commission’s decision to reduce

the law judge’s finding of permanent total disability to 40% wage-loss disability. The

Commission’s findings constitute a substantial basis on which to deny her claim.

Affirmed.

HARRISON and WOOD, JJ., agree. Walker, Shock & Harp, PLLC, by: Eddie H. Walker, Jr., for appellant. Robert H. Montgomery, Public Employee Claims Division, Arkansas Insurance Department, for appellees.

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