Hot Springs Convention Center v. Timothy Phelps

Cite as 2021 Ark. App. 83
Elizabeth Perry
I attest to the accuracy and
ARKANSAS COURT OF APPEALS
integrity of this document DIVISION III
No. CV-20-487
2023.06.22 13:59:29 -05'00'
2023.001.20174
OPINION DELIVERED: FEBRUARY 24, 2021
HOT SPRINGS CONVENTION
CENTER
APPELLANT APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G606805]
TIMOTHY PHELPS
APPELLEE
AFFIRMED

ROBERT J. GLADWIN, Judge

The Hot Springs Convention Center (HSCC) appeals the unanimous June 25, 2020

opinion of the Arkansas Workers’ Compensation Commission (Commission), which found

that Timothy Phelps was entitled to a 10 percent wage-loss disability benefit in excess of his

7 percent impairment rating. 1 The sole argument on appeal is that the Commission’s wage-

loss disability benefit was not supported by substantial evidence. We affirm.

Phelps began working for the Hot Springs Advertising & Promotion Commission

(HSAPC), as a painter in 2007. He held that position for between four and five years before

moving to the maintenance department. Phelps’s job duties in the maintenance department

1
The Commission affirmed the administrative law judge’s (ALJ’s) finding that Phelps
had failed to prove that he was entitled to permanent total-disability benefits; but that finding
is not the subject of this appeal.
involved completing repairs in the building, running the computers to turn on the air

handlers and boilers, and opening up and locking the building.

Phelps had worked for the HSCC for approximately nine years when he sustained

compensable injuries on September 14, 2016. Phelps was working on bleachers that retract

back into the walls of the arena, but three of the seats were stuck and would not properly

retract. He attempted to manually release the seats, and when he did, the seats released and

threw Phelps backwards, causing him to fall eight to ten feet to the concrete floor. Phelps

landed on his left side, injuring his left shoulder, wrist, back, hip, and head.

The HSCC accepted his injuries as compensable and sent Phelps to the CHI St.

Vincent emergency room. There, a CT scan revealed a compression fracture at L2 in his

lower back. Following that visit, Phelps was sent to Dr. Mark Larey, who referred Phelps

to both an orthopedic physician and a neurosurgeon for his back and shoulder.

Dr. Victor Vargas, the orthopedic doctor, ordered an MRI on Phelps’s shoulder,

which revealed a rotator-cuff tear. Dr. Vargas then referred Phelps to Dr. Michael Hussey

for surgery to repair the rotator cuff, which was performed on October 26, 2016. Dr. Hussey

ultimately released Phelps to return to work without restrictions and assigned a 0 percent

impairment rating to the left shoulder on March 22, 2017. Phelps continues to have limited

mobility in his left shoulder, and he cannot perform any lifting work over his head on the

left side or any repetitive motion with his left arm. He is unable to lift more than five pounds

with his left arm and is unable able to paint because it would require him to lift his arm over

his shoulder. Phelps rates his daily shoulder pain as seven on a scale of one to ten.

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Dr. Vargas also referred Phelps to Dr. Justin Seale for treatment of his back injury.

Dr. Seale confirmed that Phelps had suffered an L2 compression fracture and a moderate to

severe disc-space collapse at L5-S1. Phelps treated with Dr. Seale until he reached maximum

medical improvement on December 12, 2016. Dr. Seale returned Phelps to work without

any restrictions for his back but did assign Phelps a 7 percent impairment rating.

Phelps has had continuous back pain since his fall. He has been unable to do several

ordinary job functions including walking up or down stairs, lifting, and other physically

demanding duties. Dr. Seale recommended that Phelps have epidural steroid injections, but

he has not wanted to lose his physical ability by having surgery or injections. Phelps has

endured pain in his back that he rates as ten on a scale of one to ten since the September

14, 2016 incident.

Following his release from Drs. Hussey and Seale, Phelps returned to work with the

HSCC without restrictions as a maintenance technician on March 27, 2017. He was able to

perform most of his job functions, including work that was done on the computer and duties

that did not involve lifting. However, Phelps did require accommodations for the more

physical aspects of the job, and whenever lifting was involved, the HSCC had to have

another employee perform the task. Phelps continued to work there for more than two

months before he was terminated on June 5, 2017 for the listed reason of failure to pass the

boiler exam. Phelps had initially taken the boiler exam four years prior and failed, but the

HSCC allowed him to continue working. Phelps claims that he was unaware that passing

the boiler exam was a condition of continued employment, and it was only after his

compensable injuries that his failing exam score became a basis for termination.

3
A hearing was held before the ALJ on August 30, 2019, regarding whether Phelps

was permanently and totally disabled or, in the alternative, was owed wage-loss disability

benefits. On November 15, the ALJ issued an opinion stating that Phelps was not

permanently totally disabled and was not owed wage-loss disability benefits over his

impairment rating. Phelps appealed the ALJ’s decision to the Full Commission. The

Commission, in a unanimous opinion entered on June 25, 2020, agreed with the ALJ’s

finding that Phelps was not permanently and totally disabled but awarded a wage-loss

disability benefit in the amount of 10 percent in excess of his 7 percent impairment rating.

The HSCC filed a timely notice of appeal on July 14.

This court views the evidence and all reasonable inferences in the light most favorable

to the Commission’s findings and affirms if they are supported by substantial evidence.

Craighead Cnty. v. Tipton, 2020 Ark. App. 416, at 5. Substantial evidence is that which a

reasonable mind might find as adequate to support a conclusion. Id. The question is not

whether the evidence would have supported findings contrary to the ones made by the

Commission; rather, it is whether there is substantial evidence to support the Commission’s

decision even though we might have reached a different conclusion if we sat as the trier of

fact. Id. Credibility questions and the weight to be given to witness testimony are within

the Commission’s exclusive province. Id. It is also within the Commission’s province to

weigh all the medical evidence and to determine what is most credible. Id. at 6. We have

long held that the Commission’s decision to accept or reject medical opinions and how it

resolves conflicting medical evidence has the force and effect of a jury verdict. Id.

4
The HSCC’s sole argument is that substantial evidence does not support the

Commission’s finding that Phelps was entitled to a 10 percent wage-loss disability benefit

over his 7 percent body-to-the-whole impairment rating. Pursuant to Arkansas Code

Annotated section 11-9-522(b)(1) (Repl. 2012), when a claimant has an impairment rating

to the body as a whole, the Commission has the authority to increase the disability rating

on the basis of wage-loss factors. Tempworks Mgmt. Servs., Inc. v. Jaynes, 2020 Ark. App. 70,

at 5, 593 S.W.3d 519, 523. The wage-loss factor is the extent to which a compensable injury

has affected the claimant’s ability to earn a livelihood. Id. at 6, 593 S.W.3d at 523. The

Commission must determine disability after a consideration of medical evidence and other

factors affecting wage loss, such as the claimant’s age, education, and work experience. Id.,

593 S.W.3d at 523. Motivation, postinjury income, credibility, demeanor, and a multitude

of other factors are matters to be considered in claims for wage-loss disability benefits in

excess of permanent-physical impairment. Id.

In this instant case, the Commission considered Phelps’s advanced age, his limited

education, and his prior work history of physically demanding employment and related

skills. It also considered Phelps’s inability to perform the same types of work he had done

in the past because of physical limitations related to his back injury in arriving at its

determination that his future earning capacity has been affected by his compensable injuries.

In its decision, the Commission cited Milton v. K-Tops Plastic Mfg. Co., 2012 Ark. App. 175,

392 S.W.3d 364, and subsequently concluded that Phelps was entitled to 10 percent wage-

loss disability benefits. The Commission’s findings are based on the appropriate wage-loss

factors, and its opinion adequately discusses the rationale that underlies that finding.

5
The HSCC is requesting that we reweigh the evidence and credibility findings made

by the Commission; however, we will not do so as it is the Commission’s duty to make

credibility determinations and to weigh the evidence. Considering the fact-intensive nature

of this inquiry in which the specific facts of this claimant’s age, abilities, education, and

physical limitations, motivation, demeanor, and any other factors deemed relevant are to be

considered, we hold that reasonable minds could conclude that Phelps was entitled to 10

percent wage-loss disability benefits. Because the Commission’s decision is supported by

substantial evidence, we affirm.

Affirmed.

VAUGHT and HIXSON, JJ., agree.

Mary Edwards, for appellant.

Rainwater, Holt & Sexton, P.A., by: Kolton Jones, for appellee.

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