Moore v. Ark. State Highway & Transp. Dep't
2013 Ark. App. 752
Ark. Ct. App.2013Background
- Rhonda Moore injured her back in July 2005 while working for the Arkansas State Highway & Transportation Department; she underwent L4–5 fusion in March 2006 and was assigned a 12% permanent impairment in June 2007.
- Dr. Arthur Johnson opined in 2007 that Moore was permanently unable to work; the Public Employee Claims Division accepted her as permanently and totally disabled and paid benefits through March 2010.
- In 2010 surveillance and other evidence indicated Moore was engaging in activities at the Phoenix Drive‑In (owned by her ex‑husband); payments from the claims division ceased and the employer contested continued PTD benefits.
- At a 2012 hearing the record included medical records, a 2007 FCE, a 2007 vocational‑rehab report recommending GED/retraining, a 2012 FCE by a physical therapist placing her in the sedentary category, surveillance video of 2010 activities, and witness testimony with mixed accounts of Moore’s work activity.
- The administrative law judge awarded permanent and total disability; on appeal the Workers’ Compensation Commission reversed, finding Moore proved only 40% wage‑loss disability (not permanent total disability), assigning greater weight to the sedentary‑capacity opinions and to surveillance and vocational evidence.
- The Court of Appeals reviewed under the substantial‑evidence standard and affirmed the Commission’s reduction of benefits to a 40% wage‑loss award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moore proved permanent and total disability (inability to earn any meaningful wage) | Dr. Johnson and the Public Employee Claims Division found Moore permanently unable to work; she received PTD benefits and argues that medical opinion and prior administrative finding support PTD. | Employer argued evidence (surveillance, PT opinion, vocational report) showed Moore could perform at least sedentary work and thus could earn meaningful wages. | Commission and court held Moore did not meet burden for PTD; affirmed 40% wage‑loss award. |
| Proper weight to give conflicting medical opinions | Moore emphasized Dr. Johnson’s 2007 opinion that she could not work. | Employer emphasized physical therapist’s FCE and treating‑PT/vocational opinions indicating sedentary capacity. | Commission gave minimal weight to Dr. Johnson’s absolute restriction and greater weight to PT/vocational evidence supporting sedentary work. |
| Relevance of surveillance and post‑disability activities to earning capacity | Moore argued she was not on payroll, had no fixed schedule, and did not perform sustained work; contested reliability of adverse witness testimony. | Employer argued surveillance and witness testimony showed functional ability to work in a workplace setting by 2010. | Commission found surveillance credible and indicative that she could function in a workplace setting no later than 2010. |
| Need for retraining and claimant’s duty to pursue vocational rehabilitation | Moore argued she was never offered retraining and had limited education (11th grade). | Employer pointed to vocational report recommending GED/retraining and noted lack of evidence that Moore pursued retraining. | Commission found vocational report credible, noted absence of claimant initiative to obtain GED/retraining, and concluded retraining could enable sedentary employment. |
Key Cases Cited
- Cross v. Crawford Cnty. Mem’l Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (Ark. Ct. App.) (defines wage‑loss as effect of compensable injury on earning capacity)
- Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (Ark.) (substantial‑evidence standard when Commission denies benefits)
- Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (Ark. Ct. App.) (appellate review defers to Commission credibility and resolves conflicting evidence)