*1 LOGGING HOOTEN DELBERT I. RIPPE Marvin Co. Insurance Interstate and American 266 S.W.3d CA 06-1277 of Arkansas October delivered Opinion S. for Frederick appellant. Spencer, E.
Michael Ryhurn, appellees. a decision
Karen R. Judge. Appellant appeals Baker, finding ALJ brain that he had an elements to establish organic the decision affirmed ALJ. First, Commission’s several argues arguments appeal. of the evidence that he failed to establish by preponderance finding to establish a the elements necessary Second, he evidence. argues Executive Branch of
evidence submitted establishes *2 have of Arkansas and interests exerted State private pressure workers’ administrative law and Commissioners judges that has decision and resulted in infringed upon independence actual bias and the the admin- bias in decisions of appearance law istrative and Commissioners. Within his second judges point, has two His first an admin- is that sub-argument sub-points. that istrative does to quasi-judicial safeguards procedure provide the decisional violates the officers independence hearing protect doctrine established the Constitution of the separation-of-powers State Arkansas. His is that second sub-argument pressure exerted interests by political private upon quasi-judicial administrative makers violates the rights due-process before and invalidates and renders void parties appearing agency holdWe that the Commission adjudicative procedure agency. found that elements to properly an and we further hold that case, in have no merit. arguments, presented we affirm. Accordingly,
On March was at Hooten working when he sustained a laceration and elbow Logging scalp truck, occurred when tree fell from logging striking him and to On that knocking ground. particular day, boss was machine that “reaches out running grabs to it truck.” on the When his boss him the put log gave signal, he was to a chain trim use saw to the brush off the expected logs. he in that was the “safe zone” when explained Appellant standing his boss him the and at that he gave reached expected signal, point knew, over to the chain saw. next pick “The I I was up thing dirt out of mouth.” did not that spitting remember my Appellant he had fallen to but he described the of a severe ground, feeling headache and the that his arm been off feeling “ripped [his] When he he fell to the body.” attempted get up, ground again. His boss directed him into the truck he so that get pick-up take to the doctor. stated that it difficult was Appellant to the truck “the because world he had get spinning” over, blood all over His his body. scalp “split open flipped like had been it “felt like was on fire.” Because scalped” [he] arrived, the doctor’s office closed when his took him boss they at room Health Medical Center Heber emergency Baptist Springs. since the he where he forgets and has to have He going help remembering any appointments. and has trouble when to be around people wants longer people arm, and left He has in his all at once around him. pain are talking When trouble with his vision.
it all the time.” He also has “hurts head, there.” He vision’s it is like trying turns his “my He also has move around.” read because the “letters struggles communi- read. His what he ability trouble remembering just and he has trouble communi- cate since the has lessened where what he is his He often doing thoughts. forgets cating he has trouble with testified that losing is going. Appellant of these issues balance. He stated he did not the injury. , Dr.
He testified he saw Blickenstaff orthopedic *3 doctor, released of Dr. Blickenstaff for treatment his elbow injury. that he not have 2004 and did appellant reported June his also saw an to elbow relating injury. Appellant disability noted did not doctor whose that (unnamed) eye report appellant that not sustain “floaters” and did any any apparent appellant for “ocular doctor injuries.” eye glasses appellant, prescribed me.” but testified that wouldn’t them for “they appellant Smith, Dr. the CT Scan of also saw and neurologist, Appellant head was normal. appellant’s 6, 2004, also Dr.
On seen Vann August appellant Smith, a evaluation of perceived cognitive neuropsychologist, difficulties. Dr. Vann noted at the his that of beginning report “resulted in a Grade III concussion with atten- appellant’s confusion, affective dant and disorientation and spatial temporal Dr. ran tests on and concluded Vann various lability.” appellant data a number of that test revealed abnormal findings appellant’s brain function. Dr. Vann consistent with of presence impaired Brain with Dysfunction, Secondary Organic diagnosed appellant to TBI; Dysfunction, Non-Psychotic, Secondary Cognitive OBS; III and Brain to Axis Organic Secondary Dysfunction Dr. Vann recommended referral Condition(s). following: and for additional evaluation and neurocog- neurology physiatry rehabilitation treatment nitive cognitive planning; outpatient indicated; retraining/rehabilitation clinically repeat neuropsy- test in six months to establish a data baseline battery chological re- from which to assess the velocity/severity any accurately treatment; and maining neurocognitive symptoms efficacy and that contact and become involved with Traumatic patient Brain Brain the Arkansas Injury support groups sponsored Association in his area. Injury
Several of friends and former testified co-workers appellant’s at the Robert Powell testified that hearing. prior accident, had worked for him for three After the years. appellant to work for Powell injury, again. appellant attempted Powell described how had since appellant’s personality changed that, the accident and accident, unlike appellant’s personality prior defensive become and Before the
appellant “sharp.” was able to “do and he would complex things Now, me out. he can’t figure do that.” “He help can’t remember things any and cannot focus on anything, plans.” Lane Richard also testified that after appellant’s injury, had short-term was unable understand memory problems what he He to do at time. testified supposed that given since the like he felt had no depressed became He described purpose. easily aggravated. appel- lant as unable much having difficulty concentrating perform He stated his condition had physical activity. consis- gotten worse since the tently co-workers, Rouse, Another of Doug lived with Rouse his fol- family immediately time,
lowing during appellant complained arm, neck, head, with back and problems massive aches. body He described accident as a hard very working, with, very outgoing, easy get along friendly Since person. accident, Rouse testified that *4 had suffered from appellant able to was not memory problems work. perform physical “is not the same since the accident. He was person” and did not do well depressed in a crowd. unhappy Verdusco also testified that a she saw noticeable Jean Jenna difference in after the she appellant injury. Specifically, that his that he often memory remember failing, her. told He lost his A things from to Z on ability a “go stated that can She taken project.” but something apart, “[h]e it can’t back She also the get put fact together.” recognized and that was “off’ he lost his balance appellant’s equilibrium often. She that after the moved explained away other and had isolated himself from his friends. She testified people that she nowas thought appellant longer employable. After all the and evidence at the hear- testimony presented the concluded that
ing, challenge ALJ merit without and that failed establish his
231
by
medical evidence supported
brain injury by
alleged
the
findings,
affirmed
The Commission
findings.
objective
and
ALJ’s
the
decision.
Commission’s
the
from Workers’ Compensation
decisions
In reviewing
Commission,
and all
inferences
the
reasonable
we view
evidence
the
most favorable
Commis-
therefrom in
deducible
light
is
substan-
if
decision
decision and affirm that
sion’s
430,
Smith,
143
84 Ark.
v.
Ft.
App.
tial evidence. Smith City of
is
that a reason-
evidence
evidence
Substantial
(2004).
S.W.3d
a conclusion.
as
mind
able
might accept
adequate
support
510,
(1999).
988 S.W.2d
v.
Williams
Temps.,
Prostaff
a
have reached
not whether the
court
issue is
reviewing
might
Commission;
the
if reasonable minds could
different result from
Commission,
be
its decision must
reach the result found
the
94,
Baker,
v.
Minnesota
&
affirmed.
Mining Mfg.
the
of the
we
review
(1999).
only
findings
Normally,
McDonald,
those
v.
and not
of the
County
Commission
Logan
ALJ.
the
206 S.W.3d
when
(2005).
App.
the
it is
the conclusions of
authorized
ALJ,
adopts
do,
the
we consider both
the Commission and
&
v.
decision of
Branum,
Death PermanentTotal
Trust Fund
Disability
ALJ.
to establish a evidence by preponderance a brain was not establish organic compensable injury the evidence. A must be estab- injury compensable lished medical evidence Ark. supported by objective findings. Code Ann. ll-9-102(4)(D) 2007); (Supp. Single § Crawford Co., 216, Source & Cas. Ins. Transp. Fidelity App. S.W.3d 507 are those which Objective findings findings cannot come under the control of the voluntary patient, Crawford, are existence extent of supra, only necessary Stores, 443, an Wal-Mart Inc. v. Van Wagner, S.W.2d 522 (1999). us,
In case before relies on Dr. Vann primarily Smith’s brain diagnosis organic which based on 2004. He neuropsychological testing relies on his own also performed August of his numerous as well testimony symptoms, of his friends that he suffered testimony long-time numerous mental and since he was in cognitive problems injured more, 2004. without is not neuropsychological testing, to establish brain adequate organic injury by “objective findings” within the of Ark. Code Ann. meaning See ll-9-102(4)(D). § Watson v. Ark. Tayco, S.W.3d 18 (2002) that the results of (holding neuropsychological testing standing alone is not to establish a enough but see compensable injury); Master, Wentz v. Service that, (where we found in addition the neuropsychological there was other testing, evidence of a brain objective which included medical that of the besides testimony neuropsychologist that attributed the to her work-related appellant’s injury accident). Such come under the clearly control symptoms voluntary therefore, definition, do not by statutory consti- tute SeeArk. Code Ann. objective findings. 11-9-102(16)(A)(i) § 2007). (Supp.
Here, evidence only suggesting sustained closed-head was found in the compensable injury results of the neuropsychological testing own There was no other testimony regarding symptoms. objective The results of establishing injury.1 alone neuropsychological testing estab- standing enough recognize While we attempting objectively dilemma which objective condition for test is available, nevertheless Code Ann. currendy (D) 11-9-102(4) be established § medical evidence requires sup objective findings. We see no dilemma to be addressed other than ported by way legislative action. *6 the Commission’s affirm therefore we lish a injury; elements necessary the failed finding that he had an makes on For second argument appeal, that the evidence He contends constitutional several arguments. the Branch of State Executive submitted establishes workers’ have exerted of and interests pressure Arkansas private law and Commissioners administrative judges and re infringed independence which upon in the of bias decisions in actual bias and the sulted appearance He further the administrative law Commissioners. judges that does contends that administrative quasi-judicial procedure the decisional safeguards protect independence provide doctrine estab officers violates the separation-of-powers hearing of Arkansas and lished the Constitution State the interests exerted by political private upon pressure administrative the due- decision makers violates quasi-judicial agency process rights parties appearing invalidates renders void adjudicative agency. procedure However, identical this court rejected arguments previously Inc., Stores, v. Wal-Mart S.W.3d Long and in v. Forsgren, Murphy As in we find merit S.W.3d Long Murphy, Thus, we affirm the Com arguments. decision. mission’s
Robbins, J., concurs.
Glover, J., agrees.
John B.
Our court
concurring.
sought
Robbins,
Judge,
this
Court because of
certify
per-
appeal
Supreme
in the decisions of the Court of
ceived
inconsistency
the claimant.
of the constitutional issues raised
Certifica-
because
an order of
was from
tion was
notwithstanding
appeal
attempted
and such
Workers’
appeals
Compensation
was so
been decided
the Court of
This
initially by
historically
Appeals.
as a
or
if the
second
subsequent
even
appeal
appeal
postured
Court. SeeHouston Contract-
case
decided
Supreme
previously
895 (1980)
Co. v.
(holding
ing
Young,
rule
from
second or
subsequent appeal
inapplicable
Commission).
year
Workers’ Compensation
past
two
Commis
Supreme
accepted
appeals directly
Rhine,
sion. Nucor
Corp.
(2006);
*7
Fertilizer,
Bonds
Timothy HESTER v. STATE of Arkansas CA CR 07-250
Court of of Arkansas delivered November Opinion