Kymira Gant v. First Step, Inc., and Risk Management Resources

Cite as 2023 Ark. App. 393
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-570

KYMIRA GANT Opinion Delivered September 20, 2023
APPELLANT
APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION
[NO. H002516]
FIRST STEP, INC., AND RISK
MANAGEMENT RESOURCES
APPELLEES AFFIRMED

STEPHANIE POTTER BARRETT, Judge

Appellant Kymira Gant appeals from the Arkansas Workers’ Compensation

Commission’s July 14, 2022, denial of her claim for additional medical treatment, temporary

partial-disability benefits, wage-loss benefits, attorney’s fees, and benefits pursuant to

Arkansas Code Annotated section 11-9-505(a)(1) (Repl. 2012) for her workplace injury,

finding that she failed to prove that she was entitled to any of the requested benefits. On

appeal, Gant argues that the Commission’s opinion is not supported by substantial evidence

and is contrary to the facts and applicable law. We affirm.

Gant was a forty-seven-year-old female at the time of her injury and worked for First

Step, Inc., as a caregiver in charge of bathing, grooming, cooking, cleaning, shopping, and

performing various other tasks for clients. She sustained an admittedly compensable back

injury on or about April 17, 2020, while she was taking a client shopping. Gant was trying
to load the client’s wheelchair into her car when she accidentally struck the electric

wheelchair control, causing the wheelchair to knock her into her car.

Gant saw a number of medical professionals during her treatment for her injury. She

initially saw her family physician, Dr. Jenny Navarro, who noted that she complained of right

hip pain. Gant was ultimately referred to Dr. Wayne Bruffett, a spinal specialist, when her

hip pain continued unabated. Over time, Gant continued to complain of right hip pain and

was treated conservatively with injections and physical therapy. Eventually, Dr. Bruffett

scheduled her for an MRI, which indicated degenerative changes to her spine and a

herniated disk at L5-S1. Dr. Bruffett performed successful surgery to repair the herniated

disk; after a healing period, Gant’s right hip pain was resolved. Gant underwent a functional

capacity evaluation on January 13, 2021. She gave a very unreliable effort; the report reflects

that she only had thirty-four out of fifty-five consistency measures within expected limits.

The report further stated that Gant produced “low and inconsistent grip strength,” “self-

limiting effort,” and inconsistent walking patterns. The examiner felt that she could at least

do sedentary work. Dr. Bruffett gave her a disability rating of 10 percent to the body as a

whole, which the Commission approved when Dr. Bruffett advised the Commission that

Gant had reached MMI (maximum medical improvement). Dr. Bruffett released her to work

without restrictions on June 21, 2021. However, he noted she would have some limitations.

Ms. Brooke Gilbert, First Step’s HR director, provided testimony that First Step

provided Gant light-duty work at the same rate of pay and hours as her job when she was

injured, but she failed to come to work on many occasions. She eventually stopped coming

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to work altogether. After her release without restrictions by Dr. Bruffett on June 21, 2021,

Ms. Gilbert sent Gant two certified letters offering Gant her pre-injury job at the same rate

of pay.

While being treated by Dr. Bruffett through June of 2021, Gant failed to tell Dr.

Bruffett that she was involved in a motor vehicle accident on April 29, 2021, where she

complained of pain in her neck, upper back, lower back and right hip. Gant petitioned the

Commission to have a change of physician to Dr. Amir Qureshi because she was reporting

left hip pain. Dr. Qureshi recommended additional medical treatment for left side pain.

In a letter to the commission, Dr. Bruffett stated “Gant is now seeing Dr. Qureshi for

left sided symptoms. Therefore, I would say with a reasonable degree of medical certainty

that the procedure which he is proposing on the left is not necessary or indicated for her

Worker’s Compensation injury of 4/17/2020 which resulted in right sided pain.” The

Commission denied her request for additional medical treatment.

In appeals involving claims for workers’ compensation, this 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. Galloway v. Tyson Foods, Inc., 2010 Ark. App. 610, at 5,

378 S.W.3d 210, 213. Substantial evidence exists if reasonable minds could reach the

Commission’s conclusion. Id. at 5, 378 S.W.3d at 213. The issue is not whether the

appellate court might have reached a different result from the Commission; if reasonable

minds could reach the result found by the Commission, the appellate court must affirm. Id.

Where the Commission denies a claim because of the claimant’s failure to meet his burden

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

Commission’s decision if its opinion displays a substantial basis for the denial of relief. Id.;

see also Grothaus v. Vista Health LLC, 2011 Ark. App. 130, 382 S.W.3d 1.

The Commission has the duty to weigh the medical evidence just as it does any other

evidence, and its resolution of the medical evidence has the force and effect of a jury verdict.

Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s

province to weigh the totality of the medical evidence and to determine what evidence is

most credible. Minn. Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). We defer

to the Commission’s findings on what testimony it deems to be credible. Id. When there

are contradictions in the evidence, it is within the Commission’s province to reconcile

conflicting evidence and to determine the true facts. Ark. Dep’t of Health v. Williams, 43 Ark.

App. 169, 863 S.W.2d 583 (1993).

I. Additional Medical Treatment

Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an employer to

provide an employee with medical and surgical treatment “as may be reasonably necessary in

connection with the injury received by the employee.” What constitutes reasonably necessary

treatment is a question of fact for the Commission. LVL, Inc. v. Ragsdale, 2011 Ark. App.

144, 381 S.W.3d 869. The Commission has authority to accept or reject medical opinion

and to determine its medical soundness and probative force. Id. Furthermore, it is the

Commission’s duty to use its experience and expertise in translating the testimony of medical

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experts into findings of fact and to draw inferences when testimony is open to more than a

single interpretation. Id.

Gant’s first examination by her personal physician, Dr. Jenny Navarro, after her work

injury indicated only right hip pain on April 22, 2021. After conservative treatment was

unsuccessful, Gant was referred to Dr. Bruffett. Dr. Bruffett opined after her MRI that she

had disc herniation at L5-S1 and recommended surgery. Gant underwent a microscopic

partial discectomy L5-S1 on the right side for a disc herniation that was sustained as a result

of a work injury. On postsurgery follow up, Dr. Bruffett noted that Gant’s nerve pain was

gone. Not only does Gant have a long history of three motor vehicle accidents involving

injuries to her back prior to her compensable injury, she experienced a significant motor

vehicle accident on April 29, 2021, with injuries to her neck, upper back, lower back and

left hip. Gant told Dr. Qureshi in her initial examination on June 29, 2021, that the pain

radiates to her left leg, left knee, and left side hip. Gant admitted to Dr. Qureshi that her

right hip pain had been resolved. Dr. Bruffett’s undisputed medical opinion states within a

degree of medical certainty that Dr. Qureshi’s treatment is not related to her compensable

injury.

The Commission found that Dr. Bruffett’s testimony was more credible than the

testimony of Gant, and Dr. Qureshi’s treatment was not related to the workers’-

compensation claim. Questions concerning the credibility of witnesses and the weight to be

given to their testimony are within the exclusive province of the Commission. Williams, 43

Ark. App. 169, 863 S.W.2d 583. On the basis of these facts, there is substantial evidence to

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support the Commission’s findings that Gant failed to prove that she is entitled to additional

medical treatment.

II. Temporary Partial-Disability Benefits

Gant argues that Arkansas Code Ann. § 11-9-502 allows her to receive temporary

partial-disability benefits for weeks ending June 20, 2020, through August 29, 2020.

However, this section contemplates an employee who has returned to work but, because of

a temporary partial disability, is not earning the same wages as before the injury. In this case,

Gant was released by Dr. Larey to restricted duty work on June 23, 2020, and First Step, Inc.,

placed Gant on light-duty work answering the telephone earning the same wages and working

the same hours as before her accident.

Gant’s reduction in income during this period was a result of her failure to work.

Gant stopped coming to her light-duty job and would explain that she was with her

granddaughter or simply felt that she could not work. Gant could have made the same wages

working the same number of hours performing light-duty work such as answering the phone,

but she simply chose not to work. An award of temporary partial-disability benefits is

appropriate during the healing period in which an employee suffers a partial incapacity to

earn wages. Dodson v. Valley Behavioral Health Systems, 2022 Ark. App. 128, at 7 (citing Amaya

v. Newberry's 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008)). We find that there was

substantial evidence to support the Commission’s denial of additional total partial-disability

benefits.

III. Wage-Loss Benefits

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Gant next argues that she is entitled to wage-loss benefits because, due to her work

history and education background, she is not likely to be able to find employment other than

minimum-wage heavy-manual-labor work. The Commission is charged with the duty of

determining disability based on a consideration of medical evidence and other factors

affecting wage loss, such as the claimant’s age, education, and work experience. 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. Ark. Highway & Transp. Dep’t v. Work, 2018 Ark. App. 600, 565 S.W.3d 138.

When a claimant has been assigned an anatomical-impairment rating to the body as a whole,

the Commission has the authority to increase the disability rating, and it can find a claimant

totally and permanently disabled based on wage-loss factors. Gibson v. Wal-Mart Assocs., Inc.,

2012 Ark. App. 560. The wage-loss factor is the extent to which a compensable injury has

affected the claimant’s ability to earn a livelihood. Id. The Commission has the duty to

determine disability on the basis of a consideration of medical evidence and other matters

affecting wage loss, including the claimant’s age, education, and work experience. Id. The

claimant carries the burden of proving an inability to earn any meaningful wages in the same

or other employment. Id. The claimant’s motivation to return to work, or lack thereof, is a

factor that can be considered when determining an employee’s future earning capacity.

Meadows v. Tyson Foods, Inc., 2013 Ark. App. 182.

The commission found Gant’s testimony evasive and lacking in credibility. Several

factors indicated she was not motivated to work again. Gant’s functional capacity evaluation

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was deemed highly unreliable, and the examiner was clear that he thought she was not giving

her best efforts on the basis of his observations. Further, she showed a lack of motivation to

return to work; she did not comply with the employer’s offer of light-duty work answering

the phones at the same wage rate and hours she had prior to her injury. Finally, she was

offered her previous position twice by the employer by certified letter at her same rate of pay

and hours after Dr. Bruffett released her with no restrictions to return to work. Gant ignored

the substantial efforts of her employer to provide her every possible opportunity to return to

work. We find there is substantial evidence to support the Commission’s finding that Gant

failed to prove her ability to earn a livelihood had been affected by the injury.

IV. Benefits Pursuant to Ark. Code Ann. § 11-9-505(a)(1)

Gant argues that she is also entitled to benefits pursuant to section 11-9-505(a)(1) for

damages against her employer for refusing to return her to work. In order to receive benefits

under Ark. Code Ann. § 11-9-505(a)(1), the claimant has the burden of proving by a

preponderance of the evidence that (1) she sustained a compensable injury; (2) there is

suitable employment within her physical and mental limitations available with the employer;

(3) the employer refused to return her to work; and (4) the employer’s refusal to return her

to work was without reasonable cause. See Torrey v. City of Fort Smith, 55 Ark. App. 226, 230,

934 S.W.2d 237, 239 (1996); Nat’l Park Cmty. Coll. v. Castaneda, 2018 Ark. App. 458, 558

S.W.3d 911. Gant has failed to meet her burden of proof with respect to elements (2), (3),

and (4), supra.

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Ms. Gilbert testified concerning First Step’s light-duty work policies and procedures,

and that when an injured employee is released to return to work on light duty, the company

has a number of openings, and she works with the claimants to put them anywhere they are

comfortable. Gant was provided light-duty work when she was released from Dr. Bruffett.

Gant took the job for a short period of time but began to miss work without reasonable

excuses, then stopped coming to work altogether. Ms. Gilbert testified that when a claimant

is not comfortable returning to work for some reason, she immediately offers them Family

Medical Leave Assistance (FMLA), which must be certified by a physician. As Gant herself

admitted, when First Step offered her FMLA, she was unable to get her family physician or

any other physician to place any physical limitations or restrictions on her, so she could not

qualify for FMLA. Ms. Gilbert also testified that Gant was offered the opportunity in two

letters to return to work in her previous position after she was released with no restrictions

on January 25, 2021, but she ignored the offer. Questions concerning the credibility of

witnesses and the weight to be given to their testimony are within the exclusive province of

the Commission. Williams, 43 Ark. App. 169, 863 S.W.2d 583. The Commission found

Ms. Gilbert to be a more credible witness than Gant. The Commission is not required to

believe the testimony of the claimant or any other witness but may accept and translate into

findings of fact only those portions of the testimony that it deems worthy of belief. Jordan v.

Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Patterson v. Ark. Dep’t of Health,

343 Ark. 235, 33 S.W.3d 151 (2000). There is substantial evidence to support the

commission’s finding that claimant failed to meet her burden of proof in demonstrating the

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respondents are liable for the payment of additional benefits pursuant to Ark. Code Ann. §

11-9-505(a)(1).

V. Attorney’s Fees

Finally, Gant argues that the Commission erred in denying attorney’s fees in this case

pursuant to Ark. Code Ann. § 11-9-715(a)(2)(B)(ii) (Repl. 2012), which provides that fees

shall be allowed only on the amount of compensation controverted and awarded. The

amounts in controversy were not awarded, so no attorney’s fees accrued to the benefit of

counsel by statute. Since we are affirming the findings of the Commission as discussed

above, Gant is not entitled to attorney’s fees.

Affirmed.

THYER and WOOD, JJ., agree.

Caldwell Law Firm, P.A., by: Andy L. Caldwell, for appellant.

Worley, Wood & Parrish P.A., by: Melissa Wood, for separate appellee First Step, Inc.

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