WAYMOND M. BROWN, Judge.
Appellant appeals the Arkansas Workers' Compensation Commission's (Commission) reversal of the administrative law judge's (ALJ) decision with respect to finding that claimant was permanently and totally disabled (PTD). On appeal, claimant argues that (1) the Commission's reversal was unsupported by substantial evidence and (2) the Arkansas Workers' Compensation Act (the Act) is unconstitutional in violation of claimant's right to substantive and procedural due process.
Appellant worked for appellee LaCroix Optical as a blocker. In that position, she used various tools and processes to make lenses. In the course of and within the scope of that employment, she suffered a neck injury on or about April 19, 2004. Appellee accepted the injury as compensable and paid benefits pursuant to a 16% permanent partial disability (PPD) rating by Dr. Karl Detwiler. Appellees also paid for appellant's medical expenses, which included four surgeries to her cervical spine. Appellant reached maximum medical improvement on February 27, 2006.
After her healing period ended, appellant brought an action seeking to be declared totally and permanently disabled and arguing that the Act was unconstitutional.
In an opinion filed February 12, 2013, the Full Commission (1) found that appellant failed to prove she was permanently and totally disabled, thereby reversing the ALJ, and instead awarded her a thirty percent wage loss disability; and (2) dismissed appellant's constitutional challenge to the Act due to her failure to prove that the Act was unconstitutional.
For her first argument, appellant argues that the Commission's reversal was unsupported by substantial evidence. The appellate court reviews the decision of the Commission and not that of the ALJ.
In support of her contention that she is permanently and totally disabled and unable to work, appellant presented opinions from two vocational specialists. On August 27, 2009, Robert White performed a vocational assessment on appellant. In his vocational evaluation, dated September 2009, he concluded that appellant "will not be able to return to the labor force now or in the future due to her past medical history." Sarah Moore performed a vocational assessment on appellant on December 8, 2011. In her vocational report, dated January 31, 2012, Ms. Moore concluded that appellant was "unable to sustain competitive employment based on the limitations imposed by her pain and her residual functional capacity[.]" However, evidence from two of appellant's treating physicians contradicted the vocational specialists.
On May 4, 2005, after stating that appellant complained "bitterly" that she was unable to work, Dr. Karl Detwiler reported "I believe she is able to do more than she actually is." On November 28, 2005, Dr. Detwiler reported that appellant could increase her activity and that she could return to part-time work with "a ten pound lifting restriction, no repetitive bending, stooping, bending, climbing, looking up, looking down or side-to-side." On January 11, 2006, Dr. Tyler Boone noted that appellant "probably will need permanent restrictions to avoid any job, which involves repetitive reaching away from body overhead." However, Dr. Boone went on to note that although he did not know if appellant would ever be able to return to her previous type job position, "she could possibly be retrained." On February 27, 2006, Dr. Detwiler agreed with Dr. Boone that appellant could return to work with restrictions and advised that "[j]ob vocational evaluation or subsequent retraining would benefit Ms. Strother" because she had reached maximum medical improvement. Finally, on June 14, 2006, Dr. Detwiler stated "I advised her that she needs to return to work with a 10-lbs. restriction and four hours a day for the first two weeks and progressing to 10-lbs and eight hours a day." The opinions of Drs. Detwiler and Boone were corroborated by that of Dr. Peggy Brown, who completed a neurology consultation on appellant on October 11, 2010. Dr. Brown opined that appellant was "able to use all her extremities and is fully ambulatory[,]" though she "would not be able to perform any tasks that require heavy lifting."
When the Commission weighs medical evidence and the evidence is conflicting, its resolution is a question of fact for the Commission.
The only other evidence supporting appellant's contention that she is permanently and totally disabled was her own testimony and that of her husband. Appellant testified that "all but an hour and a half per day I am in bed typically." She also testified that on days when she feels good, she goes into town, "[b]ut the pain will be bad the next day." Appellant's husband testified that appellant "had probably three good days per month in which she can get out of bed, get dressed, maybe go for a walk"; will be "lying in bed" the day following a "good day"; has "one bad day per week" when she "just stays in her bedroom"; and "might be productive on a typical day a total of three to three-and-a-half hours." And though he stated that appellant's back and feet were not affected by appellant's April 2004 injury, he stated that "[a]ny problems with those areas developed after that."
The Commission is not bound to accept the testimony of any witness, even if uncontradicted.
Appellant claims that the "Commission either ignored or unduly minimized evidence," namely her evidence. However, the Commission's opinion shows that it did neither as it states (1) "the opinions of treating physicians Dr. Boone and Dr. Detwiler are entitled to more evidentiary weight than the opinions of Robert White and Sarah Moore," (2) Dr. Boone and Dr. Detwiler's opinions were corroborated by the February 2012 surveillance video, and (3) "[t]here is no probative evidence of record corroborating the conclusions of Robert White and Sarah Moore that the claimant cannot return to gainful employment in any capacity." We cannot say that the Commission's decision was not supported by substantial evidence; therefore, we find no error.
In her second argument, appellant argues that the Act in its entirety is unconstitutional. Specifically, appellant argues that (1) the Commission's ability to reverse a specific finding of an ALJ regarding credibility of the claimant is a violation of her right to procedural and substantive due process as granted in the Arkansas Constitution, article 2, section 3; and (2) the provisions of the Arkansas Workers' Compensation Law, which allow the credibility findings of the ALJ to be disregarded, in effect places the judicial functions of the adjudication of claims for injured workers under the executive branch of the State of Arkansas in violation of Arkansas Constitution, article 2, sections 2, 18 and 29. Appellant's counsel has made these identical arguments in other cases.
In support of this argument, appellant quotes a footnote from Kimbell v. Association of Rehabilitation Industry, in which our supreme court expressed a willingness to address the issue of whether a constitutional violation occurs when the Commission and reviewing court are permitted to ignore the findings of the law judge, the only adjudicator who sees and hears witnesses.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.