                                           Cite as 2013 Ark. App. 548



Susan Williams            ARKANSAS COURT OF APPEALS
2019.01.03
                                                DIVISION IV
14:00:22 -06'00'                                No. CV-13-274


         BRENDA L. (JONES) PRUITT                          Opinion Delivered   October 2, 2013
                               APPELLANT
                                                           APPEAL FROM THE ARKANSAS
         V.                                                WORKERS’ COMPENSATION
                                                           COMMISSION
                                                           [NO. F908541]
         COMMUNITY DEVELOPMENT
         INSTITUTE HEAD START and
         ZURICH AMERICAN INSURANCE
         COMPANY                                           AFFIRMED
                              APPELLEES



                                        RITA W. GRUBER, Judge

                Brenda L. (Jones) Pruitt (now appellant) sustained a compensable workers’

         compensation injury in a vehicular accident on September 14, 2009, when a van she was

         driving for Community Development Institute Head Start hydroplaned off the road. On

         April 6, 2012, an administrative law judge conducted a hearing to determine additional

         benefits related to the compensable injury. The law judge found that Ms. Pruitt was

         permanently and totally disabled and that respondents (now appellees) were liable for a thirty-

         six-percent statutory penalty for late payment of medical benefits because their failure to pay

         was willful and intentional.    Additionally, on his own motion, the law judge found

         respondents in contempt of the Commission’s previous order and assessed a $5,000 statutory

         fine against them.

                The respondents appealed to the Commission, which rendered its decision on February
                                  Cite as 2013 Ark. App. 548



12, 2013. Affirming the law judge in part, the Commission found that appellees’ failure to

pay medical benefits was intentional, and that Ms. Pruitt was entitled to the thirty-six-percent

statutory penalty for late payment of medical benefits. The Commission vacated the law

judge’s sua sponte contempt finding against appellees and reversed the finding of total

permanent disability, finding instead a forty-percent wage-loss disability in excess of a

thirteen-percent permanent anatomical impairment to the back and one-percent permanent

anatomical impairment to the right shoulder. Ms. Pruitt appeals, contending that substantial

evidence does not support the Commission’s finding that she was not permanently and totally

disabled by her compensable injury.

       Permanent total disability is the inability, because of compensable injury or

occupational disease, to earn any meaningful wages in the same or other employment. Ark.

Code Ann. § 11-9-519(e)(1) (Repl. 2002). In considering claims for permanent partial-

disability benefits in excess of the percentage of permanent physical impairment, the Workers’

Compensation Commission may take into account such factors as the employee’s age,

education, work experience, and other matters reasonably expected to affect his or her future

earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002).

       Ms. Pruitt contends that fair-minded persons with the same facts before them could

not have reached the Commission’s conclusion. She points out that she was nearly sixty-five

years old at the time of the Commission’s decision, had only a high school education and no

“real transferrable job skills” other than food preparation, had been limited to permanent

light-duty work by her neurosurgeon and to a ten-pound lifting restriction for the right upper


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extremity by her orthopedic surgeon, and had undergone right-shoulder surgery. She notes

her testimony that she is right-handed and cannot lift, bend, stoop, do housework, or perform

cooking duties for more than twenty minutes without sitting down to rest. Finally, she notes

her neurosurgeon’s explanation that she “also suffered a spinal cord injury that caused

weakness of the proximal left lower extremity” and that additional pain management or

implantation of a spinal-cord stimulator might become necessary.

       The Commission, in reversing the law judge’s finding of permanent total disability,

found that Ms. Pruitt did not prove an inability to earn any meaningful wage in the same or

other employment. The Commission wrote:

              The claimant has not sought employment with the respondents or any other
       employer since September 14, 2009. The claimant testified that she saw no reason why she
       should attempt to return to work, because she was receiving Social Security Disability benefits.
       The claimant’s lack of motivation to return to appropriate gainful employment is an
       impediment to an assessment of the claimant’s loss of earning capacity. Ellison v.
       Therma Tru, 71 Ark. App. 410, 30 S.W 3d. 769 2000). We assign minimal evidentiary
       weight to the claimant’s testimony, “I can’t do anything at all.” However, the claimant
       is now 64 years old with no formal education beyond high school and a history of
       unskilled manual labor. The claimant has been assigned a 13% permanent anatomical
       impairment for her compensable back injury and is also entitled to a 1% permanent
       impairment for her compensable shoulder injury. The claimant’s treating physicians
       have released the claimant to permanent light-duty work. In considering the claimant’s
       age, limited education, work experience, permanent restrictions, and lack of
       motivation to find appropriate gainful employment, the Full Commission finds that the
       claimant sustained wage-loss disability in the amount of 40%.

(Emphasis added.) Ms. Pruitt asserts that the Commission improperly focused on her

statement about not needing to look for work—a statement made out of “obvious frustration”

during cross-examination—and that only the law judge—who observed her emotional state

and the context in which the statement was given—could assign it proper weight. She asserts


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that the Commission had no valid reason to discount sound, reasonable, and undisputed

medical testimony from her authorized treating physicians.

       It is well established that we defer to the Commission’s findings of credibility and

resolution of conflicting evidence—even when the Commission does not take live testimony.

Welcher v. Davis Nursing Home, 2009 Ark. App. 831; see Stiger v. State Line Tire Serv., 72 Ark.

App. 250, 35 S.W.3d 335 (2000). Where the Commission denies benefits because the

claimant has failed to meet her burden of proof, the substantial-evidence standard of review

requires that we affirm if the Commission’s decision displays a substantial basis for the denial

of relief. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000).

       Applying the proper standards of review in the present case, we affirm the decision of

the Commission. The Commission exercised its duty to assess the weight and credibility of

evidence regarding Ms. Pruitt’s ability or inability to earn meaningful wages, and it was within

the Commission’s authority to assess that weight and credibility differently than did the

administrative law judge. This and other findings by the Commission constitute a substantial

basis on which it reduced the law judge’s finding of permanent total disability to a forty-

percent wage-loss disability.

       Affirmed.

       HIXSON and WOOD, JJ., agree.

       Orr Willhite, PLC, by: M. Scott Willhite, for appellant.

       Mayton, Newkirk & Jones, by: Mike Stiles, for appellees.




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