ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

JAMES NASH,

APPELLANT

v.

MARIANNA WAREHOUSE and AGRI GROUP-COMP

APPELLEES

CA02-194

NOVEMBER 20, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION, NO. E902590,

AFFIRMED

James Nash worked for Marianna Warehouse as a forklift driver and general laborer. He was injured on February 12, 1999, when he threw a chain over a load of lumber: the chain popped, the boom hit his right leg, and he was knocked backwards. Several weeks later Dr. Susan Austin performed surgery to repair his quadriceps tendon. The respondents accepted the injury as compensable and paid benefits on an anatomical impairment rating of 5% for the lower extremity.

On February 8, 2001, a hearing was conducted by an administrative law judge on disputed issues. The ALJ found that Nash had failed to prove that he was entitled to an anatomical rating above 5%; to permanent and total disability benefits; to temporary total disability benefits from July 20, 1999, through March 7, 2000; or to additional treatment from Dr. Austin. The Commission affirmed and adopted the ALJ's opinion. Nash raises

three points of appeal from the decision of the Commission, contending (1) that the Commission erred in accepting the rating of 10.5 weeks, (2) that he was entitled to additional temporary total benefits, and (3) that he is permanently and totally disabled. Finding appellant's arguments on these points without merit, we affirm.

The Commission ruled that Nash had not established a causal relationship between his compensable injury and any disabling condition above the 5% lower-extremity impairment rating accepted by the respondents. This ruling was based upon a finding that any gait or back or hip problems Nash suffered were a result of his failure to properly rehabilitate his knee injury.

Nash argues that the evidence supports a permanent disability rating of 18 to 20% to the body as a whole. He relies upon his own testimony and refers us to medical records as evidence that the compensable leg injury caused him to limp and to walk with a cane or crutches. Those medical records include Dr. Austin's assignment of a 18% whole-body impairment and a 20% rating by Dr. William Barr, an orthopedic surgeon who examined Nash in October 2000 and reviewed the medical records. Nash points out that these ratings referred to AMA guidelines and included the factor of gait derangement. He contends that the reports of these two physicians should be given greater weight than that of Dr. Earl Peeples, an orthopedic surgeon who performed an independent medical examination of Nash.

Dr. Peeples noted that Nash's anxiety and marked morbid obesity negatively impacted his recovery, and that improvement was "up to the patient." Dr. Peeples opined that Nash's impairment rating should not take into account atrophy and gait derangement because neither would be anticipated in a patient who cooperated with his rehabilitation and who rehabilitated to his maximum potential. Dr. Austin and a physical therapist both noted that Nash had not been compliant with treatment recommendations, and the rehabilitation case manager noted that recovery had been interrupted by Nash's lack of compliance with the treatment plan. Finally, a functional evaluation performed by Fred Armstrong, director of industrial rehabilitation at Physiotherapy Associates in Memphis, includes the notation that Nash "had put forth little effort in complying with performing his home exercise program on a consistent basis and/or engaging in any extent of physical activity to increase his physical strengths and functional abilities."

The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. 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 it deems worthy of belief. Smith-Blair v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). We find that the case manager's observations, the medical records, andthe functional evaluation constitute sufficient evidence to support the Commission's finding that any problems related to the compensable injury were a result of Nash's failure to comply with his rehabilitation plan. Therefore, we affirm the Commission's finding that Nash was not entitled to an impairment rating above the 5% lower-extremity rating.

For scheduled permanent injuries, the injured employee is to receive compensation for temporary total or temporary partial benefits during the healing period or until the employee returns to work, whichever occurs first. Ark. Code Ann. § 11-9-521 (Repl. 1998); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Nash contends that he did not return to work. He relies upon his testimony that, after being released to light duty two days a week while he was to continue physical therapy three days a week, he was unable to perform job duties that were supposed to be light duty. He testified that on July 22, 1999, he reported for light duty but had to leave to see his doctor after approximately two hours because he was hurting too much to stay at work. He also said that after a brief session of "light duty," he was assigned work that was equivalent to what he did before his injury.

The respondents contend that the denial of additional temporary total disability was supported by substantial evidence because Nash was provided light duty, but he walked away after the two-hour period and did not return. The medical records show that on June 17, 1999, Dr. Austin released Nash to sedentary duty. Joe Odle, the warehouse manager for Marianna Warehousing, testified that he was not sure if light duty was available when Nashfirst came back on July 22, but that Odle had Nash sit at a desk tearing computer printout sheets before Odle requested that Nash use the forklift and the tug, a small tractor; it was then that Nash left to see the doctor. Odle described Nash's regular job duties as running a forklift, moving bales of cotton that weighed up to 500 pounds, loading and unloading trucks, and doing general maintenance. Odle stated that he would have tried to accommodate Nash's needs had he stayed on the job, but that he never returned to work after the two-hour period of July 22. Odle testified that he hired a replacement for Nash in September 1999.

It is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.3d 472 (1997). Here, the Commission found that Nash returned to work on July 22, 1999; that he worked only two hours and never returned; and that his employer held the light-duty job open for him until September 1999. We find that Odle's testimony constitutes sufficient evidence to support these findings and the Commission's finding that, therefore, Nash was not entitled to additional temporary total disability benefits.

Nash contends that the Commission's finding that he is not entitled to permanent and total disability is inconsistent with its finding that he had not reached his maximum medical improvement. He points to his testimony that his math and reading skills are poor and that he has always done heavy manual work; and to a vocational evaluation by Dr. Trammel and the opinion of Bob White, a vocational specialist, that Nash requires oral instructions to dowork, requires on-the-job training, and will be limited by physical restrictions.

The Commission found a number of factors indicating that Nash was not totally and permanently disabled. It noted testimony of vocational specialist Gay Signoff that Nash could perform some jobs in the community, video tapes reflecting that he could drive light vehicles, the two hours on July 22 when Nash tore computer printout sheets apart and drove a small tractor, and medical testimony that he was incompletely rehabilitated primarily because he had not exerted maximum rehabilitative effort.

Again, we note that the issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Green Bay Packaging v. Bartlett, supra. We find that the factors upon which the Commission relied constitute sufficient evidence to support the finding that Nash was not entitled to permanent and total disability.

Affirmed.

Jennings and Crabtree, JJ., agree.