Mack Bolton v. ConAgra

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

MACK BOLTON

APPELLANT

V.

CONAGRA

APPELLEE

CA00-127

September 20, 2000

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E813655, E904293]

AFFIRMED

The appellant in this workers' compensation case, a long-time employee of ConAgra, filed a claim for benefits asserting that he sustained a compensable back injury on January 29, 1998, when he bent over to work on a machine. Appellant had suffered a prior back injury in appellee's employ in 1986, and had previously engaged in amateur weight-lifting. The administrative law judge found that appellant failed to prove a compensable injury, noting that none of the medical reports contemporaneous with the injury mentioned the incident asserted to have taken place on January 29, 1998. Following de novo review, the Commission adopted the ALJ's decision. This appeal follows.

Appellant contends on appeal that the Commission erred in failing to find that ConAgra was estopped to deny compensability. He additionally asserts that he proved acompensable injury by the preponderance of the evidence, and that he proved the existence and extent of the injury by objective medical evidence. None of these arguments have merit.

First, estoppel is ordinarily a question of fact, Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997), and neither the ALJ nor the Commission made any finding of estoppel. As we noted in Teague v. C & J Chemical Co., 55 Ark. App. 335, 935 S.W.2d 605 (1996), an appellant cannot argue estoppel for the first time on appeal.

Second, it does not matter that appellant may have proven by a preponderance of the evidence that he sustained a compensable injury. The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000). Instead, in cases where the Commission denies a claim because of a failure to show entitlement by a preponderance of the evidence, we will affirm if the Commission's opinion displays a substantial basis for the denial of relief. Williams v. Ark. Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979). Here the Commission discounted appellant's testimony that he suffered a work-related injury on January 29, 1998, because the contemporaneous medical reports made no mention of such an injury. The question is one of credibility. It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony, and to draw inferences when the testimony is open to

more than a single interpretation; when it does so, its findings have the force and effect of a jury verdict. Hooks v. Gaylord Container Corporation, 67 Ark. App. 159, 992 S.W.2d 844 (1999). Given our standard of review and the record before us, the Commission's opinion displays a substantial basis for the denial of relief.

Third, appellant contends that he proved the existence and extent of the injury by objective medical evidence. Given that there is substantial evidence to support the Commission's finding that appellant failed to prove that he sustained a work-related injury, this issue is moot and we need not address it.

Affirmed.

Neal and Stroud, JJ., agree.