Larry Norman v. Penske and Old Republic Insurance

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

MARGARET MEADS, JUDGE

DIVISION II

LARRY NORMAN

APPELLANT

V.

PENSKE and OLD REPUBLIC INSURANCE

APPELLEES

CA00-161

September 27, 2000

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. E900424]

AFFIRMED

Larry Norman appeals from a decision of the Workers' Compensation Commission which found that appellant failed to prove that he sustained a compensable injury to his lower back and denied his claim for benefits. We affirm.

At the hearing on his claim, appellant testified that he operated a feed truck for appellee Penske. On November 24, 1998, he pulled something in his back while opening a gate to make a delivery. He finished making his deliveries, and when he returned to the office he told his supervisor, Roger Wright, that he had hurt his back, needed to get off his feet, and might just "snap right back." The next morning appellant had problems with his left leg and could not walk very far. Appellant went to the Family Clinic where he saw a nurse intern. Appellant was eventually released to light-duty work, but Wright told him he needed a complete release before he could return. Appellant has since seen Dr. Robert

Wilson, who referred him to Dr. James Blankenship after an MRI was performed. Appellant has not worked since the incident.

Appellant testified that he had back problems in 1981; leg pain and back problems in 1994; and back surgery in 1994. He injured his back while on vacation in July 1998, and subsequently missed work. He said that it does not take much to cause his back to flare up; sometimes just bending over is enough. Appellant said that his current problems are with his right leg; his previous problems were with his left leg; and he never had any problems with his right leg before.

Wright testified that appellant lost no work because of his back until July 1998, when he missed three days after hurting his back while on vacation. Appellant asked to be off work on Thursday and Friday of Thanksgiving week and was informed that would not be possible. Wright believed that appellant's request was denied on the Friday or Monday before Thanksgiving. Appellant reported his injury on Tuesday, November 24. Wright testified that he believed appellant intended to get Thanksgiving off, and he managed to do so. In regard to this matter, appellant testified that he recalled requesting those days off, that his request was denied, and that he returned to work the next Monday as scheduled without problems but was told he could not work without a full release.

The record also contains stipulated testimony by several physicians. Dr. Randall Oates on November 25, 1998, noted "pain, radiculopathy to the right." On December 2, 1998, Dr. Robert Wilson noted radicular pain on the right. Subsequently on December 12,Dr. Wilson wrote that appellant gave a history of back injury at work; pain is in his back and right leg; the MRI is unchanged from 1996 and shows no nerve-root impingement; and his diagnosis is lumbar strain with radicular features. Dr. Wilson's narrative report states, "Cranial nerves 2-12 normal. Sensory and motor normal. Gait and station normal. . . . straight leg raise negative." On March 3, 1999, Dr. James Blankenship wrote that appellant has right leg weakness and pain. A neurological consultation dated March 3, 1999, under "Review of Systems" states "Neg. All systems." The consult contains neither a diagnosis nor a treatment plan.

On this evidence, the administrative law judge denied appellant's claim, stating that appellant's own testimony was the only direct evidence presented to establish the compensability of his claim, and he "simply [did] not find his testimony to be credible." The law judge noted that the March 1999 consult was mostly worthless because there were no neurological findings, diagnosis, or treatment plan. The law judge also noted that appellant's alleged injury resulted in his being medically excused from work for the days that he had requested off. Further, there were no objective findings to support the alleged injury. The law judge had no doubt that appellant experienced difficulties with his lower back and perhaps both his legs in November 1998, but appellant's testimony was the only evidence presented to link the difficulties to an alleged injury sustained on November 24, 1998. The law judge said that he "simply [did] not find his testimony to be sufficiently credible to prove such a connection." The full Commission affirmed and adopted the law judge'sopinion.

On appeal appellant argues only that the Commission erred in denying his claim because the preponderance of the evidence establishes a compensable injury. He says that his testimony is totally uncontroverted and establishes the compensability of his claim.

When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Where the Commission denies a claim because of failure to show entitlement to benefits, 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. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Id. A party's testimony is never considered uncontroverted. Lambert v. Gerber Prods., Co, 14 Ark. App. 88, 684 S.W.2d 842 (1985). On a claim for benefits, a claimant has the burden of proof by a preponderance of the evidence. Bartlett v. Mead Containerboard, 47 Ark. App. 181, 888 S.W.2d 314 (1994).

Here, appellant's testimony was the only testimony supporting the compensability of his claim. The Commission found him not to be credible. This finding is a permissible one, and we conclude that the Commission's decision displays a substantial basis for the denialof relief.

Affirmed.

Robbins, C.J., and Crabtree, J., agree.