Mary L. Reed v. Arkansas Methodist Hospital

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA00-167

SEPTEMBER 27, 2000

MARY L. REED

APPEAL FROM THE ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E809731]

ARKANSAS METHODIST HOSPITAL

APPELLEE

AFFIRMED

This appeal arises from a decision of the Arkansas Workers' Compensation Commission finding that appellant, Mary Reed, failed to prove by a preponderance of the evidence that she sustained a compensable injury during the course and scope of her employment with appellee, Arkansas Methodist Hospital. Appellant's sole argument on appeal is that the Commission's decision is not supported by substantial evidence.

At a hearing held before the administrative law judge on February 23, 1999, appellant testified that she was forty-three years old and worked for appellee as a monitor tech and nurse's aide in July 1998. In July 1998, appellant worked the 11:00 p.m. to 7:00 a.m. shift and was assigned to work "4 Central, the heart floor." Her job duties included taking blood pressures and temperatures, turning patients, and assisting patients. On the morning of July 15, 1998, at 4:00 a.m., appellant testified that she performed her regular job duties. At that time, appellant testified that she was the only aide on her assigned floor, but stated that another aide, Martha Tucker, was called from another floor to assist her. During one of her patient "turns," appellant testified that as she and Ms. Tucker attempted to pull a patient upward in bed, she "felt a pull" in her back. Thereafter, appellant gave the following account:

[I] kinda [sic] slumped over some, and I told Martha, I said I think I've hurt my back or, you know, strained my back. And nothing else was said inside the patient's room. And after we finished our turns and all the work then, I went back up to the nurse's station. Then I had told the nurse in charge that I had hurt my back, or I had strained my back. And nothing else was said to that effect or anything.

Appellant testified that she felt the pull on the left side of her lower back and that her back began to hurt on the morning of the incident and to worsen on the morning of July 16, 1998. She testified that she worked her shift on July 16, 1998, and that she called her family physician, Dr. Michael Crawley, the following day. Appellant testified, however, that she wasn't able to see Dr. Crawley until July 24, 1998, and that she continued to work until that time. Appellant testified that when she informed the nurse in charge about her July 15 injury, she thought that the nurse she communicated with was Alissa Long. She also testified that from the time of her injury until she saw Dr. Crawley, she informed her supervisor, Sarah Hitt, and Marla Mosely, her shift coordinator who was on duty July 15, of her injury. Appellant further testified that she informed Johnny Butler, the nursing supervisor for appellee, of her injury during the same time frame in which she spoke with Hitt and Moseley. After being taken off work for one week by Dr. Crawley, appellant testified that she returned to work on August 3, 1998, and filled out an incident report on that day. Appellant testified that she attempted to fill out an incident report before she was seen by Dr. Crawley, but stated that the charge nurse on duty didn't know where the reports were located. Appellant also testified that she had problems with a flat tire, but couldn't recall whether her car problem occurred on July 16, 1998. She further testified that she couldn't recall the day that her family moved to a different residence, but stated that her back problems were present before the move and that "at the time we were moving, my husband and my son and his girlfriend had to do all the moving and the lifting cause [sic] I wasn't able to do that."

Martha Tucker testified that in July of 1998, she worked as a nurse's aide on the 11:00 p.m. to 7:00 p.m shift for appellee. She testified that on one night, she was switched from the floor that she normally worked to the floor that appellant was assigned. Tucker testified that she remembered assisting appellant with a male patient, and that while she and appellant lifted the patient, she remembered appellant stating that appellant's back was hurt. Ms. Tucker testified that, at that time, she didn't figure out when appellant's problem had developed and that she assumed that she and appellant moved and turned patients during the rest of the work shift.

Alissa Long testified that she received a call from appellant on the night of July 26,1998, informing her that appellant would be on bed rest until August 3. While talking to appellant, Long asked appellant if appellant had filled out an incident report. Appellant told Long that she hadn't done so and that she didn't know that she should have filled out a report. Long also asked appellant if appellant could identify the charge nurse on duty at the time of the incident, and was informed by appellant that the charge nurse on duty was Shannon Mitchell. Long testified that she was off work from July 9 through July 25, 1998. Long further testified that when appellant returned to work on August 3, 1998, appellant was only able to work for two days because appellant appeared to be unable to stand up.

Terri Schultz, who worked in appellee's payroll and human resources department, testified that under the department's administrative policy and procedures, a person is supposed to report to a charge nurse, department head, unit coordinator or supervisor when the person is injured. Schultz stated that in workers' compensation cases involving injuries, the appellee uses two physicians, Dr. Shedd and Dr. Mitchell, for any treatment. Schultz testified that Dr. Crawley was not listed as one of the physicians used by appellee for workers' compensation cases. Schultz further testified that employees of appellee are supposed to learn about the occurrence report policy during their orientation period.

Marla Mosely testified that she was not aware of appellant's July 15 injury until she received the incident report in August of 1998. She testified that she couldn't recall whether appellant had physical problems doing her job before she received the incident report. Mosely also testified that appellant did not work on the night of July 16, 1998, because of car trouble. She testified, however, that she was under the impression that appellant was notpresent on July 16 because appellant and her family were "moving a trailer."

Sarah Hitt testified that she was the unit coordinator for appellee in July of 1998. She testified that if appellant had sustained an injury at work, she would have asked appellant to fill out an incident report and report to the ER or to a physician. Hitt testified that on July 15, 1998, she was not aware of any injury involving appellant and that between July 15 and July 24, she was not aware of any problems appellant was having at work. Hitt testified that she first became aware of appellant's injury after appellant had given her an incident report in August of 1998.

Johnny Butler testified that he never received the incident report made by appellant. Debbie Vasser, director of nurses for appellee, testified that according to her records, Martha Tucker did not work on the night of July 14, 1998 and the morning of July 15. She testified that when an employee is injured on the job, he or she must inform their charge nurse of the problem and the charge nurse must then inform the employee's supervisor. Vasser testified that there are incident reports located on every floor of the hospital and that she did not receive appellant's incident report until August 11, 1998. She testified that if Martha Tucker was moved from her assigned floor to another floor on July 15, the staffing schedule would have reflected the change.

The abstract does not reflect any testimony from Shannon Mitchell.

In a medical report dated July 24, 1998, Dr. Crawley reported that appellant "thinks [sic] pulled muscle in lower back." In an office note dated August 4, 1998, Dr. Crawley reported that appellant complained of lower back pain and left hip and leg pain. An MRIreport dated August 21, 1998, showed that appellant suffered from a "central to left paramedian protrusion of disc with disc material extending inferiorly posterior to the upper portion of S1 consistent with herniated disc at L5-S1 on the left with extruded fragment." On August 28, 1998, appellant was seen by Dr. Rebecca Barrett-Tuck. Dr. Tuck gave the following history and physical report of appellant's complaints:

This is a very pleasant 42 Y/O nursing assistant who reported that on 7/15/98 she was pulling a patient up in bed when she felt a pull in her back. The first couple of days she thought she had simply pulled a muscle, however, the pain increased and began to radiate to the left and down the left lower extremity. She only took a couple of days off work to begin with, however, the pain continued to increase to the point that it was unbearable. She has been treated with heat, ice, non-steroidals, muscle relaxants and pain medication and has been off work for 2 weeks now with no relief.

Following a post-myelogram CT scan conducted on September 10, 1998, which showed a disc herniation diffusely at L5-S1, appellant underwent surgery for disc herniation on October 1, 1998. After hearing all of the evidence presented, the administrative law judge entered a decision on April 12, 1999, finding that appellant proved that she suffered a compensable injury during her employment with appellee. The full Commission reversed the ALJ's decision and found that after its de novo review of the record, appellant was not entitled to any benefits under the Act. The Commission found that appellant failed to prove by a preponderance of the evidence that she suffered an injury to her back on July 15, 1998. The Commission found that "the record contains a great deal of contradictory and unconvincing evidence on this question."

The Commission noted that although appellant corroborated her testimony with testimony from Martha Tucker, Tucker did not testify that appellant "indicated that she hurt herself at that instant or how she hurt herself." It noted that the staffing records showed that Tucker was not working on the particular night of the incident, and that the staffing schedule would have shown Tucker's presence with appellant if Tucker had actually worked with appellant. The Commission found that although appellant testified that she informed all of the RNs on her shift on the night of the injury, the witnesses at the hearing were unaware of appellant's injury at that time or unable to testify to the actual event of the injury as appellant described. It stated that although appellant seemed to be in pain after returning to work on August 3 and 4, Long could not testify as to how appellant was injured. The Commission found that Marla Mosely was under the assumption that appellant's absence from work on July 16, 1998, was due to appellant moving a trailer in conjunction with the move. It found, however, that appellant testified that she was absent July 16 because she had a flat tire which she could not change due to her back and no one being around to help her. The Commission further noted appellant's testimony that she was, in fact, at work on July 16, 1998, and that she had increasing pain. The Commission found that although appellant testified that she didn't know how serious her injury was, appellant admitted that she worked until July 24, 1998, and that there were times when she was the only aide on her floor. The Commission further noted appellant's testimony that she informed Alissa Long of her injury on July 15, even though Long testified that she was off work on that day and that appellant had informed her that Shannon Mitchell was the charge nurse on July 15.

In addition, the Commission found that there was testimony that occurrence reports could be found on every floor of the hospital, despite appellant's testimony that on July 15, 1998, the charge nurse did not know where the occurrence reports were located. It further noted appellant's testimony that she knew appellee's policy regarding occurrence forms, even though appellant informed Long on July 26 that she did not know that she needed to fill out one. In regard to the medical history, the Commission noted appellant's testimony that the earliest she could get an appointment with Dr. Crawley was July 24, regardless of the fact that Dr. Crawley had an urgent care clinic open seven days a week. The Commission further found that the only reference to the cause of appellant's injury is the history portions of office notes taken by Dr. Crawley and Dr. Tuck. It found that Dr. Crawley and Dr. Tuck merely repeat appellant's account of the circumstances surrounding her injury and that appellant did not mention to her physicians that she was in the process of moving at the time of her injury.

When the Workers' Compensation Commission denies coverage because the claimant failed to meet her burden of proof, the substantial evidence standard of review requires that the appellate court affirm the Commission's decision if its opinion displays a substantial basis for the denial of relief. Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). In determining the sufficiency of the evidence to sustain the findings of the Commission, the evidence is reviewed in the light most favorable to the Commission's findings and the findings are affirmed if they are supported by substantial evidence. Tucker v. Roberts-McNutt, Inc., 69 Ark. App. 150, 12 S.W.3d 640 (2000). Substantial evidence issuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission. Cooper v. Hiland Diary, 69 Ark. App. 200, 11 S.W.3d 5 (2000). There may be substantial evidence to support the Commission's decision even though the appellate court might have reached a different conclusion had it sat as the trier of fact or heard the case de novo. Id.

It is the function of the Workers' Compensation Commission to determine the credibility of the witnesses and the weight to be given their testimony. Hooks v. Gaylord Container Corp., 67 Ark. App. 159, 992 S.W.2d 844 (1999). It is further the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted. Id. When it does so, its findings have the force and effect of a jury verdict. Sapp v. Phelphs Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998).

Appellant contends that Martha Tucker and at least one other witness testified that she injured her back while working with a patient. However, Tucker admitted that on the night she worked with appellant and noticed that appellant pointed to her back, she "wasn't trying to figure out when her back problem had developed." Further, appellant testified that she informed her charge nurse and several of her supervisors about the injury, despite testimony from these individuals that they could not recall any notice of appellant's back problems until after they had received an incident report from appellant on August 3 or thereafter. Evidence showed that appellant continued to work after the injury until her appointment with Dr. Crawley on July 24, 1998, and that Dr. Crawley's medical reports did not reflect any reference to a job-related injury. Despite appellant's testimony that she knew the procedures regarding reporting injuries, appellant could not remember the name of the charge nurse on the night of the incident. Appellant also testified that she did not obtain an incident report from her charge nurse, even though there was evidence that incident forms were on every hospital floor. In addition, the Commission found that although appellant hurt her back, which required surgery, there was a "dearth of evidence in the record to show that this occurred at work, and not while [appellant] was moving her home."

In reviewing the evidence in the light most favorable to the Commission's findings, we cannot say that there is no substantial evidence to support the Commission's finding that appellant failed to prove that her back injury was sustained during her employment with appellee.

Affirmed.

Pittman and Stroud, JJ., agree.