Ricky Goines v. Best Buy, Inc.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION I

RICKY GOINES

APPELLANT

V.

BEST BUY, INC.

APPELLEE

CA 00-590

DECEMBER 13, 2000

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E802038]

AFFIRMED

Appellant Ricky Goines appeals a decision of the Workers' Compensation Commission that denied him compensation for an injury to his right shoulder that he alleged occurred on January 26, 1998, while at work for appellee Best Buy, Incorporated. Appellant sought payment of all reasonable and necessary medical treatment and an attorney's fee. When the claim was heard before the administrative law judge (ALJ), she determined that he had failed to prove by a preponderance of the evidence that he sustained a compensable injury. On appeal to the Commission, it affirmed and adopted the ALJ's decision. This appeal resulted, and we affirm.

When the Commission denies a claim because the claimant failed to meet his burden

of proof, 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. Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000). In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission's findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). 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. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988).

We have often said that the determination of the credibility of the witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission; the Commission is not required to believe the testimony of the claimant or any other witness. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). However, the Commission may not arbitrarily disregard the testimony of any witness. Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998). Even though the Commission is insulated to a certain degree from appellate review, its decisions are not insulated to the degree that it would make appellate review meaningless. Patterson, supra.

With the established standard of review set forth, we examine the facts presented at the hearing. Appellant worked for Best Buy for approximately five years. Appellant deniedhaving any lifting restrictions prior to January 26, 1998. Appellant asserted that he was at work on January 26, 1998, waiting on customers and stocking store shelves with nineteen-inch and twenty-five-inch televisions. When he lifted the last boxed television, which he estimated to weigh more than one hundred pounds, he heard a pop, experienced horrible pain, and could not move his right shoulder. Though he reported this incident to his supervisor, appellant was not permitted to leave for the purpose of seeking medical attention because the store was "short handed." Once additional employees arrived, appellant went on his own to the hospital.

Medical records from the emergency room indicated that appellant suffered from a bruised shoulder, but that the examination was difficult because appellant would not relax his arm and hand enough to perform the examination. The emergency room physician recommended that appellant see a specialist the next day. The specialist, Dr. Bebout, treated appellant, and appellant also received physical therapy. He was eventually seen by general practitioner Dr. Tompkins and was then referred to a surgeon, Dr. Thompson. A much later MRI conducted on April 16, 1999, indicated a high suspicion of a rotator-cuff tear along with degenerative changes. Surgery was recommended to arthroscopically repair his shoulder, but it was not performed due to appellant's inability to finance the operation.

Appellant freely admitted that he was injured in a car accident on November 7, 1993, wherein he suffered a neck injury and a large-muscle injury involving his shoulder. He suffered continuing problems from the car accident involving migraine headaches and right-shoulder pain. Those problems had been treated by physical therapy, steroid injections, anda variety of medications for pain. Appellant admitted to missing work on many occasions because of his pain and headaches. Appellant maintained, though, that this pain in his shoulder was different from that which he experienced with the injury that he suffered at work. Appellant also acknowledged having fallen from a ladder onto a concrete floor while at work for Best Buy in January 1997; he denied that any workers' compensation claim was ever filed, though an accident report was filed. Appellant further admitted that he had experienced quite a bit of conflict with management of Best Buy during his tenure. Appellant was fired on February 9, 1998, and he had since received unemployment benefits and then obtained other employment. He worked for a hotel from October 1998 through July 1999 and, as of the date of the hearing, January 13, 2000, he had worked for Wal-Mart for about three weeks.

Best Buy presented the testimony of its insurance carrier's field investigator, who investigated an earlier claim by appellant that he had hurt himself lifting a television on December 10, 1997, which claim was denied. The investigator took a recorded statement from appellant regarding this claim, in which appellant recounted his car accident and one other fall at work on January 10, 1997, that resulted in shoulder pain. Appellant asserted to the investigator that he did not want to involve his employer in his medical problems, but when the employer started giving him a "hard time" for his shoulder restrictions, he thought it was time to seek benefits because "I know that they hurt my shoulder by making me lift."

The medical records admitted into evidence showed that appellant intermittently sought treatment following the car accident in 1993 through January 2, 1998. The treatmentsincluded steroid injections in the shoulder for pain and treatment for headache, nausea, and vomiting. Appellant was hospitalized for emotional problems in 1996 and for headaches, nausea, and vomiting in May and June of 1997. During his 1997 hospital stays, appellant exhibited emotional problems, bizarre behavior, and drug-seeking behavior. Appellant left the hospital against medical advice during his last stay, stating that he had problems with the person sharing the hospital room with him, but the nurses reported that this was not the case.

Best Buy's assistant manager, Paul Edwards, testified that he heard appellant complain about his shoulders frequently during his work prior to January 26, 1998. Edwards indicated that it would be against the company's policy to lift anything over seventy-five pounds without assistance. To lift any item over that weight limit, employees would use the hydraulic stock picker. He stated that the televisions were not displayed in the box but would have to be out of the box to be on the shelf. Edwards stated that he found it unusual that appellant had complained of an injured shoulder but would often lift more than he should.

Another Best Buy employee, Robert Billings, testified that he saw appellant every day as appellant entered the workplace. Billings verified that appellant frequently complained of having hurt his shoulder but that Billings observed appellant perform activities that were inconsistent with his complaints. Billings also stated that he offered appellant less strenuous work in the store, such as manning the check-out as a cashier or performing work in the security section of the business, but appellant acted indifferent to those offers for the most part.

Best Buy's sales manager, Harlan Brewton, testified that appellant never presented a physician's restriction on his work activities, though appellant repeatedly told Brewton what his restrictions were. Brewton recalled meeting in December 1997 with appellant about absenteeism. Appellant's absences totaled 352 days in five years of employment. Brewton stated that the absenteeism was attributed to "tooth aches, to stomach aches, to migraines, to throwing up, to his shoulder being in a sling, [and] to physical therapy." In the meeting, appellant stated that he had hurt his shoulder at work that month, which resulted in an investigation by the workers' compensation insurance carrier and eventually a denial of benefits.

Brewton testified that appellant told him on the morning of January 26th that he had hurt his shoulder while taking down a television for a customer, not that he was hurt putting a television, which was still in a box, on a display shelf. Brewton stated that he told appellant not to go to the doctor at that time since a workers' compensation claim on his shoulder was pending. The insurance carrier was called, and it would not authorize treatment for the alleged January 26 injury.

The ALJ rendered an opinion denying appellant's claim. She stated that though appellant has what appears to be a rotator-cuff tear in his right shoulder, she could not attribute this injury to the date that appellant reported that this injury occurred, January 26, 1998, in light of the vast history of shoulder complaints and events that appellant experienced prior to that date. Those events included several falls and a couple of lifting episodes, and appellant's continuous complaints of pain, discomfort, inability to lift, locking,and burning and tingling in his right shoulder. Therefore, she was determined that appellant had not proved his claim by a preponderance of the evidence. The Commission affirmed and adopted the ALJ's opinion, and we hold that there is a substantial basis for the denial of relief.

The claimant bears the burden to prove compensability by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). Arkansas Code Annotated section 11-9-102(5) (Supp. 1999) provides in pertinent part:

(A) "Compensable injury" means:

(I) An accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence.

The injury must be proven by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D). Objective findings are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The claimant must also prove that there is a causal connection between the work-related accident and the injury. Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000).

The accidental injury alleged to have occurred at work on January 26th was not witnessed by anyone, and appellant's accounts of the injury varied. His versions ranged from slinging a box containing a twenty-five-inch television onto a top shelf, to taking a nineteen-inch television down for a customer, to lifting a nineteen-inch television from the floor. Further, appellant stated approximately two weeks prior to this date in a recordedstatement that he was very careful about what he lifted at work because of his right-shoulder problems and that he did not lift any televisions other than thirteen-inch ones. Very different testimony was given by appellant at the hearing, where he stated that he was having no physical difficulties prior to January 26th and did not recall having any lifting restrictions at that time. While the ALJ and the Commission did not specifically conclude that appellant was not credible, it is apparent.

The ALJ and the Commission also found that appellant's suspected rotator-cuff injury was unlikely to have occurred on the date specified since appellant had received treatment for ongoing problems with his shoulder since the 1993 car accident. There were various medical records indicating that appellant sought treatment and pain medication because his right shoulder was locking and tightening up, tingling, feeling numb, and hurting. On January 2, 1998, he also asked one of his doctors to place lifting restrictions on him for problems associated with his right shoulder. On the date that he presented to the emergency room after the January 26th incident, appellant exhibited symptoms not associated with a torn rotator cuff, according to the emergency room physician.

Appellant argues in his brief that the ALJ and the Commission erred by overlooking the deposition of his long-time family physician, Dr. Ross, and the medical report of the surgeon, Dr. Thompson, whose opinions lent support to appellant's claim. We disagree. Dr. Ross' opinion supports the medical evidence indicating that appellant was suffering from significant depression and emotional instability during the years prior to 1998, which in turn lent itself to his dependence on pain medication. Though Dr. Ross opined that prior toJanuary 1998, appellant's shoulder symptoms were inconsistent with a torn rotator cuff, he did not verify the existence of a rotator-cuff tear after that date and had no evidence of when, or if, it occurred. Dr. Thompson saw appellant more than a year after January 26, 1998, and he related the injury to the work based upon appellant's history and an April 1999 MRI showing an "[i]ndex of suspicion quite high for partial tear of the distal supraspinatus tendon." The ALJ recognized this medical evidence, for she stated in her opinion that there did appear to be evidence of a torn rotator cuff in the April 1999 MRI. Though she did not specifically reject Dr. Thompson's opinion on causal connection, it is an implicit finding.

It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). The Commission has the duty to use its experience and expertise in translating evidence of medical experts into findings of fact. Id. However, the duty to make findings of fact does not require the Commission to render findings on every conceivable point of contention. Williams v. Prostaff Temporaries, 336 Ark. 510, 988 S.W.2d 1 (1999).

Because the opinion displays a substantial basis for the denial of relief to appellant, we affirm.

Hart and Neal, JJ., agree.