Barbara A. Miller v. Georgia-Pacific Plywood and Second Injury Fund

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-577

March 2, 2005

BARBARA A. MILLER APPEAL FROM THE WORKERS'

APPELLANT COMPENSATION COMMISSION

NO. F009221/E021923

V.

GEORGIA-PACIFIC PLYWOOD

SECOND INJURY FUND

APPELLEES AFFIRMED

Andree Layton Roaf, Judge

Barbara Miller appeals from the Workers' Compensation Commission's decision denying her claim for benefits. Miller asserted that she suffered a compensable back injury on May 10, 1998, and that she was entitled to additional wage-loss disability benefits. Both the Administrative Law Judge and the Commission disagreed. Miller's points on appeal are (1) whether the Commission erred when it held that Miller failed to prove by a preponderance of the evidence that she sustained a compensable low-back injury on May 10, 1998; (2) whether the Commission erred when it found that Miller failed to prove by a preponderance of the evidence that she was entitled to additional wage-loss disability; (3) whether the major cause of Miller's disability or need for treatment is the 1990 or 1998 injury; (4) whether the Second Injury Fund is responsible for benefits; and (5) whether Miller is entitled to attorney's fees. We affirm.

Barbara Miller applied for workers' compensation benefits on August 12, 2000, for an injury she alleged occurred on May 10, 1998. Georgia-Pacific asserted that no such injury occurred and denied benefits. The Second Injury Fund also argued that Miller had not sustained an injury in 1998, and that any current conditions were the result of the 1990 incident, for which she was currently receiving compensation. A hearing was held on the matter, and the parties stipulated that an employee/employer relationship existed at all relevant times; that Miller sustained a compensable low back injury in 1990; that a permanent impairment rating of twenty-one percent to the whole body was assigned; and that, if the Commission found that Miller was entitled to compensation for the new 1998 injury, Miller would be entitled to a higher maximum compensation rate for 1998.

At the hearing, Miller testified that she had been employed at Georgia-Pacific since September 14, 1988. She was hurt on the job in 1990 and remained on leave until 1992. On May 10, 1998, Miller was working as "plugger." She stated that her supervisor, Franklin McElwaney, instructed her to leave her plugging machine and report to the "green end" to pull wood. Miller explained to McElwaney that, due to her previous back injury, she was unable to pull wood. After being unable to locate any work limitations in Miller's file, McElwaney insisted that Miller report to the "green end." McElwaney testified that he was unaware that Miller had a previous back injury or that she was to perform restricted work duties.

Miller stated that the job duties for the "green end" were more difficult than her duties as a plugger. She further testified that, when she began taking wood from the conveyor belt at the "green end," her back "popped" and began hurting. Miller said that she reported her injury, but continued to work. She stated that, when her shift ended at 3:30 p.m., she went to the emergency room. Throughout the hearing, Miller maintained that she was injured on May 10, 1998. On cross-examination, though, Miller admitted that the form she completed regarding the 1998 incident indicated that the date of the injury was August 13, 1998. Miller asserted that the date was a mistake; that she remembered hurting her back on May 10, 1998, because it was Mother's Day; and that her last day working was June 13, 1998. In a pre-hearing deposition, Miller also suggested that the date of her injury was June 13 and June 16, 1998.

McElwaney admitted that Miller had reported that her back hurt on the day he moved her to the "green end," and that he did not complete an accident report at that time. McElwaney stated, however, that he did not complete a report because Miller indicated that her backache stemmed from an "old injury" that occurred prior to his employment at that facility. Because Miller did not report a new injury, McElwaney did not complete a form.

Jon McQuilkin, safety supervisor at the Crossett plywood plant, testified that Georgia-Pacific has a policy regarding reporting injuries. Injuries are first reported to the employee's supervisor, who, in turn, completes a report. These reports are always completed, according to McQuilkin, for specific accidents and obvious injuries, for example injuries involving swelling or another apparent injury. On the other hand, McQuilkin admitted that it would be possible for an employee to sustain an injury that did not involve obvious signs like swelling or bleeding, and an accident report not be completed. McQuilkin stated that Miller's file does not reflect that an accident report was filed regarding the May 10, 1998 incident and that he never learned that Miller had been injured on May 10, 1998. Miller conceded that she did not file an incident report on May 10, 1998, but admitted that, on May 28, 1998, she got a splinter in her right palm and immediately filed a claim form.

Both McElwaney and McQuilkin also testified that they had observed Miller outside of work following her alleged injury. Both men's testimony indicated that Miller's outside activities were not consistent with her allegation that she had been injured. McElwaney testified that he observed Miller standing outside of the post office near the curb talking to a gentleman. He said that, although Miller was not "bouncing" off the curb, she was "stepping here and then stepping [there]." Also, McQuilkin observed Miller leaving the Ashley County Hospital some time after her alleged injury. He stated that Miller's appearance was different from the way she appeared at the hearing that day. Apparently when McQuilkin saw her, Miller was moving without trouble and walking "normal." She then bent down from the waist to pick up a cigarette lighter, and then continued walking without difficulty.

Miller was diagnosed with a prolapsed lumbar disc, and had two back surgeries, in July 1999 and August 2000, and reached maximum medical improvement on March 5, 2001. At the hearing, Miller stated that due to her injury, she is unable to perform day-to-day activities such as, cleaning her home, washing laundry, working in her yard, and preparing meals. She also stated that, except for attending appointments and checking her mail, she does not leave the house regularly. Miller also testified that she is currently receiving social security disability income, payments from her Georgia-Pacific retirement plan, and temporary total disability payments from her 1990 injury. Miller further stated that she received workers' compensation benefits from June 13, 1998 to August 2002, in the form of temporary total disability and payment for medical bills. When these payments stopped, Miller filed this action.

Miller was seen by Dr. Yeshwant P. Reddy, who performed an independent medical evaluation and suggested that a functional capacity test be performed. Anthony Brown performed the functional capacity exam and concluded that Miller could work at the "No Classification Physical demand level for an 8-hour day." He noted that Miller demonstrated symptom exaggeration and put forth poor effort, and a true evaluation of Miller's functional capacity could not be made. Chelle Williams, Miller's vocation case manager, testified that, based on Dr. Reddy's letter indicating that Miller could work in the light physical demand category and Miller's education and work history, she began compiling a list of suitable jobs for her. Williams stated that she sent Miller a letter listing jobs available to Miller considering her background and limitations. Williams was unaware until the day of the hearing whether Miller had received the letter. During her testimony, Miller admitted that she had received the letter, but had not actively sought employment since she left work in June 1998.

The Commission found that Miller had failed to prove by a preponderance of the evidence that she sustained a compensable injury, or that she was entitled to wage-loss benefits over and above the five percent she receives for her 1990 injury in 1998. It is from this order that Miller appeals.

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. Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003). Substantial evidence is such relevant evidence which reasonable minds might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal 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. Id. The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Id. The Commission also has the duty of weighing the medical evidence as it does any other evidence. Id. On review, we recognize the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001).

Miller first argues that the Commission erred in holding that she failed to prove that she sustained a compensable injury in 1998. The Commission found that Miller had not demonstrated that she sustained an injury resulting from an accident, and that the evidence showed that Miller had sustained a back injury in 1990 and alleged the same type of back pain following her alleged 1998 injury, that she sustained several work-related and non-work related injuries between 1992 and 1998, and that Miller never reported the 1998 injury, although two weeks later she reported a splinter in her palm. The Commission further noted that Miller reported inconsistent dates of her injury and that her credibility was rendered suspect by the contradictions in the evidence.

We have frequently recognized that it is the function of the Commission, and not of this court, to determine credibility of witnesses and the weight to be given their testimony. Strickland v. Primex Technologies, 82 Ark. App. 570, 120 S.W.3d 166 (2003). Questions of weight and credibility are, instead, within the sole province of the Workers' Compensation Commission, which is not required to believe the testimony of the claimant or of any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id.; Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). In light of the conflicting testimony offered to support Miller's allegation that she sustained a compensable injury on May 10, 1998, and the testimony presented demonstrating that Miller's actions were inconsistent with her allegation, we find that it was within the Commission's province to disbelieve her testimony. Moreover, we find that substantial evidence supports the Commission's decision that Miller failed to prove by a preponderance of the evidence that she sustained a compensable injury in 1998, and affirm the Commission's denial of her claim.

For her second point on appeal, Miller argues that the Commission erred when it found that she failed to prove by a preponderance of the evidence that she was entitled to additional wage-loss disability. Miller contends that she is now totally disabled and unable to work. She further contends that her herniated disc and two surgeries were a result of the 1998 injury, that her disability rate was incorrectly based upon 1990 earnings rather than 1998, and that she consequently was underpaid. It is well settled that a worker who sustains an injury to the body as a whole may be entitled to wage loss disability in addition to his anatomical loss. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). In determining additional wage loss disability the Commission may take into consideration the workers age, education, work experience, medical evidence and other maters reasonably expected to affect the worker's future earning power. Id. Other factors include motivation to return to work, post-injury earnings, credibility, demeanor, and a multiplicity of factors. Curry, supra; Guess, supra. A worker may be entitled to additional wage loss disability even though his wages remain the same or increase after the injury. Guess, supra.

We find that substantial evidence supports the Commission's decision regarding Miller's entitlement to additional wage loss benefits. First, we have affirmed the Commission's finding that there was no additional injury in 1998 upon which to base the increase in earnings. Moreover, the evidence shows that Miller did not put forth effort on her functional-capacity test. Anthony Brown's report showed that Miller exaggerated her symptoms and failed to exert full effort during most of the test. Although Chelle Williams had complied a list of potential employers, Miller failed to contact any of them and admitted that she had not been actively seeking employment. Her failure to contact any of the prospective employers shows a lack of motivation to return to work, one of the factors the Commission may consider when deciding whether to award wage loss benefits. Miller has high school and some college education. She has worked in the nursing field and can now work with limitations. Williams testified that based on Miller's educational background, there would be more jobs available to Miller should she choose to work. Miller, however, admitted that she had not sought any employment since she left Georgia-Pacific in June of 1998. In view of those facts, we find that Miller did not meet her burden of proof and affirm the Commission's decision.

Finally, Miller argues that, because the second injury in 1998 required surgery and the 1990 injury did not, the 1998 injury is the major cause of her disability and her compensation should be based on her earnings at the time of the 1998 injury. She also argues that, to the extent that she has a combined impairment greater than that caused by the 1990 injury, the Second Injury Fund is responsible for her benefits.

Additionally, Miller argues that she is entitled to attorney's fees because Georgia-Pacific is controverting her entitlement to permanent and total disability and the amount of temporary total disability. However, because we affirm the Commission's ruling that Miller did not suffer a new compensable injury in 1998, these issues are moot.

Affirmed.

Robbins and Griffen, JJ., agree.