Barry White v. Baker Engineering and American Interstate Insurance Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

BARRY WHITE

APPELLANT

V.

BAKER ENGINEERING and AMERICAN INTERSTATE INSURANCE COMPANY

APPELLEES

CA04-585

March 23, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F100938]

AFFIRMED

Robert J. Gladwin, Judge

Appellant Barry White, was employed by appellee Baker Engineering as a meter reader when he had a motor vehicle accident on January 16, 2001. At the emergency room, doctors diagnosed appellant with a cervical strain and closed-head injury, and appellant was released. Appellee initially accepted appellant's injuries as compensable and paid temporary total disability benefits from January 17, 2001, until March 13, 2001. The administrative law judge (ALJ) found that appellant had failed to prove he was entitled to additional compensation for temporary disability, permanent physical impairment, and wage loss. The Workers' Compensation Commission affirmed and adopted the ALJ's opinion. On appeal to this court, appellant argues that he is entitled to additional benefits resulting from his injury and that the Commission's decision was not supported by substantial evidence. We affirm.

After appellant was released at the emergency room following his accident, he saw Dr. Timothy Killough because he was still experiencing headaches and pain in his neck and

back. Dr. Killough referred him to Dr. Terry Green, an orthopedic surgeon, who obtained MRIs of appellant's lumbar and cervical spine on February 21, 2001. Although the radiologist's report was not available at that time, Dr. Green reviewed the MRIs and opined that they were normal. In his report dated March 7, 2001, Dr. Green diagnosed cervical and lumbar sprain. Appellant was also seen by Dr. Peggy Brown. In her neurology consultation report dated March 13, 2001, Dr. Brown's impression was that there were no neurological deficits. Appellant saw Dr. Patrick Chan, who ordered more MRIs of appellant's cervical and thoracic spine on April 16, 2001. Dr. Chan's impression was that the MRIs showed a minimal disc bulge at C6-7 and a mild herniated disc at T7-8. In his radiology report on the additional MRIs, Dr. Mark White noted that there was no significant disc herniation. In an emergency-room report dated July 2, 2001, Dr. Randy Maddox's assessment was "herniated disc by history by MRI with herniated disc in the cervical spine and thoracic spine." Appellant then saw Dr. Larey Six, a chiropractor, and in a report dated August 5, 2002, Dr. Six, relying in part on the presence of muscle spasms, assigned a ten-percent permanent physical impairment rating to appellant's body as a whole.

At a hearing before the ALJ, appellant testified that he had an automobile accident in 1990 or 1991 in which he sustained a whiplash injury and had another automobile accident subsequent to his work-related injury. Appellant testified that, following the January 2001 accident, he sought treatment from his family doctor, Dr. Killough, who referred him to Dr. Green. He stated that Dr. Green performed an MRI shortly after the accident. Appellant testified that he saw Dr. Chan for a second opinion. He stated that he saw Dr. Six because he was experiencing numbness in his fingers, stiffness in his neck, and muscle spasms. According to appellant, he had never gotten any serious relief from his pain. Appellant testified that he had been unable to work through December 7, 2001, as a result of his work-related injury and further stated that he had been instructed by his doctor not to work during that time. It was brought to light on cross-examination that appellant had been to "rehab" since January 2001 for his cocaine habit. He testified that he is still a cocaine addict but does not use it everyday and insisted that he was not under the influence of anything on the date of his work-related accident.

Kari White, appellant's wife, testified that she took appellant to the hospital on January 16, 2001, following the accident and that she took him home after he was released. She stated that appellant did not recognize her at the scene of the accident, was delusional, and did not know where he was. She said that he acted erratic, irrational, and incoherent and that he pushed her and their child. Mrs. White testified that appellant was a productive member of their family before the accident and that she was able to go to school and be a stay-at-home mother for their six children. She stated that she did not know whether cocaine had anything to do with appellant's abusive behavior but that appellant was not the same person after the accident.

In the ALJ's opinion, which was affirmed and adopted by the Commission, the ALJ noted at the outset that appellant had admitted to being a cocaine addict; had admitted drinking at least thirty beers per week; was discharged from the Navy for marijuana use; had a misdemeanor conviction for possession of drug paraphernalia; and had felony convictions for domestic abuse. The Commission apparently agreed with the ALJ's assessment that "this evidence raises serious questions about the claimant's credibility and that the weight of his testimony and statements are entitled to receive is drastically diminished." The Commission noted that, although Dr. Six had assigned a ten-percent impairment rating, based in part on his observation of muscle spasms, the medical reports of Dr. Green and Dr. Brown were not consistent with Dr. Six's opinion. The Commission found that the reports of Dr. Green and Dr. Brown indicated that their examinations and tests did not reveal an objective basis for appellant's complaints.

Appellant argues that the doctors whose opinions the Commission relied on did not have the benefit of the results of an MRI performed on April 16, 2001. Appellant contends that Dr. Chan's diagnosis of a herniated disc and a disc bulge was confirmed by Dr. Maddox. Appellant urges that the diagnosis by Dr. Chan did not contradict the other doctors' opinions because they did not consider the April 16 MRI in their reports. Appellant remarks that Dr. Green noted that the thoracic spine x-ray he relied on was not good quality. According to appellant, the Commission completely ignored the April 16 MRI results in evaluating whether any objective findings existed.

When reviewing a decision of the Workers' Compensation Commission on appeal, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if those findings are supported by substantial evidence. Beeson v. Landcoast, 43 Ark. App. 132, 862 S.W.2d 846 (1993). In making our review, we recognize that the Commission has the duty of weighing medical evidence as it does any other evidence, and if the evidence is conflicting, the resolution of the conflict is a question of fact for the Commission. Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989). 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 Const., 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. Marshall v. Madison County, 81 Ark. App. 57, 98 S.W.3d 452 (2003).

As a preliminary matter, we do not share the apparent view of the ALJ and Commission that the fact that one has a drug addiction necessarily renders him unworthy of belief. However, we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. See Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). The Commission determined that appellant's testimony, and that of his wife's, was entitled to little weight and further found that the medical records did not support appellant's contention that he was unable to work or was in his healing period beyond the time appellee paid benefits. Considering our standard of review, we agree and affirm on that point. Regarding permanent physical impairment, the Commission chose to give greater weight to the opinions of appellant's initial treating physicians, Dr. Green and Dr. Brown. We conclude that it was reasonable for the Commission to rely on those medical reports and opinions that were formed contemporaneously with appellant's injury, and we therefore affirm on that point as well.

Affirmed.

Pittman, C.J., and Vaught, J., agree.