Naomi VanHoozer v. Kroger

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

NAOMI VANHOOZER

APPELLANT

V.

KROGER

APPELLEE

CA04-980

April 13, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F212875]

AFFIRMED

Josephine Linker Hart, Judge

Appellant Naomi VanHoozer appeals from the Arkansas Workers' Compensation Commission's finding that she failed to prove by a preponderance of the evidence that she suffered a compensable injury to her right knee. Specifically, appellant argues that the Commission erred in finding that she failed to prove that she sustained a compensable injury caused by a specific incident or, alternatively, that she failed to prove that she sustained a gradual-onset injury cause by rapid repetitive motion. We affirm.

Medical records from Dr. Robert H. Miller dated August 20, 2002, indicated that appellant had a history of bilateral knee pain, and over the previous three months, the pain had worsened, with the left knee being worse than the right knee. The records further indicated that after a prolonged day of standing at work, her knees severely ached. The doctor concluded that she had "mild medial compartment patellofemoral arthrosis, bilateral knees."

Appellant, who was born on July 8, 1932, worked as a floral designer for appellee Kroger. She stated that her duties there were repetitive and that she was required to work in a rapid manner. On Friday, October 25, 2002, at 12:00 p.m., she was making seven fruit baskets, which required that she fill a cart with fruit, push it to a work area, line up fruit baskets on a counter, take fruit out of the cart, and put it in baskets. Appellant testified that she repetitively turned on her right knee and leg and shifted her weight to her right leg. Appellant had been performing this job for approximately three hours when she felt a sharp pain in her knee as she turned to pick up some fruit while she had her weight on her right leg. Appellant stated that the pain was different from the dull ache of short duration that she had previously experienced in her right knee. After feeling this pain, she finished the fruit baskets and took her lunch break at 4:30 p.m. Appellant told the manager, George Martine, that her knee was "killing" her. She did not, however, tell him what had caused her pain. Martine testified that he did not recall speaking with her on that day, though he did recall that on numerous occasions before that day they had discussed their respective knee pains. After her lunch break, and even though her knee hurt, she returned to her job and worked until 7:00 p.m.

Appellant stated that her knee continued to hurt through the night and that she could not put weight on her leg the next morning. She called Martine and told him that her knee was "bothering" her so badly that she could not walk. Martine testified that, when she called him, she did not tell him that she had twisted her knee at work. Appellant later called her supervisor, Bruce Walker, and told him that she was going to the emergency room. The emergency-room medical and physician's records from her October 26, 2002, visit to the emergency room indicated that appellant had an injury to her right knee that occurred at "home" the day before in the "context" of "prolonged ambulation." The records indicated that she had a right-knee sprain. Following her emergency-room visit, she informed her employer that she could not work Sunday.

Appellant later told her employer that she had an appointment with her family physician, Dr. Trent Pierce. In records dated October 31, 2002, the doctor noted that appellant had a "sprained knee" on "Friday." He gave her a work slip giving her time off until she could keep a scheduled appointment with her orthopedist, Dr. Robert Miller. She gave the work slip to the assistant manager, Gerald Jones.

Dr. Miller's report from November 7, 2002, indicated that appellant had an injury to her right knee and that "on Friday stood in one place at work for about four hours and her knee began hurting medially." The doctor also noted that her knee "also seems to hurt with weather changes." The doctor concluded that she had "possible degenerative medial meniscal tear, right knee" and recommended that she have an MRI performed. A work slip dated November 7, 2002, indicated that appellant would remain off work until after the test. Appellant testified that, following her appointment with Dr. Miller, she provided Martine with the work slip. She returned to Dr. Miller on November 14, 2002, who indicated in his medical reports that the MRI "showed a tear in the lateral meniscus both anteriorly and posteriorly and also some signal changes in the substance of the medial meniscus but no frank tears."

On November 27, 2002, appellant reported a work-related injury by filling out a form. The form indicated that on October 25, 2002, at 3:00 p.m., she was "[s]tanding in one position and turn[ed] back and forward for a long time is when it started to hurting" and that she "turn[ed] back and forward for several hours without stopping." According to a work slip dated December 10, 2002, Dr. Miller allowed her to return to light duty on December 11,2002. The slip provided that she would need a stool to sit on. She testified, however, that she did not return to work because Kroger would not allow her to use a stool.

Appellant obtained the assistance of a Florida attorney, who recommended that she see Dr. James T. Galyon, an orthopedist from Memphis, Tennessee. In a letter dated January 31, 2003, Dr. Galyon wrote that appellant had prepared several fruit baskets on October 25, 2002. He stated that appellant "had her feet set and rotated and twisted behind her to pick up more fruit to work on another basket," and "[w]hen she did, she felt a sudden pain in her right knee." He also noted that on the day of the injury, she "told management personnel about the injury to her knee," and she was advised to "try and to finish the day...." He noted that appellant had "degenerative changes in her knee with involvement of both the medial and lateral meniscus." He concluded that appellant suffered a work-related injury "[w]hen she planted her foot securely and rotated her body to reach around somewhat behind her to pick up her work materials" and "sustained a rotary stress on her knee creating a tear in the previously degenerated menisci." Ultimately, she was released by Dr. Miller to return to work full time on January 8, 2003. While appellant returned to work on January 9, 2003, she testified that her knee continued to give her difficulty.

The compensability of her claim was presented to an administrative law judge (ALJ). He found that appellant failed to prove by a preponderance of the credible evidence that she sustained a compensable injury. Specifically, the ALJ concluded that appellant failed to show either an injury caused by a specific incident or a gradual-onset injury caused by rapid repetitive motion. On appellant's claim that the injury was caused by a specific incident, the ALJ found that appellant's testimony was not credible, noting that she did not timely report an injury to her employer and that her medical history did not corroborate her claim. Further, the ALJ found that appellant failed to prove that she performed tasks in a rapid motion. The Commission affirmed and adopted the ALJ's opinion.

Appellant first argues that she showed that she suffered an injury caused by a specific incident and identifiable by time and place of occurrence. In our worker's compensation statutes, a compensable injury is defined in part as "[a]n 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." Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2003). Further, "[a]n injury is `accidental' only if it is caused by a specific incident and is identifiable by time and place of occurrence." Id. For this type of injury, the employee has the burden of proving a compensable injury by preponderance of the evidence. Ark. Code Ann. § 11-9-102(E)(i) (Supp. 2003).

On appeal, we view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence, and where the Commission denies benefits because the claimant has failed to meet his burden of proof, we affirm if the Commission's decision displays a substantial basis for the denial of relief. Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Id.

As noted above, the ALJ found that appellant's testimony regarding her injury being caused by a specific incident was not credible because appellant failed to timely report the injury to her employer and because appellant's medical history did not corroborate her claim. There was substantial evidence to support the ALJ's finding that appellant did not initially report an injury to her employer despite numerous opportunities to do so, including the day of the injury. Further, her initial medical records do not indicate that she suffered a work-related injury. The emergency room records indicate another cause for the injury, "prolonged ambulation" at "home." Given this evidence, we cannot say that there was not a substantial basis for the denial of relief.

Appellant alternatively argues that she proved she had a compensable injury by showing that her injury was caused by rapid repetitive motion. A compensable injury also includes "[a]n injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is .... [c]aused by rapid repetitive motion." Ark. Code Ann. § 11-9-102(4)(A)(ii)(a) (Supp. 2003). The burden of proof is by a preponderance of the evidence, and "the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment." Ark. Code Ann. § 11-9-102(4)(E)(ii) (Supp. 2003).

In Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998), the Arkansas Supreme Court devised a two-part test to determine whether an injury is caused by rapid and repetitive motion: "(1) the tasks must be repetitive, and (2) the repetitive motion must be rapid." Id. at 350, 969 S.W.2d at 647. Further, the court stated that "[a]s a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Arguably, even repetitive tasks and rapid work, standing alone, do not satisfy the definition. The repetitive tasks must be completed rapidly." Id., 969 S.W.2d at 647-48.

The ALJ, in an opinion adopted by the Commission, found that, while appellant's tasks may have been repetitive, the tasks were not rapid. Appellee testified that she worked rapidly and repetitively, but absent from her testimony are details that would define what she considers rapid. For example, appellant did not present testimony regarding the rate - the proportion of fruit items moved over a discrete period of time - at which she made the seven fruit baskets. Given appellant's failure to present this type of evidence, we cannot conclude that there was not a substantial basis for the denial of relief based on her failure to meet her burden of proof.

Affirmed.

Vaught and Crabtree, JJ., agree.