Robert L. Dison, Jr. v. Therral Story Well Service

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-239

November 9, 2005

ROBERT L. DISON JR.

APPELLANT

v.

THERRAL STORY WELL SERVICE

APPELLEE

APPEAL FROM THE ARKANSAS ARKANSAS WORKERS' COMPENSATION COMMISSION

[NOS. F310830 & F310831]

AFFIRMED

Andree Layton Roaf, Judge

Appellant Robert L. Dison, Jr., claimed that on July 7, 2003, he injured his back while picking up a piece of pipe on the work site. The Worker's Compensation Commission adopted the opinion of the Administrative law judge, finding that appellant did not prove by a preponderance of the evidence that he sustained an injury as a result of a specific incident identifiable by time and place of occurrence as required by Arkansas Worker's Compensation law and denying appellant benefits. Appellant asserts that fair-minded persons could not have reached the decision of the Commission and brought notice of appeal in a timely manner. I would affirm.

Appellant, Robert Dison, was employed by appellee as a derrick hand. The duties of the derrick hand vary from day to day, but appellant testified that his job mostly entailed lifting pipe. The appellant testified that on July 7, 2003, while attempting to pick up pipe two feet above his head, he felt a pull in his back. The pipe appellant usually picked up averaged around two and 7/8 to two and 3/8 inches and twenty-eight to thirty-two feet long. Appellant informed his supervisor, Raymond Buford about the injury, but continued to work, thinking that he had simply pulled a muscle.

Appellant opted to take Tylenol rather than see a physician and continued to work for three weeks. Midmorning on July 24, 2003, appellant informed Mr. Buford that he could no longer work because of his back pain. Mr. Buford notified his supervisor, Richard Barnes the "tool pusher." Mr. Barnes called John White to come and get appellant. Appellant testified that he had felt another burn in his back that morning, but that he could not pinpoint any particular moment on either date as the moment when his back problems began.

Appellant got in his truck and went straight to the emergency room. In the emergency room, Dr. Edwards took some X-rays of appellant's back. The X-rays were unremarkable, and the doctor diagnosed appellant with muscle spasms. The hospital report states that appellant gave a three-week history of experiencing lower back pain and that appellant indicated that he lifted heavy equipment at work. Appellant also advised hospital personnel that he was unsure of exactly how he hurt his back. Appellant eventually went to see a chiropractor, Dr. Butler. Dr. Butler performed another X-ray and placed appellant on heat and stretching treatments for a possible herniated disc. Dr. Butler suggested that appellant get an MRI. The MRI showed that appellant had a bulging disc. Appellant then went to see Dr. Antoon, who treated the plaintiff conservatively.

Raymond Buford testified that on July 24, appellant did indicate that his back was hurting and he needed to stop working. Mr. Buford also testified that appellant did not mention that his back problems were related to his employment duties. Richard Barnes also testified that appellant told him that his back problems were related to an old injury. Appellant testified that he had been in an automobile accident in 1998, but that he did not seek medical treatment for his injuries.

The Worker's Compensation Commission adopted the opinion of the Administrative law judge, finding that appellant did not prove by a preponderance of the evidence that he sustained an injury as a result of a specific incident identifiable by time and place of occurrence as required by Arkansas Worker's Compensation law and denying appellant benefits.

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. AsplundhTree 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 this court might have reached a different result from that reached by the Commission 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). The Workers' Compensation Commission is not required to believe any witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Pina v. Wal-Mart Stores, Inc., ---S.W. 3d--- (Ark. App. May 11, 2005).

In order to prove a compensable injury under the Arkansas Worker's Compensation law, appellant must satisfy the following requirements: (1) that the injury arose out of and in the course of employment, A.C.A. §§11-9-102(4)(A)(i) and 11-9-102(4)(E)(i)(Cumm. Supp. 1997); (2) that the injury caused internal or external physical harm which requires medical services, A.C.A. §11-9-102(4)(A)(i)(Cumm. Supp. 1997); (3) that the medical evidence is supported by objective findings, A.C.A. §11-9-102(4)(D)(Cumm. Supp. 1997); and (4) that the injury was caused by a specific incident and is identifiable by time and place of correspondence. See A.C.A. §§11-9-102(4)(A)(i)(Cumm. Supp. 1997).

The Administrative Law Judge and the Worker's Compensation Commission agreed that appellant failed to prove by a preponderance of the evidence that his injury was caused by a specific incident identifiable by time and place of occurrence. Appellant contends that he presented uncontroverted testimony as to when and how he received his injury. Appellees, however, presented their own witnesses whose testimony could be construed to controvert that of appellant's. Appellant also erroneously contends that the appellate court can review the findings of the commission de novo. The appellate court does not review worker's compensation cases de novo, and gives due deference to the trial court's determinations of witness credibility.

In this case, appellant's own testimony established that he did not sustain a specific injury. He admitted that he could not pinpoint his back pain to one exact incident of lifting pipe, but that it must have occurred from lifting pipe over and over. Also, the medical records indicate that appellant did not tell his physicians of any specific occurrence. In addition, Raymond Buford testified that appellant did not report any back injury on July 7; and Richard Barnes testified that on appellant's last day of work, appellant simply stated that his back pain was due to an old injury and did not mention any work-related incidents. The Commission also took into consideration that appellant had previously been in an automobile accident and is a convicted felon. Although the appellant's testimony does tend to show that he may have sustained a work-related injury, the Commission's findings are still supported by substantial evidence.

This court does not review findings of the Workers' Compensation Commission de novo, and gives due deference to the credibility determinations of the Commission. The Commission had no obligation to accept appellant's testimony. Other facts and pertinent testimony provide substantial evidence and support for the Commission's findings. Even if this court does not agree with the outcome, we must affirm.