Lisa Estabrook v. Pilot Knob Cedar Works and Crockett Adjustment

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

LISA ESTABROOK

APPELLANT

V.

PILOT KNOB CEDAR WORKS and CROCKETT ADJUSTMENT

APPELLEES

CA05-714

February 8, 2006

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F204091]

AFFIRMED

Larry D. Vaught, Judge

This appeal follows the decision of the Workers' Compensation Committee affirming the opinion of the Administrative Law Judge (ALJ) who found that appellant Lisa Estabrook failed to prove she was entitled to workers' compensation benefits. She argues on appeal that the Commission erred: (1) in finding that her claim for a September 2000 hernia was barred by the statute of limitations; (2) in finding that she failed to prove by a preponderance of the evidence that she sustained a compensable hernia injury in September 2000;1 (3) in finding that she failed to prove by a preponderance of the evidence that she sustained a compensable hernia injury in November 2001; and (4) in finding that she failed to prove by a preponderance of the evidence that her wrist and shoulder injuries arose out of or in the course of her employment. We find no error and affirm.

At a hearing conducted by the ALJ on May 5, 2004, Estabrook testified that she suffered her first incisional hernia in September 2000. She stated that she had experienced a stomach aneurysm earlier that year requiring surgery and that after the aneurysm, she returned to work on light duty. She testified that light-duty work did not require her to work at the same pace as regular duty but that she still had to pick up wood weighing between twenty and twenty-five pounds. She claimed, however, that she was soon required to lift heavy wood-seventy to eighty pounds-in order to do her job. She stated that she first felt the hernia while she was lifting wood for her employer, appellee Pilot Knob Cedar Works. She described it as a "pull" in her stomach with a "very sharp and severe pain." She asserted that she reported this incident to Mark Starnes immediately. However, she admitted that she finished her shift that day. She testified that she saw her doctor shortly thereafter, although she was unsure of the date. She testified that she had to have surgery to repair the hernia and that she was off work for approximately two months. She stated that when she returned to work, she was on light duty.

She testified that she experienced a second hernia in November 2001 while lifting heavy wood. She could not point to a specific day that this hernia occurred but stated that it affected the same general area as the first and was accompanied by sharp and severe pain. However, she could not indicate a specific act that spurred the hernia. She noted that she was on light-duty work at the time and was mostly working in the office. She stated that she reported it to Starnes and that she was able to finish her shift. In fact, she testified that she worked every day between the day of the hernia and her surgery to repair it. She stated that she contacted her doctor two days after the incident and that she had surgery to repair it several weeks later in January 2002. She stated that she was off work for approximately two months after the surgery and then returned to work on light duty.

She also testified that in April 2002 she was working for appellee when she noticed her hands hurting. She stated that she had been working on cutting small pieces of wood to make various items. She asserted that she informed her supervisor, Tommy Hargitt, that her hands were hurting and that she later saw a doctor regarding the problem. Her medical reports indicate that her doctor recommended a nerve conduction study, and its findings revealed she suffered from bilateral carpal tunnel syndrome. Although she testified that she noticed the pain in the spring of 2002, she stated on cross examination that she first experienced the pain in 1998, 1999, or 2000, but that she was "not good at remembering dates." On cross, Estabrook admitted that she did not tell her doctor that her first hernia was work related. She also admitted that she did not fill out any workers' compensation paperwork with regard to either hernia. She stated that she did not return to work for appellee after April 2002.

Mark Starnes testified that he was plant manager for appellee until August 2002. He stated that he had no recollection of Estabrook complaining of stomach pain in September 2000 or January 2001. He testified that had she done so, he would have had her fill out a report for workers' compensation. He stated that he was aware she had hernias in 2000 and 2001 but that Estabrook never informed him that either was related to work. He stated that he filled out workers' compensation forms in April 2002 for an injury to her left wrist that she allegedly suffered on April 4, 2002. He stated that Estabrook did not tell him anything about her right arm or shoulders. Starnes stated that at that time, Estabrook was on light-duty work, which required her to work in the office and clean.

Tommy Hargitt also testified at the hearing and stated that he worked for appellee from 1996 until the present and that he became the plant manager after Starnes left the company. Hargitt stated that he was Estabrook's supervisor both when she was on regular duty and light duty. He stated that when she was on regular duty, she had to do whatever was needed-chop wood, run sawing equipment, or operate a nail gun. However, he maintained that the heaviest wood Estabrook would have to pick up, even on full duty, was twenty pounds and that most of the wood she picked up was about four to six pounds. He stated that when she was on light duty, she ran a drill machine, chopped wood, and wrapped bundles. He stated that the heaviest wood she was required to lift while on light duty was fifteen to twenty pounds. He testified that she worked in the office mostly while she was on light duty. He also testified that Estabrook never reported either of her hernias to him as work related.

Dottie Bourassa stated that she was the office manager for appellee and testified regarding what was in the files concerning Estabrook's work attendance. Bourassa testified that Estabrook returned to light-duty work on July 17, 2000, following her aneurysm surgery and remained on light duty until February 23, 2001. Bourassa noted that there were no workers' compensation reports in Estabrook's file regarding either hernia. Bourassa testified that from November 1, 2001, through February 11, 2002, Estabrook did not work. After returning to work in February 2002, she was on light duty. Bourassa stated that Estabrook returned to full duty on March 27, 2002, and on April 4, 2002, she reported a hand injury.

On appeal, we must determine whether the Commission erred in finding that Estabrook's claim for a hernia she suffered in September 2000 was barred by the statute of limitations; whether the Commission erred in finding that she failed to prove by a preponderance of the evidence that she sustained a compensable hernia injury in November of 2001; and whether the Commission erred in finding that she failed to prove by a preponderance of the evidence that her wrist and shoulder injuries arose out of or in the course of her employment.

In workers' compensation cases, we 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. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. Id. If reasonable minds could reach the conclusion of the Commission, its decision must be affirmed. Id. We do not undertake a de novo review of the evidence and are limited by the standard of review in workers' compensation cases. Id. We also recognize that it is the Commission's duty to weigh the medical evidence as it does any other evidence and resolve any conflicts among that evidence. Teague v. C & J Chem. Co., 55 Ark. App. 335, 935 S.W.2d 605 (1996).

Whether the Commission erred in finding Estabrook's September 2000 hernia claim was barred by the statute of limitations

Arkansas Code Annotated section 11-9-702(a)(1) (Repl. 2002) states that claims for disability compensation on account of injury, other than for occupational disease or infection, are required to be filed within two years of the date of the compensable injury or those claims are barred. Estabrook's first workers' compensation filing was made in April 2002 with reference to hand injuries. Testimony presented at the hearing supports this contention. Appellee argues that the first workers' compensation mention with regard to either hernia was in a pre-hearing questionnaire Estabrook filled out and filed November 27, 2002, more than two years after the date of the supposed injury.2 Estabrook attempts to argue that, because she had a hearing before the ALJ, she had to have filed a claim for the hernia because one cannot exist without the other. This conclusion is incorrect. Her hearing before the ALJ was in regard to the hand injuries that she had reported in April 2002, not the hernias. Because substantial evidence supported the Commission's decision that Estabrook's September 2000 hernia claim was barred by the statute of limitations, we affirm on this point.

II. Whether the Commission erred in finding that Estabrook failed to prove by a preponderance of the evidence that she sustained a compensable hernia injury in November 2001

In order to qualify for workers' compensation benefits, a claimant must suffer an injury that qualifies as a "compensable injury" as defined by Ark. Code Ann. § 11-9-102(4)(A) (Supp. 2005). Section 11-9-102(4)(A)(i) defines "compensable injury" as "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." For the injury to have occurred during the course of employment, it must have occurred "while [the employee] is carrying out the employer's purpose or advancing the employer's interests directly or indirectly." Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 38, 13 S.W.3d 916, 919 (2000). A hernia qualifies as a compensable injury if it meets the requirements of Ark. Code Ann. § 11-9-523 (Repl. 2002), which provides:

(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the Worker's Compensation Commission:

(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;

(2) That there was severe pain in the hernial region;

(3) That the pain caused the employee to cease work immediately;

(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter; and

(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.

The Commission based its decision regarding Estabrook's November 2001 hernia on medical records that indicated that she was diagnosed with a second hernia no later than May 1, 2001, and that her doctor began to repair this hernia in late May 2001. Medical records also indicated that she was scheduled for surgery to repair the second hernia as early as October 29, 2001. After our review of the record, it appears Estabrook actually had surgery to repair the second hernia on November 1, 2001. It is the province of the Commission to weigh the evidence and make determinations of credibility. The Commission could have easily found it was inconsistent to conclude that Estabrook could have suffered a second hernia sometime in November 2001 based on the medical records and testimony presented at the hearing. Therefore, we are satisfied that substantial evidence supports the Commission's finding that Estabrook's November hernia was not compensable.

III. Whether the Commission erred in finding that Estabrook failed to prove by a preponderance of the evidence that her wrist and shoulder injuries arose out of or in the course of her employment

A claimant seeking to recover benefits for a gradual onset injury must prove by a preponderance of the evidence that the injury arose out of and in the course of her employment, that the injury caused internal or external physical harm to the body that required medical services, and that the injury was a major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(A)(ii) (Supp. 2005). Medical evidence must be supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2005).

The Commission based its decision to deny Estabrook benefits with regard to her shoulder injury on the fact that she did not provide medical evidence supported by objective findings. Appellee notes that she was never diagnosed with a shoulder injury and no medical records exist with regard to any shoulder injury. After a careful review of the record, we conclude that there was substantial evidence to support the Commission's decision.

With regard to the wrist injuries, the Commission noted that Estabrook had been diagnosed with bilateral carpel tunnel syndrome; however, it denied benefits because she failed to prove that those injuries arose out of and in the course of her employment. The Commission based its decision on the fact that Estabrook was only working sporadically between her surgery to repair her second hernia and the date she complained of the wrist injuries, with the majority of this time relegated to light-duty work. Testimony at the hearing supports that Estabrook was on light-duty work from July 17, 2000, until February 23, 2001, following her first hernia surgery. Estabrook herself admitted that she mostly worked in the office when she was on light-duty, and there is no evidence to support that any duties she had in the office were rapid or repetitive. Following her second hernia surgery in November 2001, she was off work until February 11, 2002. When she returned to work, she was on light duty until she returned to regular duty on March 27, 2002. It was only a couple of weeks later that she reported her wrist injuries. Based on that evidence, we hold that the Commission's decision not to award benefits to Estabrook for her wrist injuries was supported by substantial evidence that those injuries did not arise out of and in the course of her employment.

Because we conclude that the Commission did not err in finding that Estabrook's claim for a hernia she suffered in September 2000 was barred by the statute of limitations; in finding that she failed to prove by a preponderance of the evidence that she sustained a compensable hernia injury in November of 2001; and in finding that she failed to prove bya preponderance of the evidence that her wrist and shoulder injuries arose out of or in the course of her employment, we affirm.

Affirmed.

Griffen and Baker, JJ., agree.

1 Although Estabrook argues this point, we note that neither the ALJ opinion nor the Commission's opinion adopting the ALJ decision addresses the compensability of her September 2000 hernia. Rather, the Commission found that Estabrook was barred from relief on that point because she failed to file her claim within the time period established by the statute of limitations. Because the Commission did not specifically find that she did not prove by a preponderance that her September 2000 hernia was compensable, we do not address that issue.

2 We note that Estabrook does not include her medical or employment records in the addendum of her brief; however, appellee includes many of the necessary documents in the supplemental addendum portion of its brief.