James E. Phillips v. Matrix Service Company and Zurich Insurance Company

ca05-772

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-772

March 1, 2006

JAMES E. PHILLIPS AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [F213028]

V.

MATRIX SERVICE COMPANY and

ZURICH INSURANCE COMPANY

APPELLEES AFFIRMED

Wendell L. Griffen, Judge

James Phillips appeals from a decision from the Workers' Compensation Commission, which denied him benefits. He argues that the Commission erred in finding that he did not sustain a compensable back injury while acting in the course and scope of his employment. He further argues that the Commission erred in excluding medical records that his counsel received the day before the hearing. We affirm.

A hearing was held before the Administrative Law Judge (ALJ) on August 28, 2003, regarding the compensability of an injury to appellant's lower back. Prior to the hearing, appellees objected to the admission of medical records that it received the day before the hearing. The records, which were not included in appellant's brief but are part of the record as proffered exhibits, were an August 4, 2003, chart note from Dr. Kurt Voos; an August 15, 2003, letter from Dr. Voos; and a work slip. The letter indicated that surgery had been recommended and that it would be scheduled at the completion of the workers' compensation hearing. Appellees objected to these records because they had not received them in a timely manner, and the ALJ excluded the records from consideration, stating that the records were not timely provided. The ALJ offered appellant a continuance, but appellant declined.

Appellant, a resident of Dover, North Carolina, testified that he had been welding since he was sixteen. He stated that he was employed by appellee and working for Lion Oil Company in Columbia County on September 24, 2002, when the accident occurred. He described the accident as follows:

I was welding on the floor that day, and I don't know what time it was, but anyway, I came out to get some welding rods, I believe. Anyway, I come out in the hole and stood up - I come through the hole going to go get welding rods and when you're in motion you keep kindly going. Well, it's like my feet caught something. I just don't remember. It's like I told everybody, "I really and truly don't know exactly what happened, but it's like you're going in the motion to go. You're already up and going and I just fell." I landed on my shoulder and my rib cage was hit and everything.

Appellant stated that, when he struck the ground, his "whole right side," his shoulder, his hip, and his buttocks hit the ground. He reported the fall to his foreman, Bobby Dawes, who took him to the emergency room in Magnolia. The nursing assessment from the emergency room states:

Tripped & fell while coming out of tank. Fell on right shoulder. c/o pain in Rt. ribs, shoulder. Hurts to straighten arm out. Good pulse, arm warm, color good. Hurts to take a deep breath. No bruising noted.

Dr. Frank Edwards recorded the following patient history:

This is a 53-year old white male who states that he works at Matrix Services Inc. And that he was climbing out of a tank when he stumbled and fell on his right side. He states he initially had some right upper arm pain, but this has resolved. He thinks he may have just hit his funny bone, but he tells me that his right side is hurting him, especially if he takes a deep breath. He denies any other injuries. He is not having any shortness of breath. He has not had any hemoptysis.

The medical note stated that appellant's back was "nontender." Dr. Edwards took x-rays, gave appellant pain medication, and assigned him to light duty work. Appellant rested and returned to work the next day for what he believed to be light duty work; however, he testified that he did the same work he did the previous day. Appellant stated that the following weekend, he took Aleve and ate. The following Monday morning at 9:30, he stated that his lower back started hurting and that he thought the problem was with his kidneys. Appellant presented to nurse practitioner Kay May, who removed appellant from work. Appellant returned to North Carolina, where Dr. Voos provided him with physical therapy, lumbar injections, medication, steroids, and a discogram.

Appellant also testified about a previous injury from an automobile accident in 1972. He testified that he hurt his ear, arm, and leg, ruptured his diaphragm, and had a collapsed lung. He stated that he had not received any treatment to his back since then and that he did not experience that type of pain in his back when he hurt it in 1972. On cross-examination, he noted that he was diagnosed with degenerative disc disease when he had the accident. He also noted that his left leg was three-fourths of an inch shorter than his right leg but that it had not caused him any lower back problems.

The ALJ found that appellant did not sustain a compensable low-back injury on September 24, 2002. She noted that the medical records did not support his testimony that he hurt his buttocks and hip, that appellant returned to work and worked two of three days, and that appellant's description of the pain he felt the following Monday did not relate to the fall the previous Tuesday. Further, she did not find appellant's description of the fall credible. Appellant appealed to the Full Commission, which affirmed and adopted the opinion of the ALJ. An appeal to this court followed.

The standard of review for appeals from the Commission is well established:

In appeals involving claims for workers' compensation, our court views the evidence in a light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence. Hapney v. Rheem Manufacturing Co., 341 Ark. 548, 26 S.W.3d 771 (2000); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. MinnesotaMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). Where the Commission denies a claim because of the claimant's failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm the Commission's decision if its opinion displays a substantial basis for the denial of relief. Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000); Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992).

Wallace v. West Fraser South, Inc., ___ Ark. ___, ___, ___ S.W.3d ___, ___ (Jan. 26, 2006); see also Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). Normally, this court only reviews the findings of the Commission and not those of the ALJ. Logan County v. McDonald, ___ Ark. App. ___, ___ S.W.3d ___ (Apr. 6, 2005). However, when the Commission adopts the conclusions of the ALJ, as it is authorized to do, this court considers both the decision of the Commission and the decision of the ALJ. Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003).

Appellant argues that reasonable minds could not come to the conclusion that he did not suffer a lower back injury while acting in the course and scope of his employment on September 24, 2002. He contends that all of the evidence supports his testimony that he fell on his back and suffered a compensable injury.

To receive workers' compensation benefits for a specific-incident injury, a claimant must establish (1) that the injury arose out of and in the course of the employment, (2) that the injury caused internal or external harm to the body that required medical services, (3) medical evidence supported by objective findings establishing the injury, and (4) that the injury was caused by a specific incident and identifiable by the time and place of the occurrence. Ark. Code Ann. § 11-9-102(4) (Supp. 2005). Compensation must be denied if the claimant fails to prove any one of these requirements by a preponderance of the evidence. Ark. Code Ann. § 11-9-402(4)(E); Mikel v. Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). While section 11-9-102(4) requires proof of a specific incident identifiable by time and place of occurrence, the statute does not require the claimant to identify the precise time and date upon which the injury occurred. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). However, the claimant's injury must be attributable to a particular, specific incident. Hapney v. Rheem Mfg. Co., 342 Ark. 11, 26 S.W.3d 777 (2000).

The Commission's decision is supported by substantial evidence. Appellant's argument, in essence, is that the Commission should have found his testimony to be credible. However, it is well settled that the credibility of witnesses is a matter completely within the province of the Commission. Wallace v. West Fraser South, Inc., supra (citing Ester v. National Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998); Benton Serv. Ctr. v. Pinegar, 269 Ark. 768, 601 S.W.2d 227 (Ark. App. 1980)). The Commission is not bound to accept the testimony of any witness, even if uncontradicted. Id. (citing Ester v. National Home Ctrs., Inc., supra). Further, we are bound by the Commission's determination on issues of credibility. Id. (citing Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001); Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998)). The Commission found no medical record relating to any injury to appellant's lower back, and appellant fails to identify any record that identifies an injury to anywhere other than his shoulder or ribs. Appellant testified that he told his medical-care providers about his injured back; however, that testimony by itself is insufficient to reverse the Commission's decision when there is substantial evidence supporting that decision. Appellant may have presented a case where a reasonable person could conclude that he suffered a compensable injury; however, the Commission's decision to deny benefits is supported by substantial evidence.

Next, appellant argues that the Commission abused its discretion by excluding Dr. Voos's medical records. Appellant contends that the rule requiring medical records to be provided at least seven days prior to the hearing allows for the admission of records if the failure to timely present the records was not due to any mistake by the claimant's attorney. Arkansas Code Annotated section 11-9-705(c)(2)(A) (Repl. 2002) states:

Any party proposing to introduce medical reports or testimony of physicians at the hearing of a controverted claim shall, as a condition precedent to the right to do so, furnish to the opposing party and to the commission copies of the written reports of the physicians of their findings and opinions at least seven (7) days prior to the date of the hearing. However, if no written reports are available to a party, then the party shall, in lieu of furnishing the report, notify in writing the opposing party and the commission of the name and address of the physicians proposed to be used as witnesses at least seven (7) days prior to the hearing and the substance of their anticipated testimony.

A person failing to comply with the seven-day rule may not be allowed to introduce the untimely presented records at the hearing, except in the discretion of the ALJ or the Commission. Ark. Code Ann. § 11-9-705(c)(3). The Commission has broad discretion with reference to the admission of evidence, and that decision will not be reversed absent an abuse of that discretion. Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 (2001).

Appellant's only argument for reversal of the decision to exclude the last-minute records is that excluding the records violates an exception to the seven-day requirement. Contrary to appellant's interpretation of the statute, however, no such exception exists. The statute provides a strict deadline and states that any evidence not given to the opposing party by that deadline will only be admitted at the discretion of the ALJ.

Further, the ALJ did not abuse said discretion. While appellant gave his attorney the records the day before the hearing, appellant presented to Dr. Voos thirteen days before the hearing. That left six days to retrieve the medical records from Dr. Voos, send those records to counsel (via overnight mail, fax, or another expedient method), and have counsel provide those records to opposing counsel.

Affirmed.

Vaught and Baker, JJ., agree.