Cite as 2012 Ark. App. 238
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA11-958
FREDâS STORES OF TENNESSEE,
INC.; INDEMNITY INSURANCE
COMPANY OF NORTH AMERICA;
and SEDGWICK CLAIMS
MANAGEMENT
APPELLANTS
Opinion Delivered
April 4, 2012
APPEAL FROM THE ARKANSAS
WORKERSâ COMPENSATION
COMMISSION
[NO. G001787]
V.
MELVIN ELY
APPELLEE
AFFIRMED ON DIRECT APPEAL;
AFFIRMED ON CROSS-APPEAL
RAYMOND R. ABRAMSON, Judge
The Arkansas Workersâ Compensation Commission found that appellee Melvin Ely
proved he sustained a compensable injury to his right hip and awarded resulting medical
treatment, temporary-total disability benefits from February 26, 2010, through March 22,
2010, and temporary-partial disability benefits beginning March 23, 2010, to a date yet to be
determined. The Commission denied his claim that he sustained a compensable back injury.
Appellants raise the following points on appeal: (1) the Commission committed reversible
error by considering irrelevant and cumulative evidence that Ely untimely submitted after the
ALJâs opinion had been issued; and (2) the finding that Ely sustained a compensable injury to
his right hip is not supported by substantial evidence. Ely cross-appeals, arguing that
substantial evidence does not support the Commissionâs finding that he failed to prove he
sustained a compensable back injury. We affirm on both direct appeal and cross-appeal.
Cite as 2012 Ark. App. 238
Melvin Ely, who was fifty-five years old at the time of the hearing before the ALJ,
worked at Fredâs in Dumas beginning in 2008. He was a co-manager, and his duties included
handling overnight receiving. On February 25, 2010, he was in the stock room lifting a pallet
jack when he allegedly injured his back, hips, and pelvis.
Ely was taken by ambulance to Delta Memorial Hospital. A radiology report indicates
that there was no evidence of acute fracture or dislocation of the pelvic bones; there was firstdegree spondylolisthesis at L5/S1; and a hernia mesh was noted in the right inguinal area and
in the suprapubic area. The nursing record indicates tenderness in the suprapubic scrotum
area and notes that Ely denied having any back pain.
Ely then treated with Dr. Lester Alexander on March 1, 2010. The report from that
visit indicates that Ely was experiencing acute, intermittent pain. He told the doctor that he
was experiencing ânumbness of both lower extremities, pain in his lumbar spine, both legs
get numb while . . . lying down, pain radiates to suprapubic area and down both medial thighs
to knees.â Dr. Alexander wrote Ely an âoff workâ slip covering March 1 through March 8.
On a follow-up visit on March 8, Ely still reported having pain in his lower back radiating
down both legs. Dr. Alexander assessed lumbar strain and bilateral lower extremity strains,
kept Ely off work for another week, ordered physical therapy, and scheduled a follow-up visit
for March 15. The March 15 visit revealed no changes, and an MRI of the lumbar spine was
ordered. The MRI revealed no evidence of acute disc herniation or canal stenosis; it did
show bilateral spondylolysis at L5 with spondylolisthesis of L5 on S1, and mild degenerative
disc changes at L4-L5 and L5-S1 levels.
2
Cite as 2012 Ark. App. 238
Ely received treatment at the VA. In April, an MRI of the right hip was done. It
showed minimal degenerative changes.
A June 2, 2010 radiology report notes 1)
â[q]uestionable anterolateral right acetabular labral tear. This could be more definitively
assessed with an MRI arthrogram of the right hip using high resolution imagesâ and 2)
â[b]ilateral small hydroceles.â
A hearing was held before the ALJ on November 19, 2010. Testifying were appellee,
co-worker Rhea Edmiston, and store manager Sherita Salter. Ely testified that he had a
degree in radio and television broadcasting. Before going to work for Fredâs, he worked at
Wal-Mart from 1999 to 2003 as assistant manager in charge of overnight receiving; before
that, he worked in the automotive industry from 1990 to 1996. He described a car accident
in March 2009 in which he injured his foot and had to wear a boot.
He described his job with Fredâs as making sure the back room was ready for the truck
and getting the merchandise out on the floor quickly. According to company policy, trucks
had to be emptied and the stock out on the floor within twenty-four hours. He described the
accident and stated that he was subsequently terminated when he accidentally took one of his
wifeâs Darvocet pills instead of one of his prescriptions. When he went to the VA on the
previous Monday, another MRI was ordered because they thought there was a tear.
Ely testified that since the accident he had not gone back to work for Fredâs (due to
his termination for the Darvocet), but he had done some consulting work for a radio station
in Pine Bluff, earning $600 to $800.
3
Cite as 2012 Ark. App. 238
Rhea Edmiston testified that she was not a witness to the accident, but that Ely had
been limping for âquite a whileâ before it occurred. Sherita Salter testified that she was
present on the day of the accident. She stated that before the accident Ely had sometimes
complained about pain in his back and legs.
The ALJ determined that Ely failed to prove he sustained any compensable injury as
alleged, and in an opinion dated February 15, 2011, denied benefits accordingly. On
February 18, 2011, Ely filed a motion to reconsider and to submit new evidence. He sought
to introduce into the record a December 21, 2010 MRI of his hip and asked the ALJ to
reconsider her ruling. The motion was denied in a letter dated March 18, 2011.
On August 8, 2011, the Commission issued an opinion affirming in part and reversing
in part the ALJâs decision. The Commission affirmed the denial of benefits for Elyâs alleged
back injury, but reversed the ALJâs finding regarding the right hip injury.1 In a detailed
opinion, the Commission set out the medical history and testimony. The Commission noted
that a December 21, 2010 MRI was not part of the record before the ALJ. That MRI of the
right hip showed â[a]pparent small osteochondral fragment off of the anterolateral acetabulum
with attached labrum only minimally displaced.â The Commission found that Ely had
established a âcompensable injury to his right hip by medical evidence supported by objective
findings, namely, the small acetabular linear tear shown by diagnostic testing on June 2,
1
Commissioner McKinney wrote separately, concurring in the denial of benefits for
Elyâs back and dissenting as to the finding that he proved he sustained a compensable injury
to his hip. Commissioner Hood also wrote separately, concurring as to the finding that Ely
sustained a compensable hip injury and dissenting as to the finding that he failed to prove a
compensable back injury.
4
Cite as 2012 Ark. App. 238
2010.â The Commission went on to find that the December 21, 2010 MRI should be
admitted into evidence. The Commission awarded medical treatment for the right hip,
temporary-total disability benefits from February 26, 2010, through March 22, 2010, and
temporary-partial disability benefits beginning March 23, 2010, to a date yet to be
determined.
Appellants appealed the award, and Ely cross-appealed the denial of benefits for his
back.
I. Direct Appeal
There are two issues on direct appeal: (1) whether the Commission erred in admitting
the new MRI, and (2) whether substantial evidence supports the finding that Ely sustained
a compensable injury to his right hip.2
Appellants cite workersâ compensation statutes that generally provide that all evidence
is to be submitted at the time of the initial hearing and only the record developed at the
hearing is to be considered. Ark. Code Ann. §§ 11-9-704(c), 11-9-705(c)(1). The following
are prerequisites for the admission of newly discovered evidence: (1) the newly discovered
evidence must be relevant; (2) it must not be cumulative; (3) it must change the result; and
(4) the party seeking to introduce the evidence must be diligent. See Quinn v. Webb Wheel,
2
We note that appellantsâ brief cites an unpublished opinion from this court from
2006. Unpublished decisions issued before July 1, 2009, may not be cited, quoted, or
referred to in arguments, briefs, or other materials presented to any court. See Ark. Sup. Ct.
R. 5-2(c) (2011). Additionally, appellants cite opinions of the Commission, which have no
precedential value and are not binding on this court. Taylor v. Pfeiffer Plumbing & Heating
Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983).
5
Cite as 2012 Ark. App. 238
52 Ark. App. 208, 212, 915 S.W.2d 740, 742 (1996). The Commission should be liberal,
rather than stringent, about the admission of evidence. Steak House v. Weigel, 101 Ark. App.
81, 84, 270 S.W.3d 365, 367 (2007). This court reviews evidentiary rulings by the
Commission for abuse of discretion. See id.
Here, appellants have cited no authority for their contention that the Commission
committed reversible error in admitting the new MRI. Undoubtedly, the MRI was relevant.
Whether the claimant was diligent in obtaining relevant evidence is the Commissionâs
province to determine, and we do not find an abuse of discretion on this record. As for
appellantsâ contention that the new MRI was cumulative, we disagree. It showed something
that the previous MRI had notâan osteochondral fragment off of the anterolateral
acetabulum. In sum, we find no abuse of discretion in the admission of the MRI in this case.
As for the sufficiency of the evidence, appellants make weight and credibility
arguments that this court routinely rejects. They point to evidence of pain and a limp prior
to the incident, degenerative changes, and an alleged lack of credibility. They ignore the June
MRI that the Commission cites as objective medical evidence of injury.
On appellate review, we view the evidence in the light most favorable to the findings
of the Commission and give the testimony its strongest probative force in favor of the action
of the Commission. Ellison v. Therma Tru, 71 Ark. App. 410, 417, 30 S.W.3d 769, 773
(2000). We do not reverse a decision of the Commission unless we are convinced that
fair-minded persons with the same facts before them could not have arrived at the conclusion
reached. Id. Under the substantial evidence standard of review, we affirm.
6
Cite as 2012 Ark. App. 238
II. Cross-Appeal
Ely asserts that the Commissionâs decision that he failed to prove that he sustained a
compensable injury to his back is not supported by substantial evidence. He essentially argues
that his muscle spasms are objective medical findings and that there is no other explanation
for this condition arising soon after the accident. However, the Commission specifically
found that Dr. Alexanderâs March 1 prescription for Flexeril âas needed for muscle spasmâ
was not an objective medical finding establishing a compensable injury to Elyâs back. While
muscle spasms can constitute objective medical findings to support compensability, Estridge
v. Waste Mgmt., 343 Ark. 276, 280, 33 S.W.3d 167, 170 (2000), the Commission found that
there was a lack of objective finding in this particular case that Ely was suffering from muscle
spasms in his back following the February 25, 2010 accident. Considering that there was no
objective evidence of a back injury in Dr. Alexanderâs records, along with the fact that Ely
also suffered an injury to his hip,3 we find that the Commissionâs opinion displays a substantial
basis for denying Elyâs claim that he sustained a compensable injury to his back. Therefore,
we affirm.
Affirmed on direct appeal; affirmed on cross-appeal.
3
The prescription does not indicate whether the muscle spasm for which the
medication was prescribed was in Elyâs back or his hip. Cf. Fredâs, Inc. v. Jefferson, 361 Ark.
258, 264â65, 206 S.W.3d 238, 243 (2005) (finding âa reasonable inference from the
chronology of events is that the medication and physical therapy were prescribed to aid
Jefferson and to treat her injuryâ).
7
Cite as 2012 Ark. App. 238
GRUBER and MARTIN, JJ., agree.
8
