Kim Cannon v. El Chico

ca00-526

DIVISION II

WENDELL L. GRIFFEN, JUDGE

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CA00-526

December 6, 2000

KIM CANNON AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E904258]

EL CHICO AFFIRMED

APPELLEE

Kim Cannon appeals from an order of the Workers' Compensation Commission denying her claim that she received a compensable cervical injury that arose out of and during the course of her employment. She argues that the Commission erred in that regard; that she is entitled to benefits for temporary total disability; and that the computation of her average weekly wage includes the tips she earned during her employment. We affirm the Commission's decision.

Appellant contends that she suffered a compensable injury to her back and neck while she was employed as a bartender by appellee at its Texarkana location. She claims that on February 12, 1999, between 8:30 p.m. and 11:00 p.m., she slipped on ice that had melted on the bare concrete floor behind the bar. Appellant stated that her feet slipped, causing her to fall toward the floor in a jerking motion. She testified that she did not strike the floorbecause she grabbed a keg cooler and bottle rack to break her fall.

Appellant stated that she had no prior injuries or problems with her neck or back. She testified that when the incident occurred, she felt immediate pain in her back and shoulders, largely on the right side. She stated that at first, she thought she had merely pulled a muscle, and did not immediately report the incident. However, appellant testified that she reported the incident to her manager, Ron Quinlan, before she left that evening. She also asserted that she reported the incident to Hope Miciotto, the general manager, the following day, but neither Quinlan nor Miciotto filled out an incident form.

Appellant has not worked since she left appellee's employ. She testified that she experienced back ache and pressure from the time of her injury until the day she was terminated, which was near the end of February or the first of March. She also testified that she experienced back pain, pressure between her shoulder blades, pain in her right arm, and pain and tingling in her right arm and hand between the time of her injury and April 8, 1999, when she first received treatment for her injury from Dr. E. Paul Wright at Back Pain Chiropractic. She received chiropractic manipulations approximately three times per week through May 1999. She also had an MRI performed on April 29, 1999, which indicated a large right paracentral disc protrusion at the C5-C6 level.

Appellant sought temporary total disability benefits from April 8, 1999, to a date yet to be determined, payment of her medical expenses, and attorney's fees. She also asserted that her weekly wage rate for the purposes of calculating her temporary total disability benefits should include the tips she earned during her employment. Appellee controvertedappellant's entitlement to benefits, and a hearing was held before an Administrative Law Judge ("ALJ"), who examined appellant's medical evidence and heard testimony from appellant, her witnesses, and her supervisors.

The ALJ found appellant's testimony at the hearing conflicted with that of her supervisors, as well as the history that she offered to her doctor. In addition, appellant's witnesses provided conflicting versions of how and when the injury occurred. The ALJ also noted that appellant waited two months after the injury and one month after termination to seek treatment. Therefore, the ALJ denied benefits on the basis that appellant failed to prove that she was injured during the course of her employment, and failed to prove a causal connection between the alleged injury and her cervical complications. Because he found appellant was not entitled to benefits, the ALJ did not address the issue of temporary total disability benefits or whether her weekly wage included her tips. The Commission adopted in full the ALJ's findings.

In reviewing a decision of the Worker's 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. See Geo Specialty Chemical v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm the Commission's decision. See Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). Thesubstantial-evidence standard of review requires that we affirm if the Commission's opinion displays a substantial basis for the denial of relief. See Flowers v. Arkansas Hwy. & Transp. Dep't, 62 Ark. App. 108, 968 S.W.2d 660 (1998).

The record shows that the ALJ's decision, as adopted in full by the Commission, adequately explains its conclusion and displays a substantial basis for denial of appellant's claim. Therefore, pursuant to section (a) and (b) of our per curiam In re: Memorandum Opinions, 16 Ark. App. 301, 700 S.W.2d 63 (1985), we issue this memorandum opinion affirming the Commission's decision.

Affirmed.

Pittman and Roaf, JJ., agree.