Brenda McDonald v. Malvern True Value Hardware

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOHN F. STROUD, JR.

DIVISION IV

BRENDA McDONALD

APPELLANT

V.

MALVERN TRUE VALUE

HARDWARE

APPELLEE

CA 00-534

November 22, 2000

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [E900406]

AFFIRMED

Brenda McDonald appeals a decision of the Workers' Compensation Commission denying her claim for a back injury and reversing an administrative law judge's finding that the injury was compensable. Her employer, Malvern True Value Hardware, had controverted the claim in its entirety, contending that there was not timely notice of the injury and that appellant did not sustain a work-related injury. In her sole point for reversal, she contends that the Commission's opinion "is not based upon substantial evidence." We affirm the Commission.

At the hearing before the administrative law judge, appellant testified that in her four years with the hardware store and in her previous years at a lumber supply company, she had never been hurt and had not filed a claim. She stated that while working at the store soon after lunch on October 16, 1998, she felt something pull in her back when she squatted down and started to lift a tote full of merchandise. She described the tote as a hard plastic bin, measuring approximately two feet by eighteen inches by twelve inches. She stated that after feeling the pull, she put the tote down, massaged her back a bit, and said that it hurt. She further testified that she went to the window where Clyde Kingery, the store's owner, was busy with paperwork, and she told him that she thought she had pulled a muscle in her back. She testified that Kingery just said, "Okay," and kept doing his paperwork. She said that she had some men carry the tote for her, and that she did not attempt to lift another one that day because, although her back "didn't feel real bad," it did hurt.

Appellant testified that she worked the rest of the day, and that she did not ask for claim forms, ask about workers' compensation, or seek medical attention. She testified that she continued to work in the days following the injury, her back "kind of hurt" and was "kind of sore," but she thought that she had just pulled a muscle and did not consider it to be "really a big deal at all." In November, her back was about the same, and she just felt like she was getting old. After the injury, she did not really do the same duties that she had performed before, Kingery and other men helped her lift totes, and Tina and Ruthie helped her carry them. Other employees knew that her back was hurting although she did not specifically tell them about it on the day of her injury. On about December 27, or right after Christmas, she woke up with terrible pain in her right leg, and she could hardly move. She was supposed to

open the store that morning because Kingery was out of town; she did so and she worked, with her leg hurting all day. Had Kingery been in town she would not have gone in because her leg was "killing" her and she could hardly walk. When Kingery returned to town the next day or the one after that, her leg had "pains just running down." She told him that her leg was hurting badly and that she could hardly walk. Barbara Scott helped her get out of the car, but Kingery told her to go home and get off of her leg, and to see a doctor about it. Appellant did not tell him that the injury was work-related because at that time she had no idea that her leg had anything to do with her back.

Appellant testified that she generally did not see doctors unless absolutely necessary because she had no insurance and no money, and she had kids to raise. Because nothing was helping, she finally went to Dr. Brashears, her family doctor for dozens of years, on January 4, 1999. She did not tell him that she had an on-the-job injury because she did not relate her leg pain to her back. Pain medication Dr. Brashears gave her did not help, and she was referred to Dr. Dickens. She was put to bed for a week and informed that an MRI would be necessary because she probably had a disc problem. She telephoned Kingery to tell him that her leg problem was a work-related injury and that a workmen's compensation claim would have to be filed. She testified that Kingery said it would make his rates go up, but he also said "that was something he would just have to do."

Appellant stated that later that day, while in severe pain and on a lot of medication, appellant gave a telephone statement to Georgia Beuscher from Specialty Risk services. Appellant later signed a document the insurance company mailed her for release of medicalrecords, and she contacted her doctor's office when the records were not released. Because she could not get out of bed, her daughter went to the doctor's office and picked up other papers that needed appellant's signature; the records were released after appellant signed them. After not hearing from the insurance company, she called Georgia, who told her that the claim would be denied because her injuries were felt to have been caused by an automobile wreck in May of 1997. Appellant told Georgia that the injuries in the wreck involved an eye and collarbone, not her back. Appellant later called Kingery to tell him of the insurance denial. She did not recall his response, but she testified that they never discussed the issue of whether she had told him about the injury at the time it occurred.

Medical records from 1999 show that Dr. Dickens performed lumbar back surgery on appellant on February 8, that she went back to restricted duty May 4, and that she went back to work full time June 13. Records from 1997 show that she received stitches to her face and treatment for a fractured right clavicle after an automobile wreck; follow-up notes refer to pain in the right chest, ribs, and shoulder. The records show no history of back trouble before January 1999.

Clyde Kingery testified that appellant did not report an injury in October 1998. He also testified, however, that she "may have reported it, but I didn't treat it as a work-related injury that was as sufficient as it's developed into. But, to be honest with you, I don't recall the conversation." He stated that appellant seemed to perform her regular duties while continuing to work in October, November, and December of 1998; that she did not mention anything about a work-related injury during that time, and that even in late December she didnot regard her leg problems as a work-related injury. The first time he learned of her claim for workers' compensation was January 8, 1999, the date on which appellant telephoned him. He stated that he called Georgia Beuscher, that she gave him a list of questions that needed answering, that he called appellant to get the information, and that he had no idea at that time as to what the date of injury was.

Kingery described appellant as "definitely" a good employee. He testified that if she had reported an injury to him on October 16, he would have called the insurance company at that time, just as he had felt it his responsibility to do when he first learned of her injury on January 8. He stated that he did not recall appellant's coming to the window on October 16 and saying anything. He conceded that he would not have expected her to file a workers' compensation claim for just a simple pulled muscle. He testified that he had listened to her testimony and did not believe it to be untruthful. He stated that he did not recall "one way or the other" that appellant told him on October 16 about a pulled muscle in her back, and that he did not recall telling her on January 8 that filing the claim would make his rates go up. The Commission observed in its opinion that Dr. Breshears' office notes refer to appellant's reluctance to have an MRI performed due to lack of insurance, and that a first reference to her workers' compensation claim appears sixteen days later; it contrasts appellant's statement that she reported the injury to Kingery in October with his failure to report it to his carrier at that time and with his prompt reporting in January when she notified him her injury was work-related; it notes her ability to work for two months without "any subsequent problems"; it points out the absence of co-workers to testify at the hearing; andit refers to appellant's failure to tell Dr. Breshears that her injury was work-related even after Kingery told her to get medical attention in December. The Commission denied appellant's claim on the following basis:

When you consider the evidence that the claimant failed to report an injury, continued to work for over two months and she only raised the issue of a work-related injury for the first time after she was faced with the need to undergo an MRI she could not afford for lack of insurance, the evidence preponderates in favor of finding that the claimant failed to prove that she sustained a compensable injury on October 16, 1996.

Appellant contends that she has met her burden of proof under Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996),1 which requires her to prove that her injury was a result of a specific incident identifiable by time and place of occurrence. She argues that the Commission's conclusion is not relevant to this burden of proof. She contends that the decision is unclear in stating exactly why she failed to sustain her burden of proof, but that the Commission seemingly disagreed with the law judge's determination that her testimony was more credible than that of Kingery. She argues that this court is not bound to accept decisions based on the Commission's illogical interpretation of the record or the Commission's determinations of credibility when they are contrary to the law judge, who viewed the demeanor of the witnesses, and when the Commission fails to give reasons for disapproving the law judge's credibility determinations.

We have recognized that it is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted oruncontroverted, and that when it does so, its findings have the force and effect of a jury verdict. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000).

We think that, here, the Commission's decision indeed turns on the credibility and interpretation of the testimony of appellant and Clyde Kingery. Deferring to the Commission on credibility determinations, as we must, we find that there is substantial evidence to support the Commission's finding that appellant failed to prove that she sustained a compensable injury on October 16, 1998.

Affirmed.

Jennings and Bird, JJ., agree.

1 This subsection is now Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp 1999).