Louis Johnson, Jr. v. SMI Joist Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

LOUIS JOHNSON, JR.

APPELLANT

V.

SMI JOIST COMPANY

APPELLEE

CA 00-891

APRIL 4, 2001

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION, [NO. E811762]

AFFIRMED

Appellant Louis Johnson, Jr., appeals the denial of his claim for medical benefits, temporary total disability benefits, and attorney's fees in an opinion issued by the Workers' Compensation Commission. Appellant's argument on appeal is that there is no substantial evidence to support the Commission's conclusion. We affirm.

When reviewing decisions from the Workers' Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings made by the Commission and uphold those findings if they are supported by substantial evidence. Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 278 (1998). Substantial evidence is that evidence which a reasonable person might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different conclusion than that reached by the Commission or whether the evidence

would have supported a contrary finding. Id. If reasonable minds could reach the results shown by the Commission's decision, we must affirm. Id.

Appellant asserted that he hurt his back while at work in appellee SMI Joist Company's prefabrication department on July 22, 1998. Appellant claimed that while moving plates, he experienced pain and suffered a herniation at L4-5. SMI controverted appellant's claim stating that appellant failed to prove that appellant sustained a new injury on July 22, 1998, and that even if there were objective findings to support the existence of an injury, the statute of limitations had expired to seek benefits because his claim pertains to an old 1992 injury. Though appellant was awarded benefits at the administrative law judge level, SMI appealed, prevailing before the Commission. The Commission found that appellant failed to report a new injury to his employer and that appellant evidently suffered from problems at this location of his back prior to the alleged incident in 1998; therefore, appellant did not carry his burden of proof. Appellant's claim was denied, and this appeal resulted.

Appellant had the burden to prove by a preponderance of the evidence that he was entitled to workers' compensation benefits. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). His burden of proof was to demonstrate that he sustained an accidental injury; that it caused external or internal physical bodily harm; that the injury arose out of and in the course of his employment; and that his injury required medical services. Ark. Code Ann. § 11-9-102(5)(A)(i). A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D). Medical opinions addressingcompensability must be stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102(16).

The evidence adduced by the parties is summarized herein. Appellant, who was born in 1972, worked for SMI beginning on May 18, 1992. Appellant is a high-school graduate and had one year of vocational training. Appellant suffered an admittedly compensable injury to his back while working for SMI in August 1992, herniating a disc at L5-S1. Appellant underwent a laminectomy and a fusion performed by Dr. Alkire and stayed off work for six months following this surgery. During the course of his treatment, a myelogram was performed on March 2, 1993, demonstrating that there was a bulging disc at L4-5. As a result of this 1992 injury, appellant was assessed an impairment rating of eleven percent to the body as a whole on April 6, 1994. Appellant continued to see Dr. Alkire for residual pain, and tests revealed that appellant was suffering from L4-5 nerve-root cutoff on the left side. Appellant received three steroid injections and a prescription for oral pain medication in September 1995. When this treatment did not relieve his pain, Dr. Alkire recommended additional surgery at the L4-5 site; this recommendation was documented on October 13, 1995. Appellant chose to ponder this option and did not undergo the recommended surgery.

Appellant's relationship with his employer during that time was unaffected. Appellant worked light duty after his return to work in 1994 and performed this light duty by running errands and the like until 1997 when he was released from his restrictions. Appellant first acted as a truck driver for about one year, but appellant amassed a poordriving record in that time. SMI removed him from that position, returning him to the plant in the prefabrication department, a lesser paying position than the driving job.

Appellant testified that he had suffered from a work-related injury in 1992, that he underwent surgery, and that he returned to work six months after the surgery in a light-duty capacity and was later released to work regular duty. Appellant did not recall seeing his surgeon for any complaints in 1995 and did not remember discussing additional surgery. Additionally, appellant did not recall complaining of back or leg pain once reassigned to the prefabrication department. It was appellant's position that he had completely healed from his 1992 injury when he was hurt in 1998. However, he testified that the pain he experienced after the alleged 1998 incident was the same as that following his 1992 injury and surgery.

Appellant's testimony also included his version of the events that occurred on July 22, 1998, wherein he stated he was picking up and stacking twelve-by-twelve base plates in the prefabrication department. Appellant stated that his back hurt as he retrieved a stack of plates from a rack and placed them into a barrel some four to five feet away. Appellant said that there was no one else around when this event occurred but that he reported the incident to his immediate supervisor, who did not testify. Appellant stated that he presented to the company doctor, Dr. Downs, within the first week or so after he was hurt, but there was no medical record to substantiate this claim. Appellant discontinued work after this incident and has not worked since.

SMI's shop superintendent testified that appellant did not complain about back pain while driving the truck but that he did complain about every other day about his back once transferred into the prefabrication department. The superintendent also testified that there were no twelve-by-twelve base plates in the plant and that the heaviest object in appellant's area to be lifted would weigh only eight pounds. The employer also presented appellant's personnel file, which contained no report of an injury on the date appellant alleged that the injury happened. The superintendent denied having ever been notified of any injury occurring on July 22, 1998, though it was company policy to record any accidents or injuries.

The medical records subsequent to July 22, 1998, were presented as an exhibit. The first medical consult after that date indicated that appellant presented to Dr. Alkire on August 18, 1998, who ordered an MRI. The results of that MRI revealed a nicely healed first surgery and evidence of a disc bulge at L4-5 on the left. Dr. Alkire recognized in his notes that appellant previously had a small bulge at L4-5 which was present on the current MRI "if not maybe a little bit bigger." Appellant was sent to a neurosurgeon, Dr. Schlesinger, for an independent medical evaluation that was performed on April 22, 1999. Dr. Schlesinger's report indicated that based upon his examination of appellant and appellant's 1998 MRI, which he deemed of poor quality, he "could not really make any clear statement as to whether anything was new or not" but that "there was a suggestion of a left L4-5 disc herniation. I do not know if this was present on the 1992 studies as I have neither the report nor the films." Because appellant reported to Dr. Schlesinger that he was doing well untilthe incident in July 1998, Dr. Schlesinger suspected that he had a new injury "[i]f there is no evidence to indicate otherwise."

The medical records prior to July 22, 1998, demonstrated the existence of the first injury in 1992, the surgery that followed, the impairment rating, and appellant's continued treatment by Dr. Alkire through 1995. The records cease after appellant chose not to go forward with the recommended surgery in 1995 but resume in August 1998.

There was substantial evidence in the record supporting the Commission's decision in this case. While appellant is clearly suffering from a herniated disc at L4-5, this has been in existence at least since when it was documented in 1993 during his earlier treatment. There was substantial evidence to support the conclusion that appellant did not report this alleged new injury to his employer, a conclusion based upon the credibility of the witnesses and the manner in which their testimonies fit with the documentary evidence, which also supported the conclusion that there was not a new but an old injury. Appellant's treating physician, Dr. Alkire, could not support the existence of a new injury because his opinion estimating that the herniation might have been slightly larger was not stated within a reasonable degree of medical certainty. The neurosurgeon, Dr. Schlesinger, offered an even less certain opinion in that he had no comparative films and, in fact, he declined to offer an opinion because he could not state one with certainty. Dr. Schlesinger's opinion of the poor quality of the 1998 MRI further weakens any reliability that could have been attached to Dr. Alkire's opinion on the existence of a new injury. Consequently, the Commission had a substantial basis upon which to deny appellant benefits in this case.

Affirmed.

Bird and Roaf, JJ., agree.