Excel Specialty Products v. Faye A. Powell

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION II

EXCEL SPECIALTY PRODUCTS

APPELLANT

V.

FAYE A. POWELL

APPELLEE

CA01-42

SEPTEMBER 5, 2001

APPEAL FROM THE WORKER'S COMPENSATION COMMISSION

[NO. E810504]

AFFIRMED

Appellant, Excel Specialty Products, brings this appeal challenging a decision of the Workers' Compensation Commission. The Administrative Law Judge (ALJ) awarded appellee, Faye A. Powell, total disability benefits from August 10, 1998, through August 26, 1998, and from September 8, 1998, to a date yet to be determined, as well as medical treatment for her low back injury. The Workers' Compensation Commission remanded the case for a further determination on the issue of "major cause." In a subsequent opinion, the ALJ found that appellee had met her burden of proof on the major cause issue. The Commission affirmed the findings of the ALJ. Appellant has two points on appeal. First, appellant argues that the Commission's decision that appellee met her burden of proving that she sustained a compensable back injury on August 8, 1998, was not supported by substantial evidence. Second, appellant argues that the Commission's decision that appellee met her burden of proving that a compensable event was the major cause of her current

disability was not supported by substantial evidence. We affirm.

On November 6, 1997, appellee suffered an injury while lifting boxes for appellant. While bending over to lift the boxes, appellee stepped on a loose board, causing her right leg and foot to twist. She felt a pop in her lower back and hip; she could not move for a few moments. After a while, she was able to move, but not without pain in her lower back. The next morning, appellee reported the incident to the plant nurse, filled out a report, and she was placed on a light-duty job. Appellee alleges that on the days following the incident, her level of pain was bearable on some days, but unbearable on others. However, she did not seek medical treatment. Instead, she took the advice of the plant nurse and used a heating pad and Flexeril when needed.

On August 8, 1998, appellee was engaged in lifting unusually heavy boxes weighing sixty to seventy-six pounds. Appellee had to leave work that day because of lower back pain. After managing the pain throughout the weekend with a heating pad and mineral ice, she awoke on Monday with severe pain, unable to get out of bed. She informed appellant of the pain and her inability to go to work.

On August 10, 1998, appellee saw Dr. Suguitan. Dr. Suguitan performed a CT scan, which showed a small central/right paracentral disc protrusion/herniation at L5-S1 and mild disc bulging at L4-5. Dr. Suguitan also noted in his report that appellee's history of back pain began a year ago when she twisted her back. After a short recuperation period, Dr. Suguitan allowed appellee to return to work with restrictions. When the pain persisted, Dr. Suguitan took appellee off work and referred her to Dr. Landherr, a neurosurgeon. Before her appointment with Dr. Landherr, appellee was back in Dr. Suguitan's office with severe back pain. Dr. Landherr's report stated that appellee did not have any surgically treatable problems and returned her to Dr. Suguitan's care. Appellee was also seen by Dr. Standefer and Dr. Short; Dr. Short diagnosed her with degenerative disc disease, lumbago, back pain, and osteoarthritis. On December 30, 1998, Dr. Short admitted appelleefor treatment at HealthSouth Rehabilitation Hospital. She was released on January 9, 1999, with a diagnosis of degenerative joint disease, degenerative disc disease, osteoarthritis, muscle spasms, lumbago, chronic pain syndrome and situational depression.

We affirm the Commission if its decision is supported by substantial evidence; substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). 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, 30 S.W.3d 769 (2000). The question is not whether this court might have reached a different conclusion from the one found by the Commission if we were reviewing the case de novo, or even whether the evidence would have supported a contrary finding. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). If reasonable minds could reach the Commission's conclusion, we must affirm its decision. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996).

First, appellant argues that the Commission's decision that appellee met her burden of proving that she sustained a compensable back injury on August 8, 1998, was not supported by substantial evidence. We disagree. Arkansas Code Annotated section 11-9-102(4)(A)(ii) (Supp. 1999) defines the elements of a gradual-onset injury. It states that "`compensable injury' means an injury causing internal or external physical harm to the body arising out of and in the course of employment that is not caused by a specific incident or is not identifiable by the time and place of occurrence." Gradual-onset injuries specifically include back injuries that are not identifiable by time and place of occurrence or are not caused by a specific incident. Ark. Code Ann. § 11-9-102(4)(A)(ii)(b). A compensable injury must be proven by medical evidence supported by objectivefindings. Ark. Code Ann. § 11-9-102(4)(D). However, the requirement that a compensable injury must be established by medical evidence supported by objective findings applies only to the existence and extent of the injury; it is not essential to establish the causal relationship between the injury and a work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

Testimony by the appellee revealed that she was involved in a work-related incident on November 6, 1997. Following the incident, appellee was experiencing pain in her lower back. She was allowed to perform light duty work for one day, and she returned to her regular duties on the following Monday. Appellee testified that after the November 6, 1997, incident, medication was often necessary to ease the lower back pain. This pattern continued for approximately nine months. Appellee testified that on August 8, 1998, she was engaged in lifting extremely heavy boxes at work. Appellee used her normal medication on Sunday; however, on Monday morning, appellee was unable to get out of bed. Appellant was notified of appellee's condition, and she was seen by Dr. Suguitan. Dr. Suguitan eventually diagnosed appellee with back strain with possible disc protrusion and muscle spasms. Therefore, we find that substantial evidence was present in this case to conclude that a gradual-onset injury existed between November 1997 and September 1998.

Second, appellant argues that the Commission's decision that appellee met her burden of proving that a compensable event was the major cause of her current disability was not supported by substantial evidence. Appellant seems to suggest that appellee must establish the causation requirement by objective medical findings. Although, a gradual-onset injury must be proven to be the "major cause" of the disability or need for treatment, Ark. Code Ann. § 11-9-102(4)(E)(ii), objective medical evidence is not required to prove circumstances under which the injury was sustained or the precise time of the injury's occurrence. Aeroquip, Inc. v. Tilley, 59 Ark. App. 163,954 S.W.2d 305 (1997). The plethora of possible causes for work- related injuries includes many that can be established by common-sense observation and deduction. Wal-Mart Stores, Inc. v. VanWagner, supra.

Evidence showed that appellee's current lower back complaints date back to November 6, 1997. She was not experiencing lower back symptoms prior to the November 6, 1997. Moreover, the evidence showed that appellee experienced an additional injury on August 8, 1998. On January 9, 1999, appellee was given a diagnosis of degenerative joint disease, degenerative disc disease, osteoarthritis, muscle spasms, lumbago, chronic pain syndrome and situational depression. As a result of appellee's lower back pain, appellee's physicians have prescribed continuous diagnostic testing, physical therapy, and pain treatment. It is clear that substantial evidence supports the Commission's finding that the appellee met her burden of proving a gradual-onset injury, and that this injury was the major cause of her current disability.

Affirmed.

Jennings and Crabtree, JJ., agree.