David Collins v. The Hathaway Group and AIG Claim Services, Inc.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

DAVID COLLINS

APPELLANT

V.

THE HATHAWAY GROUP and

AIG CLAIM SERVICES, INC.

APPELLEES

CA 01-555

NOVEMBER 28, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E 912637]

AFFIRMED

The appellant, David Collins, appeals from an order from the Arkansas Workers' Compensation Commission in which the Commission denied his claim against the appellees, The Hathaway Group and AIG Claim Services, Inc. We find no error, and affirm.

The appellant was employed by appellee, The Hathaway Group, as a maintenance worker for the Summit Terrace and The Timbers apartment complexes. Among his job duties was to carry a pager and respond to tenant calls after normal working hours. On the night of November 2, 1999, appellant received a page reporting a water leak in the apartment of Mr. Richard Garner and Mr. Dustin Weeks at the Summit Terrace apartments. Appellant testified that when he arrived at the apartment, he discovered water coming from a leak in the upstairs apartment. Appellant testified that his master key would not work the lock on the upstairs apartment. Thus, he attempted to climb a ladder and pull himself onto the upstairs balcony and go through the patio door. Appellant testified that while trying to pull

himself over the balcony, he felt a popping in his right shoulder, and was unable to pull himself over the balcony. Mr. Weeks then climbed the balcony, and pulled appellant over by grabbing his pants and left arm. Appellant then was able to shut the water off. Afterwards, appellant returned home. Appellant testified that he told his wife about the balcony incident and injury to his shoulder, and he and his wife went to the emergency room. An MRI performed on November 19, 1999, reflected that appellant suffered torn tendons in his right shoulder.

An Administrative Law Judge ("ALJ") found that appellant failed to prove that he suffered a compensable injury to his shoulder. The ALJ also found that appellant failed to prove that he was willfully discriminated against by appellees for claiming compensation benefits. The Commission affirmed and adopted the ALJ's decision and findings of fact. From the Commission's order, appellant brings this appeal.

When reviewing a decision of the Arkansas Workers' 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. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

Appellant's first point on appeal is that the Commission erred in finding that he failed to prove a compensable injury. The ALJ relied heavily on the testimony of Richard Garner and Dustin Weeks. The ALJ noted that appellant's testimony regarding his injury differed from the testimony of Garner and Weeks, and based on this discrepancy, the ALJ did not find appellant's testimony to be credible. Appellant testified that he attempted to open the upstairs apartment by using his master key, but it did not work. It was appellant's testimony that he injured his shoulder while attempting to pull himself over the balcony. Appellant testified that he heard a popping in his shoulder. Both Garner and Weeks testified that appellant did not have the master key with him on that night. Garner testified that appellant did not indicate to him that he injured his shoulder while attempting to climb onto the balcony. In fact, the ALJ noted that Garner testified that appellant did not mention injuring his shoulder to him at any time. Weeks testified that appellant indicated that he could not pull himself over the balcony because he injured his shoulder two weeks earlier. Weeks testified that appellant did not indicate that he injured his shoulder that night. The ALJ found the testimony of Garner and Weeks as the most persuasive testimony. Appellant submits that Garner's testimony was contradicted by the testimony of Ms. Lisa Leonard, the appellees' manager, and appellant's supervisor. Ms. Leonard testified that Garner, in tellingher what happened, told her that appellant had said on that night that his shoulder had "popped or something" when he was climbing the balcony.

As stated above, it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephen Truck Lines, supra. The Commission relied on the testimony of Mr. Garner and Mr. Weeks, and not upon the testimony of the appellant. The reliance is within their discretion. We acknowledge that Mr. Garner's testimony was contradicted by Lisa Leonard's testimony. However, no contradiction was presented to the testimony of Mr. Weeks. We hold that the Commission did not err in finding that appellant did not prove a compensable injury.

Appellant's second point on appeal is that the Commission erred in finding that he failed to prove that appellee willfully discriminated against him for claiming compensation benefits in violation of Arkansas Code Annotated § 11-9-107 (Repl. 1996). Appellant was terminated by letter dated November 22, 1999, by Lisa Leonard. In addition, Leonard testified that there were several reasons for the termination of appellant. One of the reasons given by Leonard was appellant's failure to show up to work on November 22, 1999. Appellant submits that his third and last doctor's note stated that he was not to work again until after he was seen again by the doctor following the MRI. The MRI was on November 19, 1999, and appellant submits that he had not been seen by his doctor after the MRI at the time of his termination. Ms. Leonard testified that appellant told her he would be back to work after the MRI, and that appellant never showed up nor explained why. That was just one of several reasons for appellant's termination. Leonard testified that several renterscalled back about repairs which claimant had not performed properly. Appellant failed to answer calls after hours. Leonard testified that there were discrepancies in the hours appellant actually worked and the hours claimed on his time card. Leonard had also received several complaints from tenants regarding appellant. The ALJ noted that appellant admitted that there were occasions in which he had not answered after hours calls. Appellant admitted that some of Leonard's reasons for his termination had merit. Appellant also admitted that in September, during a conversation with Leonard, she informed him that if certain problems continued she would have to let the appellant go.

We hold that the Commission did not err in finding that appellees did not willfully discriminate against appellant in his termination. Ms. Leonard provided several legitimate reasons for appellant's dismissal. Appellant simply failed to prove that he was terminated because he filed for workers' compensation benefits.

Affirmed.

Robbins and Neal, JJ., agree.