Jerry Miller v. Randall Ford et al.

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA01-664

DECEMBER 12, 2001

JERRY MILLER

APPELLANT AN APPEAL FROM THE ARKANSAS

v. WORKERS' COMPENSATION

COMMISSION [E908654]

RANDALL FORD

RISK MANAGEMENT RESOURCES

SECOND INJURY FUND

APPELLEE(S)

AFFIRMED

Appellant, Jerry Miller, appeals from a decision of the Workers' Compensation Commission denying his claim for workers' compensation benefits against his employer, appellee, Randall Ford. The Commission found that he failed to establish a compensable injury by medical evidence supported by objective findings. On appeal, appellant argues the Commission's finding is not supported by substantial evidence. We affirm.

Appellant worked for appellee as an auto technician. On July 21, 1999, while emptying an oil bucket, appellant slipped and fell, injuring his back. Appellee sent him to see Dr. Robert Tietelbaum. Dr. Tietelbaum diagnosed appellant as suffering from lower back pain and referred him to Dr. Robert Thompson, an orthopedic surgeon. Dr. Thompsonordered an MRI, and this test revealed the site of a prior laminotomy at left L4-5 and scarring around the L5 root. Dr. Thompson opined that appellant's condition was the result of "a rapid stretch of the neural tissue from the scar attached to it and not causally related to a true recurrent disc inasmuch as it would probably be pressing on the root if that was the case." Dr. Thompson found that appellant had a reflex response of +1 on the left side and +2 on the right side. He also found that appellant had "objective neurological changes in the lower left extremity." Appellant was also seen by Dr. J. Michael Standefer, a neurosurgeon. Dr. Standefer ordered a myelography and post-myelogram CT scanning, and the results of those tests were normal. Dr. Standefer diagnosed appellant as suffering from "lumbar strain post lumbar disc surgery," with no evidence of disc herniation.

Appellee controverted appellant's claim for workers' compensation benefits. Appellee argued there was no medical evidence supported by objective findings, to support a compensable injury. A hearing was held July 11, 2000. At the hearing, appellant admitted this was not his first back injury. He testified that he first injured his back twelve years ago, when he slipped and fell off a ladder while working. That fall ruptured two discs in his lower back, and appellant underwent a laminectomy to repair the damage. Appellant further testified that the 1999 fall reinjured his back.

The Administrative Law Judge (ALJ) found that appellant failed to prove he suffered a compensable injury to his lower back or lumbar spine. The ALJ specifically found that appellant failed to establish a physical injury with medical evidence supported by objective findings. The Commission affirmed and adopted the decision of the ALJ. Appellant nowbrings this appeal.

In workers' compensation cases, the employee has the burden of proving a compensable injury. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). On appeal, this court will view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Foxx v. Am. Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). When the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Hill, supra. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Hill, supra. The issue 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 its decision. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).

Appellant argues on appeal that the Commission's finding was not supported by substantial evidence. Appellant specifically argues that the Commission dismissed the objective physical findings of Dr. Thompson and instead gave Dr. Tietelbaum's findings greater weight. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). However, theCommission may not arbitrarily disregard a physician's opinion, especially when based on objective and measurable findings. Foxx, supra.

The Commission did not arbitrarily disregard the findings of Dr. Thompson. The Commission found that Dr. Thompson only examined appellant on one occasion, whereas Dr. Tietelbaum examined appellant on ten separate occasions and on each occasion appellant's reflexes were "+2 and symmetrical." The Commission simply gave the findings of Dr. Tietelbaum greater weight than that of Dr. Thompson. We hold that substantial evidence exists to support the Commission's finding that appellant failed to establish a physical injury with medical evidence supported by objective findings.

Affirmed.

Stroud, C.J., and Hart, J., agree.