Mary Miller v. Meyers Bakeries, Inc. and Insurisk

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

MARY MILLER

APPELLANT

V.

MEYERS BAKERIES, INC., AND INSURISK

APPELLEES

CA 01-811

APRIL 10, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E 900145]

AFFIRMED

The appellant, Mary Miller, appeals from a decision of the Arkansas Workers' Compensation Commission in which the Commission found that appellant failed to prove she sustained a compensable injury on October 28, 1998, while employed by the appellee, Meyers Bakeries, Inc. We find no error and affirm.

Appellant was involved in an incident at work on October 28, 1998. Appellant was operating a machine which required her to dump boxes to load bread in it. Appellee is in the business of making bakery products. On October 28, 1998, appellant was dumping boxes in her work area. Oscar Castillo, a co-employee, was helping appellant turn over the boxes. Appellant described the incident as follows:

Well like--I had to call Oscar to help me dump the boxes over and I was, you know, bent down to turn the boxes over and we got the boxes up so high and

the bundle with the--the band broke and the boxes slipped out of Oscar's hand and which made me, you know, made all the weight shift on me and I had to try to, you know, either try and dump the boxes on over or let it fall back on the pallet. By the time, you know--it was such a sudden jerk, and by the time, you know, I had that, I felt it pull in my chest.

Appellant did not seek medical attention at the time of the alleged injury. According to appellant, and Bessie Parker, a co-worker, appellant completed an accident report shortly following the actual work-related incident. Appellant continued to work that day, and reported to work every day thereafter until she sought medical treatment on December 13, 1998. When appellant reported to the emergency room, she complained of "pain LT chest shoulder back." The report from appellant's initial visit to the emergency room indicated that the onset of her symptoms were "worse yesterday." Appellant did advise the medical personnel that she had pulled a muscle in her chest approximately two months prior to seeking medical treatment. Appellant was provided with medication and released from the emergency room. The emergency room records do not indicate that appellant was restricted to light duty or at any time removed from work. On December 14, 1998, appellant reported to Dr. Lowell Harris complaining about pain in her shoulder. Dr. Harris's notes indicated that appellant complained that "About six weeks ago she and another person were carrying a heavy item when the other person dropped their end." On December 21, 1998, appellant returned to Dr. Harris advising that her shoulder, neck, and chest had not improved. In his report of this date, Dr. Harris stated "we will keep her on light duty and I think she will respond gradually and get better." On December 26, 1998, appellant reported to the emergency room of St. Michael's Healthcare Center. Appellant was diagnosed with cervicalmuscle strain, provided medication, and released from the emergency room. Appellant was held off from work for one day.

Appellant was again seen by Dr. Harris on December 28, 1998. Appellant provided that she was shopping on Christmas Eve or the day after Christmas and developed rather severe pain in the left neck, shoulder, and upper chest. Dr. Harris ordered an MRI and increased appellant's pain medication. Appellant was eventually referred to Dr. Joel Patterson, a neurosurgeon.

On February 3, 1999, surgery was performed on appellant by Dr. Patterson. Appellant underwent an anterior cervical diskectomy and fusion at the C5-6 and C6-7 levels. When symptoms of pain in appellant's neck and along her right side did not lessen over time, Dr. Patterson performed a second surgery. This surgery took place on December 20, 1999, and was at the C4-5 level.

The Administrative Law Judge (ALJ) found that appellant failed to prove by a preponderance of the evidence that she sustained a compensable injury on October 28, 1998. The Commission adopted the ALJ's opinion as its own. From the Commission's decision comes 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 aconclusion. 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).

In this case the ALJ found that appellant failed to establish a causal connection between her injury and her work. In order to prove a compensable injury a claimant must prove, among other things, a causal relationship between the injury and the employment. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). Objective medical evidence is necessary to establish the existence and extent of an injury but 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). However, when the only evidence presented to support a causal relationship between work and an injury is a medical opinion, the medical opinion must be stated within a reasonable degree of medical certainty. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).

In the present case, the only evidence addressing causation was from Dr. Patterson. Dr. Patterson offered the following testimony in his deposition:

Q. But from what information she provided, I take it that you can't statewithin a reasonable degree of medical certainty what event caused Ms. Miller to have the large bulge and herniated disc at the C5-6 level.

A. That's a correct statement.

Thus, in this case, Dr. Patterson clearly stated that he could not state within a reasonable degree of medical certainty what event caused appellant to have large herniated discs. Dr. Patterson stated that typically, patients with degenerative disease or spondylosis are more prone to disc herniation. Further, Dr. Patterson stated that "Disc herniation is usually related to some event, be that bending over to put your shoes on or turning your head the wrong way. It's impossible to tell other than by a patient's history when the disc herniation actually occurred."

Further, appellant did not seek medical attention until over a month and a half after the work-related incident. Appellant continued to work during this time. When appellant did seek medical attention she advised the nurse that the pain was "worse yesterday." Also, when appellant presented to Dr. Harris on December 28, 1998, she provided a history of shopping on either Christmas Eve or the day after Christmas and developing rather severe pain in the left neck, shoulder and upper chest. Based on the above evidence, we hold that the Commission did not err in denying appellant's claim.

Affirmed.

Neal, J., agree.

Pittman, J., concurs.