Electric Cowboy, Inc. and Fremont Compensation v. Melissa Carol Thetford

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

ELECTRIC COWBOY, INC., and

FREMONT COMPENSATION

APPELLANTS

V.

MELISSA CAROL THETFORD

APPELLEE

CA01-812

January 30, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

E910613

AFFIRMED

This is an appeal from a decision of the Workers' Compensation Commission finding appellee's injury to be compensable and awarding benefits. Appellant contends that the Commission's decision is not supported by substantial evidence. Appellee also argues that we should reverse the Commission's denial of a penalty for appellant's refusal to pay benefits. We affirm.

Appellee Melissa Thetford began to work for appellant Electric Cowboy in August 1998 as a bartender. She was paid $2.15 per hour, plus tips. She testified that she never made less than $100 per night in tips, averaging $22 to $25 per hour in tips. At the time she sustained her injury, she worked approximately eighteen to twenty hours a week on Thursday, Friday, and Saturday nights. She testified that she injured her back on Saturday, May 1, 1999. She described that she was putting a case of beer into the cooler, and when she bent over to pick it up, she felt something pop, causing a sharp pain in her back. One of appellee's fellow bartenders observed her injury, and she reported it that night to her manager, Darrell "Bucket." Appellee stated that she took a pain pill, which she had in her purse after having dental work, and continued to work because she could not afford to leave. Appellee went home that night and laid on a heating pad and could not move the next day when she woke up. Monday morning she made an appointment with a chiropractor, Dr. McCormick, for Tuesday, May 4, 1999. Two hours after visiting Dr. McCormick for an adjustment, she presented to the emergency room of St. Michael's Minor Care Clinic because her back problems were not alleviated.

At the hospital, appellee was diagnosed with sciatica and given muscle relaxers and pain medication, and she returned to work. Appellee stated that she went back to the doctor in June; she was seen in the emergency room of Wadley Regional Medical Center, where x-rays were taken and she was prescribed more pain medication and muscle relaxers. Appellee indicated that she continued to work for appellant because she could not afford to take off work. In August 1999, appellee again reported to the emergency room of Wadley Regional Medical Center, when she was referred to AHEC, where she was seen by Dr. Corbell, who prescribed pain medication and scheduled an MRI. After the MRI, appellant was seen by Dr. Weems and his partner, Dr. DeHaan, who diagnosed appellee with two herniated discs and performed surgery on October 15, 1999.

Appellee continued to work at the Electric Cowboy until August 26, 1999, when she was terminated for her absenteeism and attitude. She stated that she was not aware of what was wrong with her back at the time she was terminated. She was planning on going to the doctor to find out exactly what was wrong with her back after her health insurance was to take effect; however, she was unable to pay the premiums after she was terminated. During the last week of August and first week of September, appellee did computer work from home for Patterson Engineering, but stopped because of her inability to drive. Appellee has not worked since that time.

In addition to her own testimony, appellee presented the testimony of Jodi Taylor, which is discussed infra. Due to appellant's failure to completely and fully disclose the information requested by appellee in accordance with discovery and the prehearing order, appellants were only allowed to proffer the testimony of its witnesses -- Jeff Privett and Mike Butler.

After a hearing on March 2, 2000, the administrative law judge, in a June 6, 2000 opinion, ruled in favor of appellee, finding that she sustained a compensable injury, that she earned wages sufficient to entitle her to a weekly compensation rate of $293 for temporary total disability, and that she was entitled to temporary total disability benefits from September 5, 1999, continuing through the end of her healing period, a date yet to be determined. However, the ALJ denied appellee's request for a penalty under Ark. Code Ann. § 11-9-802(e) (Repl. 1996). The Commission affirmed the ALJ's decision in an opinion delivered April 5, 2001.

Standard of review

The standard of review on appeal is well-settled. In determining the sufficiency of the evidence to sustain the findings of the Workers' Compensation Commission, the appellate court reviews the evidence in the light most favorable to the Commission's findings and affirms if the findings are supported by substantial evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We will not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Id.

Whether the Commission's finding that appellee sustained a compensable injury is supported by substantial evidence.

The employee bears the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E) (Supp. 2001). Arkansas Code Annotated section 11-9-102(4)(A)(i) (Supp. 2001) defines compensable injury as:

An accidental injury causing internal or external physical harm to the body...arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]

It is also required that a claimant establish a compensable injury by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2001).

Appellant contends that there is not substantial evidence to support the Commission's decision because appellee failed to prove (1) that her alleged injury arose out of and in the course of her employment; (2) that her injury was causally connected to the work-incident; and (3) that her alleged injury was caused by a specific incident identifiable by time and place of occurrence.

Appellee testified at the hearing that she injured her back while lifting a case of beer on May 1, 1999. She stated that Mitsi Peeler, a co-worker, witnessed the incident, but she was unable to be located to testify at the hearing. Appellee also testified that she reported the injury to Darrell "Bucket," but she could not locate him nor did she or appellant know his last name. In support of its argument, appellant contends that her testimony was uncorroborated. However, the Commission found her testimony to be credible. See Ringier Am. v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993).

Appellant also points to the fact that appellee gave inconsistent dates of injury in filing the claim and to medical providers. For example, the AR-C filed by appellee on September 14, 1999, reflects an injury date of June 14, 1999. On September 27, 1999, appellee reported to Dr. Weemsthat she injured herself two months prior. She reported on September 5, 1999, at the emergency room and complained of back pain which began six weeks prior. During another emergency room visit on August 19, 1999, appellee reported that her symptoms had been intermittent for the past two months. However, appellee confirmed May 1, 1999, as the date of injury by determining when she saw the chiropractor followed by her emergency visit. Appellee also explained that the inconsistent reports were given due to the medications she was on. Again, the Commission found her testimony to be credible. See id.

In attempting to controvert that appellee sustained her injury on May 1, 1999, appellant suggests that appellee would be unable to ride a horse if she had injured herself on May 1, 1999, as she contends. However, appellee testified that she did ride a horse for approximately fifteen or twenty minutes while on vacation in late May, but that the horse merely walked.

Appellant also suggests that appellee failed to prove a causal connection between her alleged injury and the May 1, 1999 incident. The Commission found and the evidence reflects that Dr. DeHaan opined that the appellee's low back problems were causally related to the May 1999 incident. While appellant acknowledges Dr. DeHaan's opinion, it contends that it was based on an inaccurate medical history provided by appellee in which she failed to disclose previous conditions for which she had received treatment, including female problems, headaches, and urinary problems. The Commission credited Dr. DeHaan's opinion and found appellee's injury to be compensable based on that opinion combined with the appellee's credible testimony.

Appellant finally contends that appellee failed to prove that her alleged injury was caused by a specific incident identifiable by time and place of occurrence. Its argument is based on appellee's inconsistent reports of the date on which she sustained her injury. The Commission recognized the inconsistent dates given by appellee, but noted that she "ultimately confirmed herinjury date of May 1, 1999, after she called to find out when her medical treatments were." The Commission found that her injury occurred on May 1, 1999, and not later as appellants contended. The Commission stated, "We are persuaded by the fact that this issue turns on witness credibility, and by the fact that the Administrative Law Judge, who observed the demeanor of the witness, found the claimant's explanation as to `what happened' to be credible."

The Commission's decision finding appellee's claim to be compensable turned on matters of credibility, and we conclude that there is substantial evidence to support the Commission's decision.

Whether it was error for the Commission to award temporary total disability benefits from September 5, 1999, until a date yet to be determined.

Appellant contends that even if appellee proved she sustained a compensable injury, the Commission erred in finding that she was entitled to temporary total disability benefits from September 5, 1999, until a date yet to be determined. Temporary total disability is awarded when the claimant shows she is within her healing period and is totally incapacitated from earning wages. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). The healing period is that period for healing of an injury which continues until the claimant is as far restored as the permanent character of the injury will permit. Byars Constr. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000). Whether a claimant's healing period has ended is a factual question that is resolved by the Commission, which is affirmed on appeal if supported by substantial evidence. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

The evidence demonstrates that appellee worked for appellant until she was terminated on August 26, 1999, for absenteeism and a bad attitude. In her deposition, she testified that she did computer work from home for Patterson Engineering during the last week in September and firstweek of October, but had to discontinue her work stating, "I could not drive anymore. I could not move." Appellee also filed for unemployment benefits shortly after she was fired, wherein she stated that she was ready, willing, and able to work. She explained, however, that she was required to register with the unemployment office to obtain Medicaid and had to represent that she was willing to work in order to get Medicaid. The Commission found appellee's testimony that she discontinued working for Patterson Engineering because of her inability to drive to be credible in finding that she was temporarily totally disabled beginning on September 5, 1999, and we conclude there is substantial evidence to support its finding.

The Commission awarded the benefits until a date yet to be determined. In the Commission's award of TTD benefits, it noted the deposition testimony of Dr. DeHaan taken on February 24, 2000. He testified that appellee has not reached the end of her healing period and that he has not released her to work in any capacity. In addition, he testified that he normally releases patients for light duty four to six weeks after surgery and that the only reason why he did not release appellee was because he did not think she had a job. He indicated that he would have released appellant had he thought this was a workers' compensation injury.

Although Dr. DeHaan's testimony is somewhat conflicting, it is within the Commission's authority to resolve conflicting medical evidence. Maverick Transp. v. Buzzard, supra. The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Id. Because the Commission obviously found credible Dr. DeHaan's testimony that appellee's healing period had not ended and that he had not released her to work, we conclude that there is substantial evidence to support the Commission's decision.

Whether the $293.00 weekly compensation rate for temporary total disability was excessive andnot supported by substantial evidence.

Appellant also argues that substantial evidence does not support the Commission's finding that appellee earned wages to justify a compensation rate of $293 per week for the purposes of temporary total disability benefits. It specifically contends that appellee failed to present sufficient proof to establish that her average weekly wage was higher than that shown on her payroll records and reported to the Internal Revenue Service. Further, appellant states that appellee's testimony regarding the amount of tips she earned per night was uncorroborated.

Appellant testified that she earned $2.15 per hour, plus tips; she stated that she received approximately $100 in tips each night. A fellow co-worker, Jodi Taylor, testified that each worker earned $2.19 per hour, plus tips, and averaged $100 per night in tips. She stated that she helped appellee count her tips on most nights. Taylor added that her W-2 Form did not accurately reflect her earnings. Taylor admitted, however, that she was not personally aware of the actual wages that appellee earned or reported.

The payroll records introduced by appellant through its regional director, Mike Butler, reflect that appellee, during the seventeen weeks prior to the injury, earned a total income of $2,104.42, including a reported tip income of $1,105.03. However, appellant did not introduce any record of what wages it or appellee reported to the IRS.

Arkansas Code Annotated § 11-9-102(19) (Supp. 2001) defines wages as follows:

"Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer and includes the amount of tips required to be reported by the employer pursuant to § 6053 of the Internal Revenue Code of 1954 and the regulations promulgated pursuant thereto or the amount of actual tips reported, whichever amount is greater[.]

(Emphasis added.) Pursuant to Section 6053(a) of the Internal Revenue Code, every employee isrequired to report all tips, which are wages, to her employer on or before the 10th day of the month. See 26 U.S.C.A. § 6053. The employer, under Section 6053(c)(1)(D)(i), is required to report the aggregate amount of tips reported by the employee to the employer under subsection (a). Appellant offered no proof of appellee's W-2 to demonstrate the amount of tips reported to the IRS. Thus, the determination of wages would ordinarily be based on the amount of tips required to be reported by the employer under § 6053, which would consist of the aggregate amount reported by the employee throughout the year.

In the present case, however, the Commission relied solely on the testimony of appellee, which it found to be credible and corroborated by Jodi Taylor, in finding that appellee was making wages sufficient to justify $293 per week for temporary total disability. While appellant did introduce a payroll record through the testimony of Mike Butler, Butler's accompanying foundation testimony was only proffered due to the appellant's failure to comply with discovery requests. Thus, there was no evidence admitted that explained how the information in the wage records was obtained. Appellant's argument that the records reflect the amount of tips reported by appellee is not supported by admissible evidence and the Commission accorded no weight to the records.

The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). There may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Id. Here, we are not convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Whether the Commission erred in finding that appellee was not entitled to a penalty pursuant to Ark. Code Ann. § 11-9-802(e).

Appellee contends that the Commission erred in refusing to impose a penalty pursuant to Ark. Code Ann. § 11-9-802(e) for appellant's failure to pay benefits and asks this court to reverse the Commission's decision and impose a penalty. A cross-appeal is an appeal by an appellee who seeks something more than was received in the trial court. Arkansas Dep't of Fin. & Admin. v. Pharmacy Assocs., Inc., 333 Ark. 451, 970 S.W.2d 217 (1998). It is well settled that we will not consider an appellee's request for affirmative relief when the appellee has failed to file a notice of cross-appeal. Id. According to the abstract and record, appellee failed to file a notice of cross-appeal. Therefore, we decline to address this issue.

Affirmed.

Hart and Griffen, JJ., agree.