Wal-Mart Stores, Inc. and Claims Management, Inc. v. Mary Austin

ca02-007

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA02-7

June 5, 2002

WAL-MART STORES, INC., and AN APPEAL FROM ARKANSAS

CLAIMS MANAGEMENT, INC. WORKERS' COMPENSATION

APPELLANTS COMMISSION [f003209]

V.

MARY AUSTIN

APPELLEE AFFIRMED

Wal-Mart appeals from an order of the Workers' Compensation Commission finding that appellee Mary Austin sustained a compensable right-foot injury arising out of the course of her employment. It argues that the Commission erred in finding that appellee proved she sustained a specific-incident injury and that she was a credible witness. We disagree and affirm the Commission's order.

Appellee was diagnosed with diabetes in 1981. She began working for appellant in 1986. In 1994, the small toe of her right foot was amputated after she attempted to remove a bunion and the toe became infected.

In June 1998, appellee worked in the shoe department of appellant's store on Asher Avenue in Little Rock, Arkansas. This store was in the process of closing. Appelleetestified that there were some fixtures "sticking out" from underneath the shelves, and as she had done on prior occasions, she attempted to push a fixture underneath the shelf with her foot to get it out of the aisle. However, there was something blocking the fixture on the other side of the aisle and she "just bumped into it, stepped into it" or basically, stubbed her toe.

Appellee did not think at first that she had injured herself and did not examine her foot until a coworker told her that she had a run in her stocking. She pulled off her shoe and saw that "there was a little tear in my toe, my toenail had been jammed." Appellee completed her shift and did not report the incident on that day. She testified that the incident occurred after June 5, 1998, and she first noticed problems with her right toe that she attributed to the incident on June 13, 1998. Appellee stated that she noticed that "it began to kinda hurt when I wore other shoes . . ." Therefore, she examined her right foot and found that one of her toes was "reddish-blue" and that there was a blue spot on the end of her toe.

Appellee also testified that she informed Patricia Roberts, her supervisor, of the injury on or around June 13, 1998. However, she apparently did not seek treatment for her injury until a July 2, 1998 appointment with Dr. Karman Hopkins at the East End Clinic. Appellee remembered reporting the condition of her toe to her supervisor on July 2, due to the fact that she was scheduled to work the upcoming holiday and because Dr. Hopkins advised her not to work. She maintains that she completed an accident report and placed it in the mail box of the store, but there was no such report submitted into evidence.

Conservative treatment with antibiotics and bedrest failed to alleviate appellee'scondition and Dr. Hopkins referred her to Dr. Michael Pollock at the St. Vincent Infirmary Medical Center. On July 6, 1998, appellee was admitted to the emergency room at St. Vincent. On that day, she filled out an accident report relating the date of her injury as June 13, 1998, and relating the nature of her injury as follows: "walked into rack[,] broke toenail and bruise[d] top of big toe[;] then it got infected." Dr. Pollock first removed and scraped appellee's big toenail. The same toe subsequently developed gangrene and was amputated on July 17, 1998. Appellee was eventually referred to another surgeon, who amputated her second and third toes on December 8, 1998. She underwent additional surgeries, including skin grafting and bone removal.

The last doctor's report in evidence was from Dr. K. Cooper, to whom appellee was referred by appellant. Appellee saw Dr. Cooper on December 2, 1999. He indicated that he was "not sure" about the workers' compensation status of the injury, and he made no work determination. He referred appellee back to her orthopedic surgeon, due to the extensive treatments she had received.

Appellee never returned to work after July 6, 1998. She was terminated in December 1999. Appellant controverted her entitlement to workers' compensation benefits, and a hearing was held before an Administrative Law Judge (ALJ). The ALJ found that appellee received a compensable injury on June 13, 1998. He further found that she remained within her healing period because she had not yet been released to return to work and because there was no evidence that she had reached maximum medical improvement. Therefore, the ALJ found that appellee was entitled to payment of total disability benefits from July 2, 1998,through the end of her healing period or until she is returned to work.

The Commission adopted the ALJ's findings in full. The Commission also responded to appellant's assertion that appellee was not a credible witness because there were some inconsistencies between her hearing testimony, her prior deposition testimony, and the medical reports in the record. Specifically, the injury date of June 13, 1998, appears to be inconsistent with appellee's testimony. The Commission noted that the ALJ found appellee to be credible as to whether an incident involving stubbing her toe occurred at work in June 1998, but determined her to be a "poor historian" as to precisely when the injury occurred. However, the Commission agreed with the ALJ's determination that appellee was a credible witness.

The Commission also rejected appellant's assertion that the only mention of a work-related accident is in Dr. Cooper's December 2, 1999 report. The Commission noted that in the emergency room accident report dated July 6, 1998, which was more contemporaneous to the accident than either Dr. Cooper's report or appellee's hearing testimony, appellee indicated that she injured herself by walking into a rack. Therefore, the Commission agreed with the ALJ's "apparent conclusion" that the accident report should be entitled to "much greater weight" than appellee's hearing testimony regarding the exact date of the incident.

Moreover, the Commission was not persuaded by Dr. Hopkins's July 2, 1998 report in which Dr. Hopkins stated appellee was "not quite sure" on that date what precipitated her problem. Nonetheless, the Commission did see "cause to question" appellee's credibilityin light of Dr. Hopkins's July 2, 1998 finding that appellee had no hang nails or wounds. However, the Commission did not consider this report adequate to reverse the ALJ's credibility determination, particularly where appellee provided a specific history of a work-related incident four days after Dr. Hopkins's report. The Commission specifically found the date of the accident to be June 13, 1998, as she reported in the accident report, and noted that appellant did not present any witnesses to rebut appellee's version of what happened. Therefore, the Commission affirmed the ALJ's order.

I. Specific Incident Injury

Appellant first argues that appellee failed to establish by substantial evidence that she sustained a work-related foot injury, primarily because her testimony regarding the date the injury occurred was inconsistent. It maintains that for the ALJ and the Commission to find that the date of the injury was June 13, 1998, required speculation and was tantamount to giving appellee the benefit of the doubt.

The evidence regarding the date of the injury was conflicting. In appellee's deposition testimony, she estimated the date of her accident to be between June 1 and June 6, 1998. When she filed her claim with the Commission, she indicated that the date of her accident was June 6, 1998. She testified at the hearing that on the accident report she turned into her employer, she indicated that the accident occurred between June 5 and June 20. On cross-examination, appellee stated that it happened "after June 5." However, she indicated June 13, 1998, as the date of the emergency room accident form. Appellee testified that she did not report her injury on the day that it occurred, but that she reported the injuryon or around June 13, 1998, because that was when she first noticed that she was having problems with her foot. In the pre-hearing order, appellant acknowledged that it had notice of her injury as of July 3, 1998, because it claimed "lack of notice prior to July 3, 1998."

In reviewing a decision of the 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. See Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue on appeal 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 the Commission's decision. See Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999).

We hold that the Commission's finding that appellee proved that she sustained a compensable injury is supported by substantial evidence. Appellee was required to prove that she sustained an accidental injury caused by a specific incident and identifiable by time and place of occurrence. See Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). However, she was not required to prove the exact date upon which she received her injury.

The Arkansas Supreme Court has held that:

A strict construction of the statute does not require, as a prerequisite to compensability, that the claimant identify the precise time and numerical date upon which an accidental injury occurred. Instead, the statute only requires that the claimant prove that the occurrence of the injury is capable of being identified. The inability of the claimant to specify the date might be considered by the Commission in weighing the credibility the evidence, but the statute does not require that the exact date be identified.

See Edens v. Superior Marble & Glass, 346 Ark. 487, 492, 58 S.W.3d 369, 373 (2001). Thus, the requirements of section 11-9-102(4)(A)(i) have been met when the claimant proves that she was injured as the result of a specific incident and the occurrence of the injury is susceptible to identification as to a time and place.

Here, the evidence demonstrates that appellee was injured in early to mid-June 1998; that she first noticed complications from the injury on or around June 13; that she first sought treatment on July 2; and that appellant concedes it had notice of the injury no later than July 3. Appellant offered no evidence to counter appellee's version of whether and how her injury occurred, and the Commission found her to be a credible witness with regard to her recollection of how the injury was sustained. It is within the province of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. See Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

Moreover, the Commission was not required to resort to speculation to determine that the date of the injury was June 13, 1998, because that is the date reported by appellee in the emergency room report. Rather, as it was entitled to do, the Commission chose to give more weight to the emergency room report rather than any other medical evidence or even appellee's hearing testimony. Therefore, because appellee proved that she was injured as the result of a specific accident, the occurrence of which was susceptible to identification as to a time and place, the Commission did not err in finding that she proved that she sustained a specific-incident injury.

II. Causal Connection

We further hold that the Commission did not err in finding that appellee's need for treatment was causally related to her injury. It is undisputed that she suffered from a preexisting condition, diabetes, which resulted in a prior amputation on the same foot. Related to the injury that is the subject of this appeal, she was diagnosed with an ischemic right great toe, diabetic foot condition, and peripheral vascular disease that often accompanies diabetes. She was also diagnosed with osteomyelitis, the same condition that required her to have her right fifth toe amputated in 1994. Appellant attempts to argue that appellee's diabetes alone was the cause of her condition and that there was no intervening work-related injury precipitating her need for treatment.

Appellant notes that appellee testified that she had no broken skin or blood at the time of the injury. In addition, on July 2, 1998, Dr. Hopkins stated that appellee was not sure what precipitated her problem and the doctor noted that she had no hang nails or wounds on her foot. Also, Dr. Hopkins noted that appellee's foot began swelling five days prior to her July 2 office visit, which appellant asserts is inconsistent with the Commission's finding that her date of injury was June 13. Appellant contends that the Commission arbitrarily disregarded Dr. Hopkins' July 2, 1998 report, which was closer to the time of appellee's alleged injury than the July 6, 1998 report. It also contends, as it did before the Commission, that the only mention of a work-related accident is in Dr. Cooper's report of December 2, 1999.

It is true that the medical records do not contain an express statement by any doctor that appellee's need for treatment is work-related. However, it is not true that the onlymedical record indicating the injury is work related is Dr. Cooper's December 1999 report. On July 7, 1998, appellee stated in the emergency room form that she walked into a rack. While this is not objective medical evidence of cause of her injury, objective medical evidence is not essential to establish the causal relationship between the injury where objective medical evidence establishes the existence and extent of the injury, and a preponderance of other nonmedical evidence establishes a causal relation to a work-related incident. See Wal-Mart Stores, Inc. v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Wal-Mart Stores, Inc. v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001).

Here, appellee testified that she jammed her toenail, had a small tear in her toe, and that her toe was bruised on the tip. It is true that on July 2, that Dr. Hopkins noted that appellee had no broken skin or visible wounds. However, this report does not belie a causal connection because the report was written two to three weeks after the injury occurred. Moreover, the Commission did not arbitrarily disregard the July 2 report. To the contrary, the Commission expressly stated that it chose to give "much greater weight" to the accident report than to Dr. Hopkins's report. It is the exclusive function of the Commission to weigh medical evidence and its resolution of conflicting medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc. 29 Ark. App. 218, 780 S.W.2d 34 (1989).

In addition, contrary to appellant's assertion, Dr. Hopkins's note that appellee's feet had been swelling for five days prior to her July 2 appointment supports that a prior injury had occurred. Diabetics are prone to suffer from minor injuries that would not normally affect nondiabetics and which do not immediately give rise to complications, as is amply demonstrated by the fact that appellee's 1994 amputation was precipitated by her simple attempt to remove a bunion. Similarly, here, appellee sustained complications as a result of a minor injury, complications that are well-documented by objective evidence.1

Finally, while it is true that diabetics are also prone to infection where they do not take proper care of their feet, there is nothing to support that was the case here. To the contrary, appellee testified that she kept her feet well-groomed; in fact, it was while grooming her feet that she discovered her toe was bruised.

In short, reasonable minds could believe appellee's testimony as to the causal relationship between her accident and her injury. See Wal-Mart v. Van Wagner, supra. Therefore, we affirm the Commission's order finding that appellee proved that her need for treatment was related to her compensable injury.

III. Appellee's Credibility

Appellant's final argument is that the Commission erred in finding that appellee was a credible witness. For support, appellant cites to appellee's failure to give a reliable account of the exact date that she was injured. It also disputes that appellee did not credibly testify that she reported the injury to her supervisor, because she stated that she never heard from appellant regarding her injury and that appellant typically failed to respond whenever someone submitted an accident report. Appellant's argument appears to be that it is not believable that "the multinational Appellant/employer never responded previously to accident reports . . . ." Relatedly, appellant disputes that appellee ever informed heremployer that her injury was work-related.2 Appellant also appears to argue that appellee was also not credible because she delayed in filing her worker's compensation claim; and because she provided inconsistent testimony as to whether she informed her doctors that the injury was work-related. Finally, appellant notes that appellee failed to volunteer in her deposition testimony that she had a prior amputation on the same foot.

We have already dismissed appellant's argument regarding appellee's inconsistent testimony as to the date of her injury. As to the remainder of appellant's challenges to appellee's credibility, the principle is the same. These were issues for the Commission to resolve and where there is a basis for the Commission's credibility findings, this court will not reverse. See Arkansas Dep't of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). Even where the basis of credibility is "specious at best," such a matter is for the Commission's determination. See id. Where there are contradictions in the testimony, the Commission is allowed to reconcile the inconsistencies and does not have to reject the testimony. See id. Here, although appellee's testimony in many regards was inconsistent, there appear to be sufficient bases for the Commission's credibility findings.

Although appellant may dispute the date it received notice of appellee's injury, it cannot argue it did not receive notice of her injury where it only disputed notice prior to July 3. Moreover, even if appellee did not inform appellant or her doctors that appellee's injury was work-related, appellant does not demonstrate how this omission makes her less thancredible, especially when considered in light of the July 2 accident report in which she attributed her injury to "walk[ing] into [a] rack."

As to appellee's delay in filing her claim, it is undisputed that she timely filed her claim within two years of the date of the injury, as she is permitted to do under Arkansas Code Annotated section 11-9-702(a) (Repl. 2002). Further, the Commission noted that her injury was minor and was of the nature that "normal healthy people would likely never consider reporting as a work-related injury and which some employers might deem too minor to follow-up on." Finally, while it is true that appellee did not "volunteer" testimony regarding her prior amputation while she was being deposed, as she explained during the hearing, she saw that a diagram of her body that was shown to her during her deposition correctly depicted the prior amputation.

In short, where the record supports the Commission's credibility findings, as here, we will not reverse.

Affirmed.

Jennings and Neal, JJ., agree.

1 It appears that the fact that none of appellee's doctors attributed her condition to her work-related injury did not give the Commission pause because the precipitating event was relatively minor and the complications were extremely serious. The Commission stated that appellee's injury "would appear to have essentially no medical significance to any of the doctors who began treating the Claimant after her right foot became abscessed." Appellant asserts that this conclusion requires speculation and is contrary to reason for the Commission to conclude that appellee's doctors would not want to knowthe history of her infection. Appellant also argues that to reach this conclusion, the Commission improperly granted appellee the benefit of the doubt. However, weighing the evidence in appellee's favor is not the same as speculating and granting her the benefit of the doubt.

2 Appellee testified that she did not sign the associate's statement of July 9, 1998, which was filled out by one of appellant's representatives. This form was not in the record.