Superior Pontiac Cadillac Isuzu and Risk Management Resources, Inc. v. Larry L. Brown

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

SUPERIOR PONTIAC CADILLAC ISUZU & RISK MANAGEMENT RESOURCES, INC.

APPELLANTS

v.

LARRY L. BROWN

APPELLEE

CA02-425

DECEMBER 18, 2002

APPEAL FROM ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F009933]

AFFIRMED

This is an appeal from a Workers' Compensation Commission's order, which found that appellee Larry Brown had proven by a preponderance of the evidence that he sustained a compensable work-related injury while employed by appellant Superior Pontiac Cadillac Isuzu ("Superior"). Superior argues on appeal that the Commission's decision is not supported by substantial evidence. We affirm.

According to his testimony at the hearing, Brown began working for Superior as a master technician in December 1998. In early June 2000, Brown testified that he parked a vehicle in the service bay, and as he was trying to get out of the vehicle, he slipped on the wet floor. As Brown tried to catch himself, he stated that his "legs went clockwise," his "body went counterclockwise," and he twisted his back. Brown testified that he felt pain immediately and that he thought he had a muscle strain in his lower back. Brown stated that he went straight to his supervisor, Dean Rollins, and told him that he had fallen and twisted his back. Brown testified that Rollins asked him if hewas okay and if he needed to see a doctor, but Brown told him that he thought it was only a strain and that he just needed to go home and rest. Brown testified that he did not fill out any paperwork because he had injured his eye at Superior previously and had not been required to do so.

Brown testified that he could not remember the exact day that he fell at work, but he knew that it was after the first of June and that it was two or three weeks before a vacation he had planned for June 17, 2000. Brown stated that he returned to work the day after the fall and continued to work until he went on his vacation, but that his lower back hurt badly, especially in the mornings. Brown testified that he looked forward to his vacation because he hoped that his back would feel better after some rest. After Brown returned from vacation, one of his co-workers had quit, and he stated that he was having to work even harder. Brown testified that he started experiencing numbness, shooting pains, and cramps in his left leg and buttocks. The pain in his left leg had progressed to the point where he could not straighten it, and Brown went to see Dr. Steven Whitelaw on August 15, 2000. Brown testified that he has not worked since August 15, 2000, and a doctor's note indicates that Dr. Whitelaw told Brown not to return to work until August 22, 2000.

Brown testified that Dr. Whitelaw told him that he had a herniated disk and that he should have an MRI. Dr. Whitelaw also referred Brown to Dr. Cyril Raben, a surgeon. Dr. Whitelaw's records from August 15 indicate that Brown sought attention for back pain that began three weeks prior. Also, when Brown was asked on the form how he had injured himself, he checked the box marked "Unsure," instead of marking "On the job injury." Brown testified that when he wrote down that the pain began three weeks ago, he was referring to the pain in his leg and buttocks, not to his back pain, which he had been having since his fall at work approximately two months prior to August 15. He stated that his recent leg pain had really scared him and that although he had also been having back problems, he went to the doctor mainly because of his leg. Brown testified thathe had not put down on the form that his injury occurred on the job, because he did not realize until he saw Dr. Raben that his injury was work-related. Brown testified that he did not know what a herniated disc was or that it could cause leg pain until Dr. Raben explained it to him.

Brown first saw Dr. Raben on August 21, 2000. Dr. Raben's notes indicate that Brown complained of leg pain beginning two to three weeks earlier and lower back pain for two to three months. The notes also state that Brown recalled that the pain began when he slipped at work. Dr. Raben's notes indicate that Brown's MRI revealed a "huge disc herniation at L5/S1 with a large disc bulge at L4/5," both on the left side. Dr. Raben recommended a discectomy, which was performed on August 30, 2000.

Brown testified that he did not tell his supervisor, Rollins, that he was going to see Dr. Whitelaw, because he was on vacation. However, Brown stated that on August 21, after seeing Dr. Raben, he went to talk to Rollins about filing a workers' compensation claim. Brown testified that he asked Rollins if he remembered his slip and fall, and Rollins said that he did. Brown stated that he told Rollins that the incident caused more damage than he initially thought and that he needed to file a claim. Brown testified that Rollins told him that he would see what he could do and get back to him. The next day, Brown stated that Rollins said that there was nothing they could do for him, because they could not backdate reports. Brown testified that he called Superior in October 2000 to see about getting some money from his 401K and that Rollins called him later that same day and told him he was being terminated from Superior.

After his first surgery, Brown continued to experience pain. Dr. Raben's notes from November 11, 2000, indicate that an MRI from November 8, 2000, revealed scar tissue and a residual disc herniation at L5/S1. Dr. Raben stated that Brown would probably need another surgery in three to six months. On February 8, 2001, Dr. Raben performed the second surgery, a two-levelfusion at the L4/5 and L5/S1. The last note from Dr. Raben in the record, on April 16, 2001, indicated that Brown was doing "exceptionally well," and that he was to continue his "therapeutics." Dr. Raben also noted that he was prescribing a gym membership and a TENS unit for Brown.

Brad Edge, a customer at Superior and a friend of Brown, also testified at the hearing. Edge stated that Brown started complaining about his lower back before he went on vacation and that he was walking "like he was 80 years old." Edge testified that Brown told him it happened when he slipped while getting out of a vehicle at work. Brown's mother, Norma Wallace, testified that Brown was already having terrible back pain when he went on vacation and that he had been having that pain for several weeks. Wallace also testified that Brown told her that he had slipped and fallen at work.

According to Rollins's testimony, Brown never mentioned anything about an on-the-job injury in June 2000. Rollins testified that Brown had complained off and on about his back bothering him before June. Rollins stated that Brown did not complain about his back from June to August and that he worked a lot of hours during that time. In August, Rollins testified that Brown came to him and told him that he needed an operation and asked if he remembered the accident. Rollins stated that he told Brown that he did not remember it. Rollins then testified that Brown asked him to backdate the paperwork "to help him get some type of comp payment," but that he told Brown that he could not do that. Rollins testified that he terminated Brown because Superior had started getting cars that had to have corrective work done on them after Brown had already made repairs and that this was costing the dealership extra money.

Brown filed a workers' compensation claim, alleging that he had sustained a specific-incident injury to his back in June 2000. The ALJ found that Brown had proven by a preponderance of the evidence that he sustained a work-related injury in June 2000, and awarded him medicalexpenses and temporary total disability benefits from August 17, 2000, until a date yet to be determined. The Commission affirmed the ALJ's opinion.

On appeal, Superior argues that the decision of the Commission that Brown sustained a compensable specific-incident injury is not supported by substantial evidence and should be reversed. When reviewing a decision of the Workers' Compensation Commission, the Court of Appeals views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Rice v. Georgia Pac. Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court 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, the appellate court must affirm its decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).

In order to prove a compensable injury as a result of a specific incident that is identifiable by time and place of occurrence, a claimant must establish (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external harm to the body that required medical services; (3) medical evidence supported by objective findings establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4) (Repl. 2002). If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics,56 Ark. App. 126, 938 S.W.2d 876 (1997).

Superior concedes that there is medical evidence supported by objective findings establishing Brown's injury. However, Superior contends that Brown failed to prove that his injury was caused by a specific incident identifiable by time and place of occurrence and that it arose out of and in the course of his employment with Superior. As the basis for its first contention, Superior argues that Brown was unable to pinpoint the exact day on which his slip and fall occurred at work. While Brown was not able to state the exact day that his accident occurred, he testified that it happened after the first of June and prior to the commencement of his vacation on June 17. It is not a prerequisite to compensability that the claimant identify the precise date upon which an accidental injury occurred. Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). Rather, the claimant must only prove that the occurrence of the injury is capable of being identified. Id. A claimant's inability to specify the date might be considered by the Commission in weighing the credibility of the evidence, but Ark. Code Ann. § 11-9-102(4)(A)(i) does not require that the exact date be identified. Id. Here, the Commission found Brown's testimony on this point to be credible, and we defer to the Commission in determinations of credibility of witnesses. James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). Also, in addition to Brown's testimony as to how and when his injury occurred, two other witnesses corroborated Brown's testimony that his difficulties with his back began after he slipped and fell at work in early June, before he went on vacation.

Superior next contends that Brown failed to prove that his injury arose out of and in the course of his employment. Superior argues that Brown continued to work after his accident and did not seek medical treatment until August 15, 2000. However, as the Commission noted, Brown went home immediately after the slip and fall due to his back pain. Although he returned to work the nextday, Brown testified that he continued to experience back pain that would come and go. Brown testified that he initially thought it was just a back sprain that would eventually heal. It was not until Brown returned from vacation and was working even harder that the pain in his buttocks and leg began. When his leg pain increased to such an extent that he could not straighten his leg, Brown became alarmed and sought medical attention. Brown testified that although he had been experiencing back pain since the accident, his leg pain really "scared" him and that was the main reason that he finally went to the doctor.

Brown's testimony as to the circumstances surrounding his injury was not only corroborated by two other witnesses, but also by Dr. Raben's notes from August 21, 2000, which indicate that Brown's pain in his leg began two to three weeks earlier and that his lower back pain began two to three months earlier. Dr. Raben's notes also state that Brown's back pain began after his slipped and fell at work. In addition, although medical evidence is not necessary to establish a causal link between the injury and the accident at work, Wal-Mart Stores, Inc. v. Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999), in Dr. Raben's notes from November 11, 2000, he stated within a reasonable degree of medical certainty that Brown's back problems were a result of his on-the-job injury.

Superior also argues that the information Brown gave at his initial visit with Dr. Whitelaw on August 15, 2000, is inconsistent with his testimony. The information on the medical form stated that Brown came in for back pain, which started two to three weeks earlier. However, Brown testified that he was actually referring to the pain in his leg and buttocks, which had begun two to three weeks earlier. Brown also marked on the form that he was "Unsure" of the cause of his pain, instead of marking that it was an "On the job injury." In his testimony, Brown stated that he was not sure if his condition was work-related until he saw Dr. Raben, who explained to him what a herniated disk was and that it could cause leg pain. This testimony is corroborated by Dr. Raben'snotes from August 21, 2000. Also, Brown testified that he was unsure if he could check the "On the job injury" box without prior permission from his supervisor, Rollins, who was on vacation when Brown went to see Dr. Whitelaw.

Superior concedes that the compensability of Brown's claim rests on the credibility of the witnesses. The Commission specifically stated that it found Brown's testimony to be credible, and we defer to the Commission in matters involving witness credibility. James River Corp., supra. Although Superior argues that Brown's testimony conflicts with that of Rollins and with the information contained in his August 15, 2000, medical records, it is the Commission's province to reconcile conflicting evidence and to determine the true facts. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). The Commission's decision that Brown proved by a preponderance of the evidence that he sustained a compensable work-related injury in June 2000 is supported by substantial evidence.

Affirmed.

Vaught and Crabtree, JJ., agree.