Randy Woods v. Dub Clenney Construction Company and Bituminous Casualty Corporation

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA03-019

September 3, 2003

RANDY WOODS

APPELLANT

v. AN APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F001497]

DUB CLENNEY CONSTRUCTION CO.

BITUMINOUS CASUALTY CORP.

APPELLEES AFFIRMED

Olly Neal, Judge

Appellant, Randy Woods, appeals from a decision of the Workers' Compensation Commission (Commission) denying his claim for workers' compensation benefits. On appeal, appellant asserts that he has shown by a preponderance of the evidence that he sustained a compensable injury on January 14, 2000. We disagree with appellant's assertion and affirm.

Appellant worked as a welder for the appellee, Dub Clenney Construction Company (Dub Clenney). Appellant testified that on January 14, 20001, he was standing in the basket of a crane while welding an overhead beam, when a co-worker hit the wrong lever on the crane and "jammed" appellant's right shoulder into the beam. Following the incident, appellant experienced a burning sensation in his back and leg. Because the incident occurred near the end of the work day, appellant returned to his hotel room without reporting the incident to his supervisor. Appellant testified that he spent the next three days in his hotel room. Appellant said that he called his supervisor the day following the incident and informed his supervisor that he was unable to work because he was in pain. The following Monday, appellant returned to work; however, he left prior to clocking in when he received a message that his mother had suffered a heart attack.

Appellant first received treatment for his injury on January 23, 2000, when he went to the emergency room at Saline Memorial Hospital, where he received a shot in his hip and some pills. He later saw his family physician, Dr. Turbeville. Appellant was treated by Dr. John Pace, a neurosurgeon on December 7, 2000, and was diagnosed with nerve root compression. A lumbar laminectomy and discectomy at L-5 and S-1 was performed on June 20, 2001. Dub Clenney controverted appellant's claim for workers' compensation benefits.

At the hearing before the ALJ, appellant testified that his supervisor was Scott Hartsfield and at the time of his injury, Mr. Hartsfield was not on the work site. He could not recall if he told Mr. Hartsfield about being "jammed" into the beam when hespoke to Mr. Hartsfield the day following the incident. Appellant testified that he reported the injury to "Dana" at Dub Clenney. During his testimony, appellant stated that prior to the work-related incident, he had never had any problems with his neck or hips.

William Scott Hartsfield testified that he worked as a supervisor for Dub Clenney. He stated that when he is not on the job site the two lead men are in charge. Mr. Hartsfield said that appellant never reported an injury to him and that no one on the job site had any knowledge of appellant's injury. Mr. Hartsfield testified that "based on my observation the day he said his mother was hurt he left walking normal."

Deana Cole testified that she handles Dub Clenney's insurance matters and workers' compensation claims. She stated that appellant last worked on January 14, 2000. Ms. Cole said that she was first notified of appellant's injury on February 3, 2000, when she received a call from appellant's mother. She further stated that appellant never personally reported the injury to her. Ms. Cole testified that she notified the insurance company of appellant's injury on February 23, 2000.

Dr. John Pace, appellant's neurosurgeon, testified that he first saw appellant on December 7, 2000. He stated that appellant informed him that he was injured when "he was jammed into a beam in the ceiling of the building he was working in, struck his right shoulder, and later complained of low back pain radiating to his right lower extremity." Dr. Pace also stated that appellant informed him that the injury occurred three days afterChristmas 1999. Dr. Pace testified that during appellant's initial visit he performed a physical examination of appellant. He explained:

His extremities were normal and his neurological exam revealed a positive straight leg raise which is a sign of nerve root compression.

* * *

I had him do the straight leg raise. A positive straight leg raise is when the patient complains of pain radiating past his knee all the way down to his feet when he straightens out his leg and flexes his hip at the knee. A positive straight leg raise is a sign of root compression. Another examination I did, I tested his reflexes and he had a decreased Achilles reflex on the right and a normal one on the left. The reflex of the Achilles tendon, if it's diminished, is a sign of compression on the nerve root on the S-1 nerve root. He had full strength in his leg. He had numbness on his right leg in the S-1 dermatomal distribution which is consistent with an S-1 nerve root compression. An S-1 dermatomal distribution is decreased sensation in the area that is supplied sensation by that nerve root and that a specific pattern I'm looking for.

Dr. Pace said that following the examination he diagnosed appellant as having a right S-1 radiculopathy.

Dr. Pace further testified that appellant had a MRI on May 21, 2001, that revealed "a transitional lower-most lumbar type vertebral body, which will be called S-1." He said that as a result, appellant underwent a lumbar laminectomy and discectomy at L-5 and S-1 on the right for a disc herniation. Dr. Pace explained that appellant had a "disc desiccation, posterior bulge at L-5, S-1 with a small extruded fragment centrally posterior to the S-1 vertebral body causing focal, moderate central canal stenosis and bilateral neuroferamital narrowing." He further explained that his findings during the surgery were consistent with appellant having sustained an injury in January 2000.

Dr. Pace admitted that in a letter dated August 30, 2001, he stated that appellant's problems stemmed from the January 2000 injury and that his opinion was based on what appellant had relayed to him. Dr. Pace stated that "I have to rely on the patient for the truthfulness and accuracy of the history. I wrote down what the patient told me and according to what is in my chart I believe what the patient told me. That's the only choice I have." Dr. Pace testified that he had since reviewed appellant's January 23, 2000, Saline Memorial Hospital records and that the history in the hospital records was not consistent with the history appellant had relayed to him.2 He acknowledged that the hospital records do not mention the January 14 incident. However, Dr. Pace maintained that the January 14 incident was the source of appellant's injury. Dr. Pace opined:

That activity, riding the manlift and being jammed into the ceiling could have caused the injury Mr. Woods suffered. That would have been a painful injury. When I said I could state within a reasonable medical certainty that the care and treatment I provided to Mr. Woods was a result of the December 1999 incident, I am referring to the incident of being jammed into the ceiling beam. I stand behind my opinion today that Mr. Woods, given his condition in which I found him, could not return to work any time between January 2000 and the present.

The ALJ found that appellant had proved he sustained a compensable injury on January 14, 2000. The full Commission found that appellant had failed to sustain his burden of proof, and it reversed the decision of the ALJ. The Commission found that the only evidence supporting a causal relationship between appellant's back problem and the January 14 incident was the testimony of Dr. Pace. The Commission reasoned that because Dr. Pace's opinion was based on facts relayed to him by appellant, Dr. Pace's opinion should be given little weight. Therefore, based upon the remaining evidence, the Commission found that appellant failed to prove by a preponderance of the evidence that he sustained a compensable injury on January 14, 2000.

On appeal, appellant asserts that he did show by a preponderance of the evidence that he sustained a compensable injury on January 14, 2000. When 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 we affirm that decision if it is supported by substantial evidence. Watson v. Tayco, Inc., 79 Ark. App. 250, 86 S.W.3d 18 (2002). Substantial evidence exists if reasonable minds could reach the same conclusion. Daniels v. Arkansas Dep't of Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002). When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Id.

The employee has the burden of proving a compensable injury. Watson v. Tayco,Inc., supra. In order to prove a compensable injury a claimant must prove, among other things, a causal relationship between the injury and the employment. Horticare Landscape Mgmt. v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002). 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. Id. Objective medical evidence is not essential to establish the causal relationship between the injury and a work-related accident where objective medical evidence establishes the existence and extent of the injury, and a preponderance of other non-medical evidence establishes a causal relation to a work-related incident. Id.

In the case at bar, the objective medical evidence establishes that appellant had a back injury; however, it failed to establish a causal relationship between the injury and the January 14 incident. The Commission chose to give little weight to Dr. Pace's opinion that appellant's injury was causally related to the January 14 incident because Dr. Pace's opinion was based solely on what appellant had told Dr. Pace about the incident. It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Williams v. Brown's Sheet Metal, Ark. App. , 105 S.W.3d 382 (2003). Furthermore, the Commission is not bound by a doctor's opinion that is based largely on facts related by a claimant where the claimant's own testimony is less than determinative. Id. The non-medical evidence also failed to support a finding that appellant's injury was causally related to the January 14 incident. Appellant neglected to bring forth the testimony of any of his co-workers who might have witnessed the incident or who could have testified that he was bedridden for three days. Viewing the evidence in a light most favorable to the Commission, we cannot say that reasonable minds could not reach the same result as the Commission; therefore, we affirm.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.

1 Appellant initially believed that he sustained an injury on January 7, 2000; however, upon reviewing Dub Clenney's records the Commission determined that the date of injury was January 14, 2000.

2 The emergency room records from Saline Memorial Hospital revealed that appellant complained of pain in his right side and numbness in his right leg. Appellant informed the emergency room personnel that he had been experiencing the pain and numbness for several months. Appellant denied sustaining any type of injury. The records also reveal that appellant had a blood alcohol level of .2629.