Tim Moffett v. Voith Siemens Hydro Power and Liberty Mutual Insurance Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

TIM MOFFETT

APPELLANT

V.

VOITH SIEMENS HYDRO POWER and LIBERTY MUTUAL INSURANCE CO.

APPELLEES

CA03-38

JUNE 11, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

F105943

AFFIRMED

This is an appeal from a decision of the Workers' Compensation Commission denying appellant benefits for a low-back injury. Appellant contends on appeal that the Commission's decision is not supported by substantial evidence. We disagree and affirm.

Appellant Tim Moffett began working for appellee Voith Siemens around August 20, 2000. He was sent to be a millwright in Badin, North Carolina. At the hearing before the ALJ, he testified that somewhere around October 2000, he slipped and fell on his buttocks and hurt his back. He explained that he was walking down metal steps, which were slick from grease, and that he fell and landed on the steps. Appellant testified that he reported the accident to his foreman, Mike Williams. He stated that the fall "made my leg tingle like I hit my funny bone." The tingle went away, but the next day his low-back was sore, and the following week he began to have sharp pains down his leg. He testified that he continued to work, but that he walked funny. He worked in North Carolina for appellee until December 2000, when he was laid off to go back to Arkansas for the holidays. He testified that between October and December he left work early a couple of days to go to thechiropractor. At the time he was laid off, he still had sharp pains in his right leg and had back pain. He testified that he saw a chiropractor in Badin approximately five times and reported this to his supervisor. He denied any prior injuries or back pain.

The remaining evidence introduced by appellant at the hearing consisted of medical records. Chiropractor records dated September 5, 6, and 20, 2000, indicated that appellant had been having back pain for one to one-and-a half months with good and bad days, but he reported a negative history of trauma. Appellant was seen by Dr. Lee Tackett on June 13, 2001, complaining of back pain for the past nine months, which radiated into the right leg. Dr. Tackett's June 13, 2001 report indicated that appellant fell and that an x-ray taken by a chiropractor in North Carolina was normal. A June 14, 2001 MRI report indicated that appellant had a protruding disc at L-5, S-1 right, but otherwise appellant had a negative MRI of the lumbar spine. Appellant was referred to Dr. Anthony Russell. A July 12, 2001 letter from Dr. Russell to Dr. Tackett, indicated that appellant had injured his back and has complained of pain in the right hip and lower extremities since the injury. Dr. Russell wrote that because appellant has had persistent pain since September 2000, he thought that appellant was a good candidate for surgical decompression. A lumbar diskectomy was performed by Dr. Russell on July 31, 2001.

At the hearing, appellees introduced the deposition testimony of Joe Virsack, a private safety consultant for Voith Hydro. He testified that he did contract work for appellee in Badin from September 2000 through December 2000, doing safety and health consulting, audits, inspections, and compliance. Virsack testified that he had daily contact with appellant during that time, but he never was made aware that appellant hurt his back on the job. Virsack stated that he reviewed appellant's injury and illness records and saw nothing to indicate that appellant reported an injury. Virsack attempted to contact Mike Williams, appellant's foreman, but was unsuccessful. He wasable to reach Larry Proffer, who was the superintendent on the job site during the time frame of appellant's alleged injury. Virsack testified that Proffer recalled that appellant was seeing a chiropractor for his back, but was not aware that it was related to work. Based on his daily contact with appellant, Virsack did not believe that appellant injured his back on the job. The only injury appellant reported was a minor scrape to his hand.

Medical records introduced by appellees included a statement of services provided by Dr. Deidra Cole of the Salisbury Avenue Chiropractic Clinic in Albemarle, North Carolina. Appellant was seen on September 6 and 20, 2000. A record of September 6 titled "Diagnosis & Treatment Protocol: Lumbar Conditions" indicates lumbar segmental dysfunction. None of the records indicate a work-injury, and one specifically notes no trauma. The appellees' medical exhibits also included records from the Albemarle Chiropractic Center in Albemarle, North Carolina. These records, which also do not indicate a work injury, indicate that appellant was seen on October 10, 11, and 16, 2000, for low back/hip problems, which had persisted for two to three months.

Based on the evidence, the ALJ found that appellant failed to establish a compensable injury. While the ALJ found that appellant established proof of a physical injury (a herniated disc at L5-S1 with nerve root impingement), he found that appellant failed to prove the other requirements of Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002), including that the injury arose out of and in the course of employment, that it was caused by a specific incident, and that the injury was identifiable by time and place of occurrence. The ALJ found that appellant failed to prove a causal connection between his herniated disc and his employment. The ALJ noted that the only evidence regarding a causal connection came from appellant and found that his testimony was not credible. This credibility determination was based on the fact that appellant did not advise the chiropractors he saw of any work-related injury and submitted the charges for the chiropractors to his group insurance. The ALJalso considered that appellant continued to work until he was laid off despite the pain, which he testified continued to worsen, and that after his unemployment benefits ran out in May 2001, he sought the advice of an attorney, who directed him to seek further medical treatment. The ALJ also found it significant that the dates of chiropractic treatment in September and October 2000 were in direct conflict with the time frame regarding the onset of his symptoms. A September 5, 2000 record indicated that his low-back complaints began one to one-and-a-half months prior, and an October 10, 2000 record indicates low back, hip, and right leg problems beginning two to three months prior. Moreover, none of the September and October 2000 chiropractic records note a work injury, and the September 5, 2000 records shows a negative history of trauma. The ALJ reasoned that if the September and October 2000 records accurately reflected when appellant's complaints began, it would have been prior to his beginning work for appellee in North Carolina on August 20, 2000. In addition, the ALJ found it "curious" that when appellant decided he needed further treatment, he contacted an attorney instead of a doctor. The ALJ also questioned the fact that appellant's first report of a work-related accident was to Dr. Tackett on June 13, 2001, which was eight or nine months after the alleged injury and after he had filed a workers' compensation claim. The full Commission affirmed and adopted the decision of the ALJ. From that decision, comes this appeal.

Appellant contends that the full Commission's decision finding that he failed to prove by a preponderance of the credible evidence that he sustained a compensable, low-back injury in September/October 2000 is not supported by substantial evidence. In reviewing decisions from the Workers' Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Daniels v. Arkansas Dep't of HumanServs., 77 Ark. App. 99, 72 S.W.3d 128 (2002). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. The issue is not whether this Court might have reached a different result from the Commission. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Id. 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. Daniels, supra.

Arkansas Code Annotated section 11-9-102(4)(A)(i) 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[.]" It further states that an injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence. Thus, in order to prove a compensable injury the claimant must prove, among other things, a causal relationship between his employment and the injury. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002).

In the present case, the Commission found that appellant failed to meet his burden of proving that he sustained a compensable injury to his low back in September or October 2000. Specifically, he failed to prove that his herniated disc was the result of an injury that arose out of and in the course of his employment, that it was caused by a specific incident, and that it was identifiable by time and place of occurrence. The only evidence that appellant sustained a work-injury came from his testimony, which the Commission found to be not credible. 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). There is no evidence, aside from appellant's own testimony, that he reported a back injury to appellee. The chiropractors who treated appellant after the alleged injury made no note of a work injury, and one noted a negative indication of trauma. The first indication of an "injury" was in Dr. Tackett's June 13, 2001 records, which were eight or nine months after the alleged work-injury and after appellant's workers' compensation claim was filed. Based on the facts before us, we conclude that the Commission's decision displays a substantial basis for the denial of relief.

Affirmed.

Griffen and Crabtree, JJ., agree.