Kathy Wilson v. Noble Food Services, Inc. (Burger King)

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

KATHY WILSON

APPELLANT

V.

NOBLE FOOD SERVICES, INC. (BURGER KING)

APPELLEE

CA03-456

November 5, 2003

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. F109619]

AFFIRMED

John Mauzy Pittman, Judge

The appellant in this workers' compensation case filed a claim for benefits alleging that she sustained a work-related back injury while in the employ of appellee Noble Food Services, Inc., on August 4, 2001. After a hearing, the administrative law judge found that appellant failed to prove by credible evidence that she sustained an injury arising out of and in the course of her employment. On appeal, the full Commission affirmed and adopted the opinion of the administrative law judge. This appeal followed.

For reversal, appellant contends that there is no substantial evidence to support the Commission's finding that she failed to prove that she sustained a compensable injury. We affirm.

The claimant in a workers' compensation case bears the burden of proving that his injury was the result of an accident that arose in the course of his employment, and that it grew out of or resulted from the employment. Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812

(1990). When the sufficiency of the evidence to support the Commission decision is challenged on appeal, the question is not whether the evidence would support findings contrary to those made by the Commission or whether we would have reached a different result had we been the triers of fact. Maxwell v. Carl Bierbaum, Inc., 48 Ark. App. 159, 893 S.W.2d 346 (1995). Instead, the question on appeal is whether the Commission's findings are supported by substantial evidence. Id. Where, as here, the Commission has denied a claim because of the claimant's failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm if the Commission's opinion displays a substantial basis for the denial of relief. Williams v. Arkansas Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979).

In the present case, appellant testified that she slipped at work and injured her back. Her testimony was supported by that of her supervisor, Debra Ridgell, who stated that she heard appellant scream in the back room of the store and, upon investigating, was told by appellant that she had slipped. The Commission did not believe this testimony. Noting that appellant's testimony was inconsistent, selective, and evasive; that appellant had failed to disclose her prior medical history of back injury in her deposition; that appellant had failed in both her employment application and in her deposition to disclose her extensive criminal history; and that appellant gave conflicting descriptions of the extent of her alleged slip and fall to her physicians, the Commission found that appellant's testimony was not credible. The Commission also noted that appellant's supporting witness, Debra Ridgell, was a relative of appellant's boyfriend, with whom appellant resides.

The Commission is not required to believe the testimony of the claimant or any other witness. Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999). The testimony of an interested party is always considered to be controverted. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). We have frequently recognized that it is not the function ofthis court on review of workers' compensation cases to determine credibility of witnesses and the weight to be given their testimony. Horticare Landscape Management v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002). Questions of weight and credibility are, instead, within the sole province of the Workers' Compensation Commission, which may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). From our review of the record, we conclude that the Commission's finding that appellant was not credible was a permissible one and that the Commission's opinion displays a substantial basis for the denial of relief. See Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991).

Affirmed.

Hart and Griffen, JJ., agree.