Cynthia Barnes v. Emerson Electric and Crawford & Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION I

CYNTHIA BARNES

APPELLANT

V.

EMERSON ELECTRIC AND CRAWFORD & COMPANY

APPELLEES

CA 03-731

April 14, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E906768]

AFFIRMED

Terry Crabtree, Judge

The appellant, Cynthia Barnes, appeals from an order of the Workers' Compensation Commission that found that she had sustained a compensable injury to her back while at work on June 3, 1999; that awarded her temporary total disability benefits from June 4, 1999, to January 6, 2000; and that found that she was entitled to reasonably necessary medical care for the ongoing treatment of problems associated with her compensable injury. The Commission denied, however, appellant's claim that she was entitled to compensation for a seven-percent, permanent-partial physical impairment. In this regard, the Commission found that appellant had failed in her burden of proving that her compensable injury was the major cause of her impairment. Appellant takes issue with this finding, arguing that the Commission erred by failing to make adequate findings of fact and that the decision is not supported by substantial evidence. We affirm.

The record shows that appellant worked as an auman tech, for which she was responsible for maintaining a large winding machine that makes coils. As part of her duties, she was required to lift forty-pound canisters of wire on a regular basis. On the night of June 3, 1999, appellant felt "a little pull" while lifting a canister of wire. She completed her shift, went home, and sat in a recliner, but was later unable to get up from the chair. Appellant has not worked since the date of the accident.

Appellant initially sought treatment from Dr. Stevan VanOre, who diagnosed an overuse injury. Appellant was also seen by Dr. Ken Collins, who offered a diagnosis of lumbar strain. An MRI report revealed severe degenerative disk disease and a disk herniation at L4/L5. Appellant was then referred to Dr. James Blankenship, a neurosurgeon. He indicated that his neurological examination did not reveal any deficits, but he noted that "her MRI ... shows an extremely severe disk degeneration for a lady of her age at 4-5 with Type I endplate changes and disk bulging with a probable small disk herniation on the right side that could be the etiology of some of her leg pain." Dr. Blankenship recommended conservative treatment to include physical therapy, but he stated that surgery might be recommended as a last resort. In August 1999, Dr. Collins reported that appellant had decided to undergo surgery. Consequently, Dr. Blankenship recommended fusion surgery.

Appellant was then sent to Dr. David Davis for an independent evaluation. Dr. Davis, a neurologist, stated that any consideration of surgery should be delayed until conservative measures were fully utilized. He also believed that the necessity for surgery would be unlikely.

In March 2000, Dr. Blankenship reported that appellant did not seem to be interested in surgery, that she had cancelled two scheduled surgeries, and that his office had experienced difficulty in contacting her. Appellant returned for a visit with Dr. Blankenship in August 2001. At that time, Dr. Blankenship noted that he had not seen appellant in two years and that she should begin treatment anew since she had not participated in conservative treatment over that period of time. In a report dated August 22, 2001, Dr. Blankenship expressed the opinion that appellant had sustained a seven-percent permanent physical impairment.

Appellant's first argument on appeal is that the Commission erred by not making findings of fact with regard to the role her nine years of lifting heavy objects contributed to her preexisting disk degeneration. The pertinence of this desired finding is not readily apparent to us, since appellant claimed, and the Commission found, that appellant had sustained a compensable injury caused by a specific incident identifiable by time and place of occurrence, and not a gradual onset injury. What is clear to us is that appellant did not raise this issue below, and we do not consider issues that are raised for the first time on appeal. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998).

Appellant next contends that the Commission's denial of permanent partial disability benefits is not supported by substantial evidence. We find no merit in this argument.

Under our law, permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. Ark. Code Ann. §11-9-102(4)(F)(ii)(a) (Repl. 2002). The statute further provides that, if any compensable injury combines with a preexisting condition, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(b). The term "major cause" is defined as more than fifty percent of the cause. Ark. Code Ann. § 11-9-102(14)(A); Smith v. Gerber Products, 54 Ark. App. 57, 922 S.W.2d 365 (1996).

In determining the sufficiency of the evidence to support the findings of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we will affirm if those findings are supported by substantial evidence. Jim Walter Homes Travelers Insurance v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The determination of the credibility and the weight to be given a witness's testimony is within the sole province of the Commission. Id. Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Id. When a claim is denied because the claimant has failed to show 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 v. Arkansas Waffles, Inc., ___ Ark. App. ___, 117 S.W.3d 653 (2003).

In this case, appellant sought permanent-partial benefits of seven percent to the body as a whole based on an opinion expressed by Dr. Blankenship. The Commission rejected that opinion because he stated that the rating was based on appellant's preexisting disk degeneration. The Commission thus reasoned that appellant had not shown entitlement to benefits based on that impairment rating because there was no evidence that her compensable injury was the major cause of her impairment. We cannot say that the Commission's decision does not display a substantial basis for the denial of relief. Accordingly, we affirm.

Affirmed.

Stroud, C.J., and Baker, JJ., agree.