Alison Stone v. Spherion Corporation and AIG Claim Services

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ca03-836

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ALISON STONE

APPELLANT

V.

SPHERION CORPORATION AND AIG CLAIM SERVICES

APPELLEES

CA03-836

March 31, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F009882]

AFFIRMED

Larry D. Vaught, Judge

Appellant Alison Stone's sole issue on appeal is that the Commission erred in finding that she failed to establish by a preponderance of the evidence the existence of any compensable injury to her cervical spine or her right upper extremity. We affirm.

Appellant was assigned to Wood Manufacturing Company d/b/a Ranger Boats by an employee leasing agency, appellee Spherion Corporation, in August 2000, installing electronic parts in boats. Her duties involved using pneumatic power tools such as drills, saws, and routers. On August 22, 2000, after having worked for approximately two weeks, appellant reported an injury with complaints of pain in her right upper extremity, radiating from her right shoulder into her right arm and hand. She left work that day and never returned.

Initially, appellant asserted three alternative theories of an alleged compensable injury. She contended that on August 22, 2000, she sustained a specific-incident compensable injury, or that on that date a gradual-onset injury to her right upper extremity, either a rapid-repetitive injury or in the form of carpal tunnel syndrome (CTS), manifested itself. She argued that she was entitled to additional medical treatment, temporary-total disability benefits, and attorney's fees. Appellees denied the existence of any compensable injury.

A hearing was held on April 3, 2002, and the administrative law judge (ALJ) ruled on May 3, 2002, that appellant had failed to prove by a preponderance of the credible evidence that she sustained any of the following: (1) a specific injury to her cervical spine or right upper extremity on or about August 22, 2000; (2) a gradual-onset/rapid-repetitive injury to her cervical spine or right upper extremity; (3) a compensable gradual-onset injury to her right upper extremity in the form of CTS. Accordingly, the ALJ dismissed appellant's claim in its entirety. Appellant appealed to the Commission, which affirmed and adopted the opinion of the ALJ. This appeal followed.

In reviewing decisions from 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 affirm if the decision is supported by substantial evidence. Wal-Mart Stores, Inc. v. Brown, __ Ark. App. __, 120 S.W.3d 153 (2003). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. The issue on appeal is not whether we 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, we must affirm the Commission's decision. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.

The claimant in a workers' compensation case bears the burden of proving that the injury was the result of an accident that arose in the course of employment, and that it grew out of or resulted from the employment. See Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812 (1990). Where, as here, 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. See Swearengin v. Evergreen Lawns, __ Ark. App. __, __ S.W.3d __ (Feb. 11, 2004).

At the hearing before the ALJ, appellant argued three alternative theories of an alleged compensable injury; however, on appeal she has abandoned her arguments with regard to a gradual-onset injury and focuses solely on her claim that on August 22, 2000, she sustained a specific-incident compensable injury. Appellant argues that she is entitled to additional medical benefits and temporary-total-disability benefits; however, because we affirm the Commission's finding that appellant failed to prove a compensable injury, we do not reach those issues.

In the present case, appellant was the only witness to testify at the hearing before the ALJ. 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). Her first assertion was that she suffered a specific injury on August 22, 2000. However, she failed to identify any specific injury or trauma, or any specific incident causing injury, instead generally referring only to the nature of the work performed and pain that she subsequently experienced. Additionally, Dr. Collins, in his deposition, testified that appellant was not aware of any specific injury. The evidence presented fails to meet the statutory requirements of Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999), which requires that all the following be met:

(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 physical harm to the body which required medical services or results in disability or death;

(3) medical evidence supported by objective medical findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury;

(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence.

Appellant contends that there is no question that she sustained an injury during the course of and arising out of her employment that caused her to see doctors who, by objective testing and by way of findings, identified that there was indeed an injury that appellant sustained as a result of using pneumatic power tools at work. She maintains that the only problem is that the doctors were unable to pinpoint the exact diagnosis of her injury because appellee refused to allow additional testing. She claims that most of the doctors thought it was reasonable for her to have further testing to determine the exact nature of her injury, but that appellees refused and employed delay tactics and interfered with her proper and prompt medical care.

The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Swearengin, supra. We have frequently recognized that it is not the function of this court on review of workers' compensation cases to determine credibility of witnesses and the weight to be given their testimony. Horticare Landscape Mgmt. 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 Commission, which may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. See Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). Specifically, credibility issues, as well as the weight to give conflicting medical testimony, are factual determinations for the Commission to resolve. Dallas County Hospital v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001). Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

From our review of the record, we conclude that the Commission's opinion finding that appellant failed to prove that she sustained a compensable injury displays a substantial basis for the denial of relief. There is insufficient evidence to prove that the injury complained of by appellant was caused by a specific incident and is identifiable by time and place of occurrence. Additionally, the extensive medical evidence submitted by six different doctors failed to pinpoint the cause of appellant's injury. The Commission's findings of fact are supported by the evidence and, because fair-minded persons could arrive at this conclusion, we affirm.

Affirmed.

Neal and Roaf, JJ., agree.