Greene County & AAC Risk Management Services v. Jerry Vincent

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ca03-940

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

GREENE COUNTY & AAC RISK MANAGEMENT SERVICES

APPELLANTS

V.

JERRY VINCENT

APPELLEE

CA03-940

March 24, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F113556]

AFFIRMED

Josephine Linker Hart, Judge

Appellants appeal from the decision of the Arkansas Workers' Compensation Commission awarding temporary total disability benefits to appellee, Jerry Vincent, after the Commission concluded that appellee established by a preponderance of the evidence that he sustained a compensable injury to his back. Appellants argue that the Commission's findings are not supported by substantial evidence. We affirm.

Prior to his employment in 1997 with Greene County, appellee sustained an on-the-job injury to his back in December of 1994. Following the 1994 injury, appellant was also diagnosed with various back problems. Appellee was found to have rheumatoid arthritis, and a 1998 letter from his treating physician indicated that appellee had spondylolisthesis at L5-S1 and a degenerated disc at that level.

According to appellee, while working for Greene County on November 1, 2001, he and another employee, Johnny Forbes, picked up an oil pan to pour out the oil it contained into a barrel. They carried the pan thirty to thirty-five feet, and when they started to place

the pan on the barrel, the pan kicked back from them, and appellee hurt his back. Appellee told Forbes that he was hurt, and he leaned up against the barrel. Appellee described the back pain as a burning, with his leg becoming numb and sore. Appellee further observed that he had never had pain like this before, as previously it had not been this deep or intense. Because of the injury, he was unable to continue working.

Forbes corroborated in part appellee's account of the accident, stating that he and appellee had picked up the oil pan to just over waist high to pour the oil into a barrel when appellee suffered a "catch in his back." According to Forbes, they were pouring out the oil, but appellee was unable to complete the task, and they placed the pan back down. Appellee told him that he had hurt his back, and Forbes observed appellee holding his back and leaning against the barrel.

On November 29, 2001, appellee's treating physician performed a bilateral decompression laminectomy and discectomy at L5-S1 together with a posterior lumbar interbody fusion at the same level. Appellants controverted the compensability of the injury.1 The Commission, however, concluded that appellee met his burden of proof in establishing that the injury was compensable and awarded temporary total disability benefits as well as related medical expenses and continued reasonably necessary medical treatment. Appellants challenge the Commission's findings.2

A "compensable injury" is "[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment...." Ark. Code Ann. §11-9-102(4)(A)(i) (Supp. 2003). Further, "[a]n injury is `accidental' only if it is caused by aspecific incident and is identifiable by time and place of occurrence...." Id. Also, the "compensable injury must be established by medical evidence supported by objective findings...." Ark. Code Ann. §11-9-102(4)(B) (Supp. 2003). Our statutes define "objective findings" as "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. §11-9-102(16)(A)(i) (Supp. 2003). And "[w]hen an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability...." Ark. Code Ann. §11-9-102(4)(F)(i) (Supp. 2003). Our statutes further provide that the burden of proof of a compensable injury is on the employee, and for a compensable injury caused by a specific incident and identifiable by time and place of occurrence, the burden of proof is "a preponderance of the evidence." Ark. Code Ann. §11-9-102(4)(E)(i) (Supp. 2003).

On review, we examine the evidence in a light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence, which is evidence that a reasonable mind might accept as adequate to support a conclusion. Patterson v. Arkansas Dep't of Health, 343 Ark. 255, 264, 33 S.W.3d 151, 156 (2000). As for the credibility of witnesses, our supreme court has stated that

[q]uestions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. We defer to the Commission's findings on what testimony it deems to be credible. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. 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 that it deems worthy of belief.

Patterson, 343 Ark. at 265, 33 S.W.3d at 157 (citations omitted).

Appellants' argument on appeal is two-fold. In challenging the Commission's award of benefits, they first argue that appellee failed to meet his burden of proof regarding the compensability of the injury because, for a variety of reasons, appellee's testimony concerning how the injury occurred should not be believed. They point out what they argue are contradictions and inconsistencies in the evidence that render appellee's testimony not credible. However, as noted above, we defer to the Commission's findings on what testimony it deems to be credible. Here, the Commission gave credence to appellee's testimony, and we defer to that finding.

Second, appellants argue that appellee's current back condition was more likely the result of his continued chronic pre-existing degenerative back disorder, his initial back injury sustained in 1994, and his pre-existing arthritic condition. Appellants note that appellee has a history of back problems, particularly in the L5-S1 regions of the back where surgery was performed. However, as noted in the concurring opinion issued by one of the Commissioners, appellee underwent a CT scan the day following the injury, and the test revealed that appellee had "a broad based disc bulge at L5-S1 with a superimposed left foraminal disc herniation which displaces the left L5 nerve root as it exits the neuroforamen." As concluded by the Commissioner, this finding was not previously noted on any earlier diagnostic report and established the existence of a new injury by objective medical findings. Also, as noted by the same Commissioner, appellee's treating physician stated in a letter that the incident at work "certainly would qualify as the event that lead to [appellee] requiring surgical intervention," thus establishing a causal link between the incident and the injury. Thus, we cannot say that the Commission's decision was not supported by substantial evidence, as appellee's testimony along with medical evidence supported by objective findings established that appellee suffered a compensable accidental back injury caused by a specific incident identifiable by time and place of occurrence that arose out of and in the course of employment.

Affirmed.

Gladwin and Griffen, JJ., agree.

1 At the time of the hearing, appellee had not reached maximum medical improvement and had not been released by his treating physician.

2 The Commission adopted the decision of the administrative law judge.