Lorie Davis v. Fresenius Medical Care

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ca04-111

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA04-111

September 29, 2004

LORIE DAVIS AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [F112505]

V.

FRESENIUS MEDICAL CARE AFFIRMED

APPELLEE

Wendell L. Griffen, Judge

Lorie Davis appeals from the denial of workers' compensation benefits. The Workers' Compensation Commission (Commission) found that she failed to prove she sustained a compensable injury that arose out of and during the course of her employment. We affirm.

Appellant was employed as a charge nurse for appellee, Fresenius Medical Care, at the time she alleged that she suffered a slip-and-fall injury that resulted in a back injury. On February 11, 2001, appellant rode from Forrest City, Arkansas, to Memphis, Tennessee, with her supervisor, Gwen Palmer, to attend a mandatory continuing-education conference. The meeting was held at a Holiday Inn. The exact circumstances surrounding appellant's injury are not clear.

Appellant testified at her workers' compensation hearing that she left during the middle of a presentation to go the rest room, when she fell, landed on her buttocks and head, and suffered immediate pain in her back and sides. She stated that she fell on carpeted concrete. Appellant denied at the hearing that she left the building.

She stated that she told Palmer where she was going and that when she returned, she told Palmer that she fell outside of the meeting room. Appellant testified that she also told a co-worker, Mickie Watson, that she had fallen and Watson replied that appellant could have dislodged her bladder. Appellant further testified that Cathy Good, another co-worker, heard her tell Palmer and Watson that she had fallen.

Gerald Straight, appellant's boyfriend, provided appellant's history to the first doctor who treated her, and Straight indicated that she fell in a parking lot because of slick shoes. However, Straight testified that he did not remember why he indicated that appellant fell in a parking lot, and he did not remember whether appellant told him that she fell because she was wearing slick shoes. At the hearing, appellant testified that she told Straight that she fell outside of the meeting, but did not tell him that she fell in the parking lot. Appellant could not remember whether she told Straight that she did not know whether she had told anyone that she had fallen. Appellant explained that she had received electroshock therapy three or four weeks prior to the hearing, which had impaired her memory.

Palmer testified that she did not remember appellant telling her about receiving an injury on February 11, even during the ride home from Memphis to Forrest City. According to Palmer, she did not learn that appellant was alleging she was injured until February 17, and even then, appellant did not tell Palmer where she fell. In fact, Palmer stated that appellant did not want to tell her how she hurt her back because appellant was apparently embarrassed at being clumsy.

Good testified that on February 11, appellant told her that she was hurting and asked Good if her stomach looked like it was swelling. Good asked her "why" and appellant told her that she felt like her bladder had dropped, but did not indicate why or what would have caused her bladder to drop. However, Good also testified that appellant did not tell her on February 11 that she had fallen. Good estimated that approximately four weeks later, appellant told her that she fell when she went outside to the pool area to get something to drink and that she went outside because there were so many people at the inside vending machine.

The Administrative Law Judge (ALJ) found that appellant was not a credible witness because her testimony contradicted that of her co-workers, she could not remember various portions of her deposition testimony, and her testimony contradicted the medical histories she provided to various health-care providers. For example, appellant denied that she told Good that she had fallen in the parking lot and insisted that she told Good that she fell outside of the meeting. She also denied that she told Good that the line was too long during a break to get a soda inside the building and that she fell when she went to the vending machine outside of the building, by the pool.

Further, the ALJ noted that appellant's various medical histories given to her health-care providers offered numerous versions of how the fall occurred. Appellant was initially treated by Dr. Lawrence Nichols. The history given to Dr. Nichols was provided by Straight, who indicated that appellant fell in a parking lot because of slick shoes. A subsequent history provided by appellant to Dr. James Jacobs indicated that she fell at a conference meeting; that she slipped in the rain, falling on her back, striking her head and neck and low back. Yet a different history was given to appellant's therapist, Linda Brewster. This history indicated that "on a rainy day she was walking into her place of work and she slipped on a slippery sidewalk and fell on her tail bone." Finally, appellant reported to Dr. Savu that her low back pain was initiated by a fall on concrete.

The ALJ cited the law that governs whether an employee is performing employment services, but found that he could not determine whether appellant was performing employment services at the time she fell. He concluded that appellant was not a credible witness; that it was unclear what appellant was doing when she fell; and that it could not be determined whether the incident occurred during a scheduled break or whether appellant excused herself during the meeting for a personal break. Therefore, the ALJ found that appellant failed to prove that her injury arose out of and during the course of her employment. The Commission affirmed and adopted the ALJ's findings in full.

The standard of review governing workers' compensation cases is well-settled. We view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Where the Commission denies benefits, the substantial evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Crudup v. Regal Ware, Inc., supra. The issue 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, then we must affirm. Green Bay Packing v. Barlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). We affirm because the Commission's decision displays a substantial basis for the denial of relief.

Appellant maintains that, regardless of whether she was going to the bathroom or was getting a drink, her injury was compensable because her fall occurred on the premises of the hotel while she was performing employment services. She asserts that the real issue is whether an employee who is attending a mandatory, out-of-town meeting, is performing employment services while obtaining a refreshment on the premises of the seminar site during a break.

In short, we affirm the Commission because of the conflicting proof presented regarding how the injury occurred. There was evidence that appellant fell in three different places: the hallway of the hotel, at an outside vending machine by the pool, and in the parking lot. Appellant attempts to gloss over the different versions of how her injury occurred. She would have us hold that, as long as there is conflicting evidence of how an injury occurred, any of which would render the injury compensable, she has met her burden of proof. However, appellant was obliged to prove by a preponderance of the evidence that she sustained a compensable injury, identifiable by time and place, that arose out of and during of the course of her employment. Ark. Code Ann. ยง 11-9-102(4)(A) (Supp. 2003). She failed to persuade the Commission that her injury occurred under compensable conditions.

The Commission adopted the ALJ's finding that appellant was not a credible witness, and the record provides ample support for such a finding. Further, even discounting the conflicting testimony of appellant's coworkers, appellant's own testimony and medical evidence is replete with conflicting testimony regarding how she fell, which portions of her body sustained the impact, and whether she fell during a scheduled or non-scheduled break. Finally, the cases appellant cites for support, Marie Caffey v. Sanyo Mfg. Corp., ____ Ark. App. ____ S.W.3d ____ CA 03-943 (March 10, 2004) and Privett v. Excel Specialty Prods., 76 Ark. App. 527, 69 S.W.3d 445 (2002), do not further her argument. Caffey and Privett are distinguishable on the facts because in those cases the employees were clearly performing employment services for their respective employers. Here, due to the varied and conflicting versions of appellant's injury, reasonable minds could conclude that the Commission could not determine how appellant's injury occurred, and thus, could not determine whether appellant was performing employment services. Accordingly, we affirm the Commission's decision.

Affirmed.

Robbins and Baker, JJ., agree.