International Paper Company v. Clifford Wayne Harrell

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September 29, 2004








Olly Neal, Judge

Appellant International Paper Company (IPC) appeals from the decision of the Workers' Compensation Commission (Commission) reversing the Administrative Law Judge's (ALJ) finding that appellee Clifford Wayne Harrell failed to prove by a preponderance of the evidence that his back difficulties were causally related to his employment. Because substantial evidence supports the findings of the Commission, we affirm.

Appellee is employed at IPC as a maintenance worker. On April 16, 2002, appellee was assigned the job of precision alignment on a motor and pump assembly. While removing the pump, which weighed 75 to 100 pounds, appellee experienced a pain in his lower back. That afternoon, appellee notified his supervisor Thomas Hall of the injury. When asked by Hall how he was doing, appellee informed Hall that he was fine.

Subsequent to the April injury, appellant's back pain grew increasingly worse. Appellee noted that the "pain level changed in mid May. I started noticing my left hip and buttocks area having moderate pain." Toward the end of May and the first of June, appellee started having pain down his leg and numbness in his left foot.

On May 21, appellee went to see Dr. Jerry Harvey. A progress note of that visit indicated that appellee suffered from low back pain with L5 radiculopathy. Dr. Harvey prescribed appellee medication and bed rest and arranged for him to undergo an MRI examination. The MRI was performed on June 7, and indicated that appellee suffered from a possible lateral disc herniation at L4-L5 and diskal dehydration at L4-L5 and L5-S1. Thereafter, Dr. Harvey referred appellee to neurosurgeon P.B. Simpson.

Appellee saw Dr. Simpson on June 24. At Dr. Simpson's request, appellee underwent a CT scan on June 26, which confirmed the left paracentral herniation at L4-L5. Dr. Simpson operated on appellee's back on July 9 and released him to return to work on August 19.

Appellee sought payment of medical expenses, temporary total disability benefits from July 8, 2002 to August 26, 2002, and attorney's fees. Appellant contested the award of benefits, claiming that appellee did not suffer a compensable injury and that there was no causal connection between any accident at work on April 16 and appellee's development of symptoms in late May.

The ALJ determined that appellee failed to prove by a preponderance of the evidence that his back difficulties were causally related to his employment. The Commission reversed the ALJ's decision, and this appeal followed. On appeal, IPC argues that substantial evidence does not support the Commission's reversal of the ALJ's finding that appellee failed to prove by a preponderance of the evidence that he sustained a compensable injury.

In reviewing a decision of the Workers' Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission.  Magnet Cove Sch. Dist. v. Barnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003). These findings will be affirmed if supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.; Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Williams v. L & W Janitorial Inc., ___ Ark. App. ___, 127 S.W.3d 486 (2004). Furthermore, the Commission has the duty of weighing medical evidence. Id.

Under Arkansas Code Annotated section 11-9-102 (4)(A) (Supp. 2003), a compensable injury is defined in part as:

(i) An accidental injury causing internal or external physical harm to the body or accidental injury . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence.

A compensable injury must be established by medical evidence supported by objective findings. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003) (citing Ark. Code Ann. § 11-9-102(4)(D)). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Heritage Baptist Temple v. Robison, supra (citing Ark. Code Ann. § 11-9-102(16)(A)(I)). Further, medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Speculation and conjecture cannot substitute for credible evidence. Id. The burden of proof is on the employee and is as follows:

(i) For injuries falling within the definition of compensable injury under subdivision (4)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence.

Ark. Code Ann. § 11-9-102(4)(E) (Supp. 2003).

At the hearing, appellee's wife Andrea Harrell testified that she remembered appellee coming home from work on April 16 and telling her that he had hurt himself at work while lifting something. She testified that she knew of no problems to appellee's lower back or extremities prior to this incident. She noted that her husband continued to work until the surgery and that he also played softball for Watson Chapel Baptist Church. She testified that appellee would "say that he seemed to be doing better, and then it would get worse. Then he started having pains down his leg and in his right hip. This was probably the middle of May." She further testified that, following the surgery, appellee did not indicate that he was having any problems that interfered with his work or normal activities at home.

Appellee testified that he hurt his back at work on April 16 and that he reported the incident to Thomas Hall, his immediate supervisor. Appellee stated that he told Hall that he felt like he had pulled or strained his back in the process of changing a pump. Appellee noted that he worked as scheduled, thinking that his back would get better; however, the pain increased in May.

Appellee further testified that he saw Dr. Harvey in May of 2002 because of his progressive pain. Appellee also stated that he spoke on the telephone with Polly Sweet, the insurance claims representative for IPC and told her that he thought the injury on April 16 was just a strain, but that the pain never went away and would get better and then worse. He told her that he started noticing his left hip and buttocks area having moderate pain, and by the end of May and first of June, he started to have pain down his leg and numbness in his left foot. He also told Sweet that "all of a sudden one day I just woke up that morning and it seemed like I had pinched a nerve, or something," and that "I either slept wrong, or something. I've got an 18 month old boy that sleeps with me, so I sleep in odd positions." Appellee remembered telling Sweet that he was sleeping in a chair at work one morning, after being called in during the night and having to work two shifts, and woke up feeling worse. He also admitted to playing in three softball games for his church between April and July, but noted that "nothing happened during those games that made my back or leg condition worse."

The ALJ found that:

Sometime between June 7, 2002 (the date of the MRI) and June 24, 2002 (the date [appellee] saw Dr. Simpson), the adjuster, Polly Sweet, took a recorded statement from [appellee] in which he gave conflicting information about the duration of the pain (whether it was constant and worsening or whether it resolved prior to May 15, 2002) and the onset of the change in symptoms (when he awoke in bed or after napping in a chair at work).

[Appellee] reported an on-the-job back strain to both Dr. Harvey and Dr. Simpson but did not inform them about his sports activities or the change in symptoms after sleeping.

The burden is on [appellee] to establish a causal connection between his injury and his employment. The record shows several possible causes for [appellee]'s debilitating pain and need for surgery and therefore, I find [appellee] has not met his burden of proof by a preponderance of the evidence of record.

The Commission, however, determined that:

[IPC] has denied this claim because of what [appellee] said to the [IPC] claims adjuster in a telephone conversation in June of 2002. In what purports to be a transcript of that conversation, [appellee] was questioned about the onset of his symptoms and why he continued working for over a month following the injury in spite of the increasing symptoms. [Appellee] explained to the claims adjuster that he had attributed his problems to what he thought was a "pinched nerve." When asked what he meant by that term, the [appellee] likened his problem with the temporary discomfort experienced when someone sleeps in an odd position and wakes up with back or neck pain.

[IPC] and the [ALJ] interpreted this explanation to mean that [appellee] injured his back while he was sleeping. The [ALJ] stated that the conflict between [appellee's] testimony and the recorded statement was the "... most damaging evidence against [appellee's] case that adversely affected my assessment of [appellee's] credibility."

We believe that the [ALJ's] evaluation of [appellee's] credibility is flawed, and that [appellee's] testimony as to the accident and his symptoms is credible. All of the [appellee's] statements regarding his injury, the type of work he was performing, and his prompt reporting of the incident are all recorded and documented by [IPC's] records. Further, the medical evidence regarding the nature and extent of the claimant's injury demonstrates that it is the type of injury associated with the work [appellee] was performing on April 16, 2002. The only challenge to [appellee's] credibility is based upon statements he allegedly made to the claims adjuster when she interviewed him in June of 2002. In evaluating this statement, we are mindful of the fact that it was an informal interview given [to appellee] without benefit of counsel. A careful reading of [appellee's] statements indicate that he was merely explaining how one got a "pinched nerve," and not intending to imply that he had injured his back while sleeping.

In short, we find that [appellee] provided credible testimony that he injured his back on April 16, 2002, and that the incident of that date resulted in a herniated disc at L4-L5. Any other finding would be contrary to the greater weight of the evidence. Accordingly, we reverse the opinion of the [ALJ].

As substantial evidence supports the decision of the Commission, we affirm.


Pittman and Gladwin, JJ., agree.