Richard Hawkins v. International Paper Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

RICHARD HAWKINS

APPELLANT

V.

INTERNATIONAL PAPER COMPANY

APPELLEE

CA04-194

October 13, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F110680]

AFFIRMED

Josephine Linker Hart, Judge

Appellant, Richard Hawkins, appeals from the denial of benefits by the Workers' Compensation Commission, arguing that there was not a substantial basis for the denial. Particularly, he argues that the Commission's finding that he did not suffer a neck injury arising out of and in the course of his employment was not supported by the record. Further, he contends that the Commission relied on contradictory evidence in reaching that conclusion. Also, he argues that the Commission should have given greater weight to the deposition testimony of the neurosurgeon who performed surgery on appellant's cervical spine regarding the nature of the surgery performed. We affirm.

In his deposition, appellant testified that on December 6, 2000, while working for appellee, International Paper Company, he hurt himself "throwing coils into the number 8 winder." Coils, or cores, he testified, are round tubes on which they roll paper. He stated that he felt a burning in his neck and the middle of his back. Though he was still hurting, he continued to work. Appellant also testified that he did not remember at what time he was injured or when he reported the injury. Records from appellee indicated that on December6 at 8:45 p.m., appellant reported that he strained his upper back pitching cores and that workers' compensation papers were completed. Appellant testified that he worked through December 24, that he did not return to work the next day because of an ice storm, and that while he was to report to work on December 28, he instead went to the emergency room because he was experiencing numbness in his hip and left leg. He stated that this was the first time he had these symptoms.

According to a "progress note" from Dr. Charles R. Watson dated January 2, 2001, appellant complained of neck, shoulder, and upper back pain as well as chronic low back pain. The note indicated that appellant, who had a cervical fusion in 1986, was doing "well until about a month ago." The note further indicated that he "began to have a constant dull aching pain, intermittent burning pain in his neck, shoulder[,] and upper back." The pain in his neck, shoulder, and upper back was also described as "sharp." According to the note, his "symptoms began 2-3 months ago," and that though spinal manipulation from a chiropractor initially helped, it later made his pain worse. The note did not mention any work-related injury.

A report from Dr. P.B. Simpson, Jr., dated February 5, 2001, indicated that in November of 2000, appellant twisted and injured his back, and he reported the injury to his supervisor and continued working. The record further provided that "somewhere around December 24-28 he re-injured himself and started having problems with numbness across the shoulder blades and going down into the legs." In his deposition, Dr. Simpson reiterated that appellant told him that he re-injured his back sometime around December 24 through December 28.

Medical records reflect that appellant previously underwent a cervical and thoracic spine study on February 18, 1998. Further, medical records and the deposition testimony ofa neurosurgeon, Dr. Marco A. Ramos, indicate that on July 11, 2001, Dr. Ramos performed surgery on appellant's cervical spine.

In an opinion considering appellant's claim for benefits, the administrative law judge concluded that appellant did not sustain a compensable neck or back injury on December 6, 2000. Further, the ALJ credited the deposition testimony of Dr. Simpson that the surgery performed by Dr. Ramos on appellant was for repair of a condition unrelated to any work injury. In so crediting Dr. Simpson's testimony, the ALJ gave less weight to Dr. Ramos's deposition testimony that the surgery was for the treatment of a work-related injury. The Commission adopted the ALJ's opinion. Appellant challenges these findings on appeal.

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 a specific incident and is identifiable by time and place of occurrence...." Id. 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 by "a preponderance of the evidence." Ark. Code Ann. §11-9-102(4)(E)(i) (Supp. 2003). Where the Commission denies benefits because the claimant failed to meet his burden of proof, we affirm if the Commission's decision displays a substantial basis for the denial of relief. Tucker v. Roberts-McNutt, 342 Ark. 511, 29 S.W.3d 706 (2000). The determination of the weight to be given the evidence and the resolution of any conflicts in the evidence are matters to be decided by the Commission. Id.

Appellant argues that the Commission's finding that he did not suffer a neck injury arising out of and in the course of his employment was not supported by the record and that the Commission relied on contradictory evidence in reaching that conclusion. We disagree. Appellant was seen in 1998 for neck pain. Dr. Watson's progress note of January 2, 2001, reflected that appellant was then seen for neck, shoulder, and upper back pain, and that his symptoms began two to three months earlier, which would have been in October or November of 2000. The note did not indicate that appellant reported a work-related injury to Dr. Watson. The note also provided that treatment by a chiropractor made his pain worse. Despite his claim that he was injured on December 6, 2001, appellant worked through December 24, 2001. Further, Dr. Simpson's report indicates that appellant "re-injured" himself during the period of December 24 through 28, 2001. Also, it was not until December 28, 2001, that appellant obtained any treatment. Thus, there is evidence that appellant's physical problems predated the December 6, 2001, event, and there is evidence that appellant injured himself after December 6, 2001. Given this evidence on whether appellant's injury arose out of or in the course of employment, we conclude that there was a substantial basis for the Commission's denial of benefits.

After reviewing various statements in Dr. Watson's progress note dated January 2, 2001, appellant argues this court should not give weight to the note. As previously stated, however, the determination of the weight to be given the evidence and the resolution of any conflicts in the evidence are matters left to the Commission. Finally, because appellant failed to establish the threshold requirement of an injury arising out of and in the course of his employment, we need not address appellant's argument that the Commission should have disregarded Dr. Simpson's deposition testimony that the surgery performed by Dr. Ramos on appellant was for repair of a condition unrelated to any work injury and that the Commission should have given greater weight to Dr. Ramos's deposition testimony that the surgery was for the treatment of a work-related injury.

Affirmed.

Bird and Baker, JJ., agree.