Tinamarie Baptista v. Kroger Company and RSKCO Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

TINAMARIE BAPTISTA,

APPELLANT

V.

KROGER COMPANY AND RSKCO SERVICES,

APPELLEES

CA04-238

NOVEMBER 3, 2004

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. F200348,

AFFIRMED

Sam Bird, Judge

Tinamarie Baptista appeals the denial of her claim for workers' compensation benefits for a neck injury that ultimately required a cervical fusion in April 2002. Baptista, who had undergone a similar surgery for a non-work related injury early in 2001, contended that in September of 2001 she suffered a gradual-onset injury attributable to her employment with appellee Kroger Company. The Workers' Compensation Commission adopted and affirmed the decision of the administrative law judge, including his findings that Baptista failed to prove that her injury was caused by rapid and repetitive motion, and failed to prove that the work-related injury was the major cause of her disability [or] need for treatment. On appeal, Baptista contends that substantial evidence does not support the Commission's finding that she did not sustain a compensable gradual-onset injury to the neck caused by rapid, repetitive

motion. We disagree; therefore, we affirm the Commission's opinion.

An injury caused by rapid repetitive motion, causing internal or external physical harm to the body, and arising out of and in the course of employment may be a compensable injury if it is also proven to be the major cause of the disability or need for treatment. See Ark. Code Ann. §§ 11-9-102(4)(A)(ii)(a) and (4)(E) (Repl. 2002). The determination of whether there is a causal connection between an injury and a disability is a question of fact for the Commission to determine. Oak Grove Lumber v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998).

Evidence at the hearing before the administrative law judge included testimony by Baptista, testimony by management personnel from Kroger, Baptista's medical records, and the deposition testimony of Dr. Richard Peek. The evidence revealed that Baptista began working for Kroger in 1996, where as part of her duties she unloaded trucks, stocked frozen foods, and unloaded and stocked dairy products. In a non-work related incident of January 2001, she injured her neck when she slipped on ice outside of her car after she was involved in a wreck.

Baptista testified regarding other injuries. In October 2001 she fell and fractured some ribs while feeding her puppies; in June or July of 2001 she was in an automobile wreck; and she fell in the back of a truck while moving items into a new residence in 2001. She denied that any of these incidents increased her arm and neck pain or that they required medical treatment. She acknowledged being in an abusive relationship with a boyfriend, and acknowledged that he hit and pushed her. She testified that her boyfriend assaulted her between January and September 2001 or in 2000.

Baptista also testified that lifting was required in all the departments she worked in at her job. She unloaded milk from trucks, stacking it off of pallets and onto skids, almost fifty pounds to a case, four gallons to the case, and ninety-four cases to a pallet; she also put the milk in the walk-in coolers so customers could get it. She followed the same process with frozen foods, helping unload pallets and bringing the product onto a cart to get in to the sales floor for stocking. She had to do the frozen food on her own when her co-worker Jim Washburn took leave following surgery in September 2001, and she had to take over the milk department the same month when someone quit. On September 17, 2001, she went to the emergency room with tingling arms and bad chest pain. She was put on light duty for five days and told to see her family doctor. He sent her for an MRI of her neck, and she was referred to other doctors. She attributed her neck getting worse because of the lifting, the hours she was working, and the continuous overhead motion.

Baptista stated that she was aware of the procedure for reporting accidents at Kroger, and that she had previously used the procedure to report a spider bite. She testified that she told all the managers at the store that she had to go to the emergency room on September 17, 2001; that she gave each of them a copy of her work restrictions; and that none of them attempted to comply with the restrictions or required her to fill out a report of a work-related injury. She said that at the end of December 2001, things came to a head when she was receiving injections in her neck and she was taken completely off work. She said that she filled out reports in December 2001 after telling Sam King, the store manager, that she needed to complete a work-related injury report.

Baptista acknowledged being a smoker, having pain at the end of a shift in June 2001, and taking pain medication until July 2001. She said she was not sure exactly when her September 2001 injury occurred, that it had happened over several days, and that the pain seemed higher than where she had the surgery. She said that her work in September 2001 involved lifting fifty pounds of milk overhead all day long for multiple days, for an entire shift, up and down all day. She said that on September 17, 2001, she woke up with her arms and neck hurting and tingling. She said that after she returned to work in June 2001 she had pain in her neck at the end of a shift, that she was sore in July and August as well, but that the pain was different in September 2001 because she had severe left and right arm pain.

Sam King, a member of Kroger management, explained that frozen foods were unloaded three times a week from an eighteen-wheeler onto a pallet jack, and were either put in the storage freezer or taken to the sales floor. Also three times a week, the milk was removed from trucks and put into the milk cooler; the cartons, about a foot tall, were stacked six high on a pallet, four gallons for each nine-and-a-half-gallon-containers per layer.

King testified that he went to see Baptista in the hospital after her neck surgery in February 2001, and that she returned to work without restrictions in June 2001. He said that he could not recall her saying anything about a September 2001 injury, but that he was aware from comments she made that she was suffering from neck pain at that time. He testified that either he or other members of management would be the ones to whom accidents would be reported. He said that it was only in January 2002, when Baptista came to him to report that the neck problems were work-related and that she wanted to file a claim, that he became aware of her allegation that her neck had been hurt at work; he testified that when she came to see him she told him that she was not sure when the injury happened but that it was probably in September or October of 2001.

Jim Washburn, the dairy manager of the store, testified that Baptista complained of neck pain from time to time after returning to work in June 2001. Baptista told him about her boyfriend pushing her across a room and off a porch after her first neck surgery in January 2001, and Washburn helped her move to another residence in July 2001 to get away from him. Washburn testified that she said her arm bothered her when she went to the emergency room in September 2001, and that one time he took her back to Mayflower from the emergency room.

James Smith, the store's grocery manager, testified that he was aware of Baptista's first surgery in February 2001, and that she continued to complain of neck pain after returning to work from that surgery in June 2001. The parties stipulated that Smith's testimony would essentially be repeated by Daisy Fowler, the deli manager, and by Charles Tyler, the meat manager. They would testify that Baptista consistently complained of neck pain after coming back to work in June 2001, that she did not report to them going to the emergency room in September 2001, and that they attributed her neck pain to the prior surgery or to one of the car accidents.

Dr. Richard Peek, an orthopedic surgeon specializing in the spine, wrote in a letter of October 31, 2002, that the major cause of Baptista's need for a second surgery was repetitive lifting at her job. Dr. Peek testified by deposition that he first saw Baptista on March 7, 2002, for complaints of pain in the neck and both arms. Dr. Peek was aware at this visit of Baptista's earlier neck injury and anterior cervical neck fusion at C5-6 by Dr. Dickens, followed by Dr. Zack Mason's care due to Dickens's death during her recovery period, and her release back to work by Dr. Mason in June 2001. Dr. Peek stated that Baptista described to him a lifting injury in September of 2001 with pain that started while she lifted twenty to sixty pounds of dairy and frozen products throughout the day for a few days. Dr. Peek stated that he was not aware that Baptista waited tables at the Country Club of Little Rock in September 2001, or that she fell over a dog and fractured her ribs in January 2002, but he said that ribs usually heal within six weeks.

Dr. Peek testified that he knew the fusion performed by Dr. Dickens had failed because x-rays done in Peek's office showed a pseudoarthrosis, or a false joint, at C5-6 with marked motion, meaning that the plug of bone that Dickens put in either did not incorporate or had broken loose. Dr. Peek gave his professional opinion that Baptista had a repetitive injury to the area of her first surgery, which probably had never totally united but had healed or mended enough for Dr. Mason to return her to work, and that she had gone from a fairly stable condition to one she could not tolerate. Based on her history, Dr. Peek said that the separation occurred or got worse with her repetitive and overhead lifting. He said that he performed surgery because her fusion had come loose, she was developing increasing stenosis at the foramens, a myelogram showed cutoff of the nerve root, and she had bilateral arm pain and an unstable neck. Dr. Peek stated that it was possible for a fusion to become separated as a result of a car accident, after some sort of a fall, or a blow to the head; and that a fusion could separate or might not completely heal if a patient were a smoker. He stated that she obviously had improved enough to be released to return to work in June 2001. He opined that her work at Kroger was the cause of her separation, "based on her history and the type lifting, up to sixty pounds overhead."

Baptista argues on appeal that she established that her job duties required rapid, repetitive lifting, and that testimony of the three managers corroborated the fact that they knew she was having problems doing her job because of neck pain from September 2001 forward. She also submits that Dr. Peek's deposition testimony and his letter of October 31, 2002, conclusively demonstrate that she met her burden of proving that her job activities were the major cause of her need for treatment and disability.

We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if the decision is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). Questions concerning the credibility of witnesses and the weight to begiven their testimony are within the exclusive province of the Commission. Ellison v. Therma-Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). We defer to the Commission's findings on what testimony it deems to be credible, and it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Furthermore, the Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Smith-Blair v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).

The Commission's opinion included the following discussion and findings:

The preponderance of the evidence in this case reflects that the claimant did not sustain an injury by rapid and repetitive motion. There is no testimony from any witness that the claimant's work was "rapid." The description given by both the claimant and Mr. King [does] not fulfill the "repetitive" element either. The claimant, in one day, performed many different functions requiring many different movements. She might stock items, unload a truck, load a pallet, stock shelves, straighten up dairy cases, help with the displays, or keep the frozen food coolers neat.

Not only is the "rapid and repetitive" motion element not satisfied, but the claimant is unable to establish the major cause element. The claimant points to the deposition testimony of Dr. Richard Peek for the support of the major cause element. However, when closely reviewing Dr. Peek's deposition, his basis for the major cause opinion is simply insufficient. It is obvious that Dr. Peek's opinion was based primarily on the history given by the claimant.

The Commission ruled that it was not bound by a doctor's opinion based largely on facts related by a claimant where the claimant's testimony was less than determinative. The Commission also noted evidence that Baptista's pain continued after her return to work following surgery in June 2001. Specifically, the Commission noted that she was still taking pain medication in July 2001, that witnesses testified of her continual complaints of neck pain after June 2001, that she had other accidents of such a nature to have harmed her neck, and that she was a smoker. On the issue of reporting her injury, the Commission found Baptista's credibility to be very questionable and found the testimony of other Kroger employees to be credible; the Commission therefore found that Baptista never reported a work injury to any Kroger employees until late December 2001.

We hold that the findings of the Commission, which were based on its determination of the weight of the evidence and the credibility of the witnesses, are supported by substantial evidence. The Commission's findings that Baptista failed to prove a compensable injury caused by rapid and repetitive motion, and failed to prove that her work-related injury was the major cause of her disability or need for treatment, constitute a substantial basis for the denial of the claim.

Affirmed.

Hart and Baker, JJ., agree.