Robert Powell v. Daymark Group, Inc. and American Protection Insurance Company

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ca04-319

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CA04-319

November 10, 2004

ROBERT POWELL

APPELLANT

AN APPEAL FROM THE ARKANSAS

v. WORKERS' COMPENSATION COMMISSION [F001850]

DAYMARK GROUP, INC., EMPLOYER,

AND AMERICAN PROTECTION, INS.

CO., CARRIER

APPELLEES AFFIRMED

Olly Neal, Judge

Appellant Robert Powell appeals the decision of the Workers' Compensation Commission (Commission) denying his workers' compensation claim. On appeal, appellant asserts that the Commission's finding that his disc injury was not the result of a specific incident is not supported by substantial evidence. Appellant also asserts that he was engaged in employment services when he sustained his disc injury. We affirm.

In November 1999, appellant worked for appellee Daymark as an OTR truck driver. On November 30, 1999, appellant was driving a load from Chicago to Los Angeles. He stopped for the night at a truck stop in Joplin, Missouri. After finishing his paperwork, appellant said that he got up so that he could climb into the sleeper compartment, and that as he climbed into the sleeper compartment, he caught his leg on the gear shift and ended up falling into the sleeper compartment. Appellant said that he experienced discomfort while sleeping and awoke the next morning feeling as though he had a crick in his neck. Despite his discomfort, appellant drove to Moriarty, New Mexico. Appellant testified that when he awoke the following morning he was in "excruciating pain." He said that he reported this to Kathy Shepard, the immediate dispatcher, and was told to meet another driver in Gallup, New Mexico, in order to switch loads. After switching loads, appellant drove to Daymark's cold storage facility in Rochelle, Illinois. Appellant said that, once in Rochelle, he sought treatment in the emergency room at Rochelle Community Hospital and was given pain pills. The emergency room records indicates that appellant informed the staff that "two days ago he woke up with pain in the posterior aspect of his left shoulder and a little under the left clavicle." Upon release from the hospital, appellant returned to work. He subsequently took a two-week vacation.

During his vacation, appellant said that he sought treatment at the veterans' hospital in Chicago, where he received some pain medication. At the end of his vacation, appellant returned to work. While delivering a load to Forth Worth, Texas, appellant began experiencing "excruciating" pain in his neck, so he drove to the terminal in Grand Prairie, Texas. Once at the terminal, appellant said that he reported his pain to "Brenda," who worked the night shift. Afterwards, appellant drove to Mesquite, Texas, and stopped at a truck stop for fuel. Appellant described his pain as being so bad that he "could hardly hold the pumps." He said that he called the night dispatcher and asked for an ambulance. Appellant was taken by ambulance to Mesquite Community Hospital. At the hospital, appellant received a shot and prescriptions. Appellant stayed overnight in Mesquite, and then drove a load to Atlanta. In Atlanta, appellant called the home office and talked to Pam Love. Appellant said that, upon learning of his prescriptions, Ms. Love instructed to him to stop driving. Appellant was furnished a bus ticket home.

Upon returning home to Chicago, appellant was treated for a cervical disc injury by Dr. Javad Hekmat-panah, a neurosurgeon at the University of Chicago. In a note datedJanuary 21, 2000, Dr. Hekmat-panah writes that appellant informed him that his pain began November 30, 1999, and that "he does not know why or how it started." In February 2000, appellant had surgery for a herniated disc at the C6-C7 level. Appellant subsequently filed a claim for workers' compensation benefits. Daymark controverted appellant's claim and a hearing was held before an administrative law judge (ALJ).

At the hearing, appellant admitted that he never mentioned falling into the sleeper compartment to anyone at Daymark and that he also failed to mention his fall to any of the doctors he visited. Appellant said the reason for this omission was that he was in too much pain. Appellant believed that the origin of his neck pain was the fall he sustained while getting into the sleeper compartment. He denied having any previous back trouble.

Marybel Baker testified that, in 1999, she received Daymark's workers' compensation claims. She said that on December 30, 1999, she learned that appellant was alleging a neck injury. Ms. Baker stated that when she questioned appellant, he made no indication that he had an accident or injury. She said he told her "he woke up sometime in November with a crick in [his] neck." She recalled striking the words "accident" and "injury" from the report because appellant could not explain how his pain started. Ms. Baker said that appellant never told her about getting his leg caught in the gear shift while climbing into the sleeper compartment.

Kevin English, claims representative for Kemper Insurance Company, testified that he was the claim adjuster for appellant's workers' compensation claim. He said there was no record of an incident involving appellant getting into his sleeper compartment. Mr. English said, "The story was that [appellant] had pain brought on by no specific activity in November to the extent he had to have treatment." Mr. English maintained that appellant never mentioned a specific incident and had only said he had been in pain since November29. He said that the lack of a specific incident resulted in the denial of appellant's claim.

The ALJ found that appellant failed to prove that he sustained a compensable injury that was the result of a specific incident arising out of and in the course of his employment. The decision of the ALJ was affirmed and adopted by the full Commission. From that decision comes this appeal.

In reviewing an appeal from the Commission, we view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Systems Contracting Corp. v. Reeves, Ark. App. , S.W.3d (March 3, 2004). Substantial evidence exists if reasonable minds could reach the same conclusion as the Commission. Swearengin v. Evergreen Lawns, Ark. App. , S.W.3d (Feb. 11, 2004). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Williams v. L & W Janitorial Inc., Ark. App. , S.W.3d (Feb. 4, 2004). In making our review, we recognize that it is the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Id.

The employee has the burden of proving a compensable injury. Watson v. Tayco, Inc., 79 Ark. App. 250, 86 S.W.3d 18 (2002). Arkansas Code Annotated section 11-9-102(4)(A) (Supp. 2003) defines a compensable injury as "an accidental injury ... arising out of and in the course of employment and which requires medical services or results in disability or death." Section 11-9-102(4)(A) further provides that an accidental injury is an injury that is caused by a specific incident and is identifiable by time and place of occurrence.

Appellant said that, due to the amount of pain he was experiencing, he repeatedly failed to tell his employer and doctors about the November 29 incident. It was within the Commission's province, as the trier of fact, to choose not to believe appellant's testimony. Therefore, based on the evidence, the Commission could find that appellant was unable to prove that his injury was the result of a specific incident. We cannot say that the Commission's decision was not supported by substantial evidence. Furthermore, because appellant failed to prove a compensable injury caused by a specific incident, we do not address whether appellant was performing employment services. Affirmed.

Stroud, C.J., and Gladwin, J., agree.