CV's Family Foods, Benchmark Insurance Company, and Wausau Insurance Company v. Gloria Taylor

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CV'S FAMILY FOODS, BENCHMARK INSURANCE COMPANY, WAUSAU INSURANCE COMPANY

APPELLANTS

V.

GLORIA TAYLOR

APPELLEE

CA04-00320

NOVEMBER 17, 2004

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[F202289]

AFFIRMED

Karen R. Baker, Judge

Appellants challenge an award of benefits to appellee, Gloria Taylor. They claim that the Workers' Compensation Commission's decision that Ms. Taylor incurred a compensable injury on January 27, 2002, and is entitled to temporary total disability benefits and reasonably related medical treatment is not supported by substantial evidence. We find no error and affirm.

When reviewing a decision of the Arkansas Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Cooper Tire & Rubber Co. v. Angell, 75 Ark.App. 325, 58 S.W.3d 396 (2001). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The issue is not whether this court might have reached a different result from the Commission; the Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Horticare Landscape Mgmt. v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002).

Furthermore, the Commission has the duty of weighing medical evidence. Marshall v. Madison County, 81 Ark. App. 57, 98 S.W.3d 452 (2003). 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, supra (citing Ark. Code Ann. § 11-9-102(16)(A)(I)). Furthermore, 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.

Appellants' argument relies heavily upon the Commission's credibility determinations. Appellants argue that "the Commission found that the Appellee's testimony in regard to her neck injury was not credible but that her testimony in regard to her lower back injury was credible." They assert that appellee's testimony cannot be credible in part and not credible as to another part. Appellants urge this court to "consider the Claimant's testimony in comparison with that of her husband, her employer and with her medical records submitted herein to determine that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission."

Appellants' argument relies heavily on the credibility determination, and we must emphasize that the Workers' Compensation Commission is not required to believe testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 15 (1995). With that standard in mind, we review the evidence and the Commission's findings and conclusions.

The issues before the Commission involved injuries to two separate portions of Ms. Taylor's anatomy, her neck or cervical spine, and her lower back or lumbar spine. In a prior claim, Ms. Taylor contended she sustained a compensable injury to her lower back in an employment related incident. Appellant CV's Foods and its carrier at that time, Wausau Insurance Company, denied the claim. A hearing was held on this issue on April 30, 2002, and the Commission found that Ms. Taylor failed to prove entitlements to benefits.

In the case before us, the Commission acknowledged its prior decision finding that Ms. Taylor did not sustain a compensable injury to her lower back as a result of a specific employment-related incident on November 7, 1998, and found that the doctrine of res judicata prevented Ms. Taylor from relitigating the 1998 injury and the doctrine of collateral estoppel prevented appellants from relitigating the 1998 injury. The Commission found that the application of the two doctrines effectively prevented a finding that Ms. Taylor's current lower-back difficulties were in any way causally related to a previous injury to this portion of her body on November 7, 1998. Therefore, the question the Commission addressed was whether Ms. Taylor's current lower-back or spine difficulties were the result of a compensable injury occurring on January 27, 2002.

The medical evidence in the case revealed the existence of longstanding degenerative changes involving Ms. Taylor's lower back or lumbar spine. The record also shows that Ms. Taylor experienced substantial difficulties or symptoms with her lower back sufficient to require ongoing medical treatment for considerable period of time prior to January 27, 2002. Due to the ongoing treatment, Ms. Taylor was under the care and treatment of Dr. Harold Chakales at the time of the alleged compensable injury on January 27, 2002. Ms. Taylor had scheduled a follow up visit for these prior difficulties for January 30, 2002. This appointment was arranged prior to the alleged new injury on January 27, 2002.

At the January 30, 2002, appointment, Dr. Chakales noted a history of the employment-related incident on January 27, 2002. He also noted a substantial change in Ms. Taylor's lumber or lower-back symptoms following this new employment-related incident. Dr. Chakales noted the observation of new or different objective findings, indicative of a separate, recent or "acute" injury to Ms. Taylor's lower back or lumbar spine. These new findings took the form of muscle spasms and what he denoted as "true" sciatica. Furthermore, the medical records from Ms. Taylor's February 18, 2002, follow-up visit indicated new or different x-ray changes involving Ms. Taylor's lumbar spine, when compared with previous x-rays. Dr. Chakales interpreted the more recent x-rays as showing an "acute" mild compression fracture of the L3 vertebra and straightening of the lumbar lordosis. He also observed diminished reflexes in the lower extremities.

The Commission found that Dr. Chakales is a highly competent neurosurgeon with a great deal of expertise in the area of medicine associated with Ms. Taylor's difficulties. Dr. Chakales also had the opportunity to observe and evaluate Ms. Taylor both prior to and subsequent to the employment incident of January 27, 2002. His opinion on the issue of causation is clearly stated "within a reasonable degree of medical certainty" identifying the work-related incident as the most likely cause of the subsequently diagnosed injury. Furthermore, Dr. Chakales' reports and record also express the opinion that Ms. Taylor's healing period has not ended and that she is in need of further medical treatment. Accordingly, we cannot say that no substantial evidence supports the Commission's decision that Ms. Taylor had presented sufficient medical evidence to establish the actual presence or existence of a new acute physical injury to her lumbar spine separate and distinct from her pre-existing degenerative condition and is still within her healing period.

We next consider whether substantial evidence supports the Commission's decision that Ms. Taylor presented sufficient evidence to prove the occurrence of this specific employment-related incident. Regarding the specific work-related incident and the causal relationship between this incident and the injury to her back, Ms. Taylor testified that the incident occurred while she was having difficulty in her attempt to place frozen chickens in a particular place in the freezer. She testified that she raised her right leg, and shoved withher knee. Ms. Taylor stated that this action caused pain to shoot through her back and legs, and the resulting pain in her back and legs dropped her to her knees. Her husband testified that when she returned from work that night that her face was "real white" and she was moving slowly and favoring her right side. While the testimony of a party is never considered uncontradicted, this does not mean that it is to be simply disregarded. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). If such testimony is credible, it may be sufficient, in and of itself, to prove any fact it is legally competent to address. Id.

Given this testimony, we cannot say that there is not substantial evidence to support the Commission's decision and accordingly affirm.

Griffen and Crabtree, JJ., agree.