Thomas Rodgers v. Lomanco, Inc. and Risk Enterprise Management

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ca04-345

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

THOMAS RODGERS

APPELLANT

V.

LOMANCO, INC. and RISK

ENTERPRISE MANAGEMENT

APPELLEES

CA 04-345

DECEMBER 1, 2004

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F109113]

AFFIRMED

John B. Robbins, Judge

Appellant Thomas Rodgers brought a workers' compensation claim against appellee Lomanco, Inc., arguing that he sustained a work-related injury to his lower back that entitled him to related medical expenses and temporary total disability benefits. After a hearing, the Workers' Compensation Commission found that Mr. Rodgers failed to prove that he suffered a compensable injury. Mr. Rodgers now appeals, arguing that the Commission's decision is not supported by substantial evidence. We affirm.

The standard of review for appeals from the Workers' Compensation Commission is well-settled. On appeal, this court will view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission's decision

displays a substantial basis for the denial of relief. Id. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. The issue is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, then we must affirm. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999). The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Green Bay Packing v. Bartlett, supra.

At the hearing, Mr. Rodgers testified that he is fifty years old and has a tenth grade education. Mr. Rodgers testified that he has worked for Lomanco for twenty-seven years. He stated that his job requires him to work on "big rigs and trailers" and involves heavy lifting. Mr. Rodgers indicated that he has experienced back problems for a number of years and was seen by Dr. Thomas Rooney in 1998. He also visited his family physician, Dr. Phillip Tracy, on various occasions complaining of back problems.

Mr. Rodgers testified that he started experiencing more problems with his back in June 2001, and that Dr. Tracy ordered an MRI. Despite his pain, Mr. Rodgers continued to work. Mr. Rodgers recounted a specific injury at work that allegedly occurred on July 23, 2001. He stated that, on that day, he was underneath a forklift inspecting it, and when he tried to get up he felt a sharp pain in his back and down his legs. Mr. Rodgers stated that he stayed on the ground for a minute, and then walked around but did not feel better. Mr. Rodgers informed his supervisor of the incident, and on that day he was sent for treatment and underwent physical therapy. Mr. Rodgers maintained that, "The pain in July 2001 was totally different from the mid-back pain I had some years ago," and stated, "To my knowledge, prior to 2001, I never hurt my back at work."

Subsequent to July 23, 2001, Mr. Rodgers took off work and visited various doctors. He visited Dr. Steven Cathey on August 7, 2001, and later came under the care of Dr. Yeshwant Reddy, who administered epidural steroid injections. On June 5, 2002, after conservative treatment failed to help his condition, Mr. Rodgers came under the care of Dr. Richard Jordan. Dr. Jordan diagnosed herniations at L4/5 and L5/S1, and on July 10, 2002, performed fusion surgery on both levels. Mr. Rodgers testified that the surgery has improved his condition. However, he stated that he remains unable to return to work and has been off work since July 23, 2001, with the exception of a one-month period that he worked between January and February 2002.

In this case there were two MRIs performed. The first was conducted on July 2, 2001, and the report indicated discogenic changes at L4/5 and L5/S1, as well as mild arthritic changes throughout the lumbar spine. The second MRI was performed on March 8, 2002, and the report indicated degenerative disc disease at L3/4, L4/5, and L5/S1, as well as a small right paracentral disc herniation at L4-5 and mild disc bulge at L5/S1.

Dr. Cathey testified in a deposition that when Mr. Rodgers first visited him on August 7, 2001, his primary complaint was long-standing back pain. At that time, Dr. Cathey reported that Mr. Rodgers began experiencing severe lower back pain on June 26, 2001, although Mr. Rodgers could not remember any specific incident that precipitated his pain. Dr. Cathey reviewed the July 2, 2001, MRI and diagnosed degenerative disc disease at L4/5 and L5/S1. Dr. Cathey detected muscle spasms and thought that Mr. Rodgers had suffered a musculoskelatal injury superimposed on pre-existing degenerative lumbar disc disease and spondylosis. In Dr. Cathey's final report dated March 22, 2002, he stated, "In my opinion, Mr. Rodgers had reached maximum medical improvement at the time of his last evaluation here on December 11, 2001. I do not believe he has sustained any permanent impairment as a result of the industrial injury of June 26, 2001."

Dr. Cathey indicated that Mr. Rodgers has had long-term degenerative back problems, and stated that there is no way to tell what has caused this, "except for wear and tear and aging." Dr. Cathey testified that there was no change between the July 2, 2001, MRI and the March 8, 2002, MRI, and that they "are basically showing the same degenerative process." Dr. Cathey thought that Mr. Rodgers sustained a sprain/strain superimposed on degenerative changes that had resolved by December 11, 2001. Dr. Cathey gave the opinion that the surgery performed by Dr. Jordan addressed pre-existing problems.

For reversal of the Commission's order denying compensability, Mr. Rodgers argues that there is no substantial evidence to support the findings that he did not suffer a compensable injury by gradual onset or a specific incident. Mr. Rodgers' argument focuses on his contention that he suffered a specific injury on July 23, 2001, and that his injury aggravated or combined with his pre-existing back condition to cause his current disability. In Jim Walter Homes v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003), we held that a pre-existing disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Mr. Rodgers notes that Lomanco originally accepted his claim as compensable, and argues that he is entitled to continuing benefits including those associated with the back surgery performed by Dr. Jordan.

We hold that the Commission's opinion displays a substantial basis for denying relief. The Commission did not find Mr. Rodgers to be a credible witness, and failed to credit his account of the alleged July 23, 2001, incident. The Commission noted that, in Dr. Cathey's August 7, 2001, report, the accident date was given as June 26, 2001, and further indicated that Mr. Rodgers recalled no specific incident. The alleged accident occurred after the first MRI but before the second MRI, and Dr. Cathey indicated that the MRIs revealed similar results. Thus, the Commission concluded that the condition causing the need for surgery predated the alleged July 23, 2001, incident.

In addition, there was other evidence to support the Commission's decision. In May 1998, Dr. Rooney reported that Mr. Rodgers complained of a long history of lower back pain. On October 16, 2001, Dr. Reddy reported that Mr. Rodgers "realizes that at present this is not a work-related claim." And in Dr. Cathey's deposition, he related that Mr. Rodgers' problems are indicative of long-standing degeneration, and that it is impossible to say what caused it.

The Commission determined that Mr. Rodgers failed to meet his burden of proving a causal connection between his employment and lower back condition for which he is being treated. Viewing the evidence in the light most favorable to the Commission's decision, as we are bound to do, we cannot say that the Commission's decision was erroneous.

Affirmed

Bird and Roaf, JJ., agree.