J.D. & Billy Hines Trucking, Inc. and The Zenith Insurance Company v. Danny Hebert

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

J.D. & BILLY HINES TRUCKING, INC. and THE ZENITH INSURANCE COMPANY,

APPELLANTS

V.

DANNY HEBERT,

APPELLEE

CA04-520

DECEMBER 15, 2004

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. F209479,

AFFIRMED

Sam Bird, Judge

J.D. & Billy Hines Trucking, Inc., appeals a January 23, 2004, decision of the Workers' Compensation Commission that awarded benefits to Danny Hebert, a former short-haul driver for the company. The Commission's decision reversed a denial of benefits by the administrative law judge, who found that Hebert had failed to prove that his injury was caused by a specific incident identifiable by time and place of occurrence. On appeal Hines Trucking contends that no substantial evidence supports the Commission's findings that Hebert sustained a compensable accident in July 2002 and is entitled to temporary total disability benefits. We find that substantial evidence supports the findings of the Commission; thus, the decision is affirmed.

Specific Incident Arising out of and in the Course of Employment

In its first point of appeal, Hines contends both that substantial evidence does not support the Commission's determination that Hebert sustained a compensable injury due to a specific incident arising out of and in the course of his employment, and that his account of how the alleged accident occurred lacks credibility. An injury is compensable if it results from an accidental incident causing internal or external physical harm to the body ... 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 that is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002).

Hebert was the only witness to testify that while making a short-haul run on July 16 or 18, 2002, he hit his head forcefully against the ceiling of his truck. The Commission found that Hebert's uncontroverted testimony established that he had reported to the dispatcher within a day of the incident that his truck needed to be repaired "because it rode rough and caused him to hit his head." Recognizing that he filed no formal report of injury until August 13, 2002, the Commission noted our ruling in Services Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), that the statutory definition of a compensable injury does not require timely reporting of an injury or receipt of medical treatment within a specified period. The Commission found corroboration of Hebert's testimony from the following evidence: on August 7, 2002, Hebert wrote in limited space on a chiropractor's questionnaire that the cause of pain was due to a "new truck"; Dr. Vermont's notes of August 13, 2002, described the incident in more detail; and Hebert further described the cause of his injury on Form N, which was submitted to the Commission.

After discussing the foregoing evidence, the Commission concluded:

We, therefore, credit claimant's testimony that he sustained injuries to his neck, shoulder, and back when he bumped his head forcefully against the ceiling of the truck.

We further find that the record contains objective findings establishing claimant's injury as evidenced by Dr. Primeaux's observation of swelling and muscle spasms in claimant's right shoulder, and Dr. Vermont's observation of muscle spasms in claimant's right neck and upper back between the shoulder blade and the spine.

The Administrative Law Judge's conclusion that "[t]he maintenance records and testimony of the witnesses reflect that respondent was unable to confirm that the vehicle in fact rode rough, as asserted by the claimant or to find a mechanical problem with the vehicle which could serve as a source of a rough ride due to the suspension system," ignores facts in the record. Respondent's witness, David Jackson, testified that repairs were made to the suspension and he could not confirm whether the repairs had been made prior to when he test drove the truck. Work orders in the record confirm that repairs were made to areas involving the suspension on at least three occasions from August 1st to August 13th. Wayne Morrow, a witness for respondent, testified that he test drove and inspected the truck on August 13th when respondent's safety director, Betty Cornelius, contacted him regarding investigation of the incident and that he did not find any problems with the suspension or notice that the truck was riding rough. This investigation, however, took place after the truck had been serviced for suspension related repairs.

For these reasons, we therefore find that claimant proved by a preponderance of the evidence that he sustained a compensable injury on or about July 16, 2002, or July 18, 2002.

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 be given 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. Id. While credibility calls are for the Commission to make and its findings are insulated to a certain degree from appellate review, its decisions are not, and should not be, so insulated that it would make appellate review meaningless. See Lloyd v. United Parcel Serv., 69 Ark. App.92, 9 S.W.3d 564 (2000). Finally, 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).

Hebert testified that he was hired as a short-haul truck driver for Hines in April of 2002, and at first was assigned an older spring-ride truck. He said that he had no problems with his neck or back until he was given a newer truck on July 7 or 8: it was a total air-ride, 1996 Western Star. Regarding this truck, he testified:

I did not feel like it was a better truck. It definitely wasn't. When I started to drive the truck, I had several problems but the main thing was that it rode real rough. Even the smallest bump would throw you around in that seat and you would bounce hard. It was like you would bottom out and it was just totally rough....

I don't know what was causing the truck to ride rough. I knew it had to be in some of the suspension somewhere.... I drove with my seatbelt on; bouncing around inside the truck, I would strike my head on the ceiling. It happened pretty much every day, several times a day.

Hebert testified that he reported problems with the truck in writing and by telling people in the shop. He said that in an incident that occurred between July 16 and 18, he hit the roof "extra hard" one time. He said that before this incident of hitting his head really hard, he had told the shop people about the rough ride and other things such as electrical problems. He said that he told them it was extremely rough, that he wrote it up several times but not every time, and that most of the people told him they checked it out but could not find anything wrong.

At the time of the hearing, Hebert stated that he was 5'6" and weighed 200 pounds. Reviewing his deposition testimony, he said that he typically drove his truck with the seat adjusted "vertically ... adjusted lower" so that his hips, thighs, and knees were parallel to the floorboard, so that his feet could make a good connection with the pedals. He also said in his deposition that he typically drove with the seatbelt latched, coming across his left shoulder and down his right side, and that the clearance between his head and the ceiling was twelve to fourteen inches. Hebert said in his deposition that, after hitting his head real hard on the one occasion, the next time he hit his head was probably when he went to the mill at Hope, perhaps on the same day. He testified that at the mill's scales, he pulled over a pothole while driving five to ten miles an hour, causing him to strike his head, and that he probably had struck his head ten to fifteen times while pulling up on the scales at Hope, always at five to ten miles an hour.

Hebert stated that he did not know exactly what caused him to hit the roof so hard in the incident between July 16 and 18, such as the way the truck was loaded or the way he hit a bump. He said that, in addition to driving over the scales at Hope, the cracks in the road were really rough, and there was a bridge at the county line where it was really bad. He testified that at first he had "a little bit of neck pain, up in the right shoulder," it was not bad right then and he had thought he would get over it, it kept getting worse, he continued to work afterwards and his symptoms would ease up when he was off for a day, but by the end of a week it was so bad that he "couldn't go anymore."

Hebert testified that he talked to the shop people that day or the next day, telling them that the ride was too rough and had to be fixed. He testified that he also told the dispatcher, Mike Fisher, that he had been hitting his head. He testified that he had been telling Fisher from the time he got the new truck how rough it was, and that he was sure he told Fisher that he had hit his head the day after it happened. He testified that he did not think that any changes were made to the truck at that point, but that after he talked to Wayne Morrow, who "was over the shop," Morrow checked it and said something about "brackets or something." A complaint form signed by Hebert on August 1, 2002, states, "ABS light stays on, turn signal pointer gone, and truck rides bad." Hebert testified that he had also made complaints before the date of this form. He said that some repairs were made to the vehicle after he complained in writing, but that the rough ride did not change. He stated, "They never did fix the rough ride while I was in it. If they were doing things to try to fix it, it wasn't working." He testified that he talked to several people in the shop besides Morrow, and that he heard shop mechanics say after he was put on light duty that they had found several parts that they repaired. He testified that Morrow told him they "found stuff," but Hebert was unable to remember whether Morrow told him that things were fixed. Hebert stated his understanding that Morrow found something wrong. Hebert testified that he had heard about older bolts on the cross member being removed and replaced, and he testified that he thought from his conversations with Morrow that replacing the bolts could have something to do with the air-ride system.

Hebert testified that he continued driving the truck until August 7, 2002, when he called the dispatcher to say that he was going to the doctor instead of to work because he was hurting "real bad." On that date Hebert went to a chiropractor and wrote on the office questionnaire that the cause of his pain was "new truck." The chiropractor, Dr. Chris Primeaux, treated Hebert for neck and shoulder pain on August 7, 8, 9, and 12, releasing him from work the first three days. In a questionnaire of November 11, 2002, Dr. Primeaux noted swelling and muscle spasms in the upper thoracic area, right neck, and upper back between the shoulder blade and spine.

Hebert formally reported his injury on August 13, 2002, when Hines's safety director contacted him. The first report of injury, dated August 13, states that Hebert "was driving a truck when his head hit the ceiling of the truck, resulting in pain to his head, neck and back areas." On Form N filed with the Commission, Hebert stated that he injured his back, and that the cause of his injury was "Rough Riding Truck."

David Jackson, the tire manager for Hines, testified that he drove Hebert's truck to check it out after Hebert said that it had a rough ride. Jackson said that he drove it with an empty trailer on the interstate and on a two-lane road, but that he had a smooth ride and could find nothing wrong. He reported this to Hebert, who told him that the truck rode rough all the time. Jackson testified that he and a technician found loose cab suspension bolts, which are cross members, when they drove the truck to investigate a complaint about "popping." He drove the truck without a trailer after Betty Cornelius of the safety department asked him to drive the truck to make sure nothing was wrong with it, and about a week later drove it to Plain Dealing, Louisiana, with a trailer carrying a load. Jackson testified that each time the truck still "rode good" and that he did not hit his head at all. He said that when he first drove the truck, Hebert was still driving it. Jackson was unable to remember dates about when Hebert complained about the truck or when Jackson drove it, but he said that his trip to Plain Dealing was before Thanksgiving 2002. He did not know if repairs were ever made to the truck's suspension.

Wayne Morrow, the fleet manager, testified that he had heard Hebert's testimony that Hebert thought Morrow found something wrong with the truck's ride because of diagnosing the popping sound. Morrow testified that the popping noise, however, was coming from the bolts that were replaced on August 5, 2002, which would not have caused the rough ride. Morrow also testified that he was not responsible for, and had not made, actual repairs to the truck. He said that he did not know about the suspension problems until being told about them by Betty Cornelius on August 13, after which he looked at the rear suspension arm bushings and decided that they did not need to be replaced.

On August 13, 2002, Hines sent Hebert to Dr. Charles A. Vermont, whose notes reflect that Hebert complained of pain in his neck and upper back after bouncing up and hitting his head in a truck. Dr. Vermont noted muscle spasms in Hebert's upper right neck.

Dr. Vermont referred Hebert to physical therapy, prescribed medication, and took Hebert off work through August 15, 2002, returning him to light duty on August 16, 2002. Hebert testified that on August 29 he was still in quite a bit of pain, and that he never underwent an MRI recommended by Dr. Vermont because workers' compensation would not pay and he did not have money to pay. At the hearing of January 30, 2003, he testified that his symptoms were not too bad as long as he stayed in bed, that it bothered him to get up and move around, that physical therapy seemed to help some, that his arm occasionally went numb, and that the pain was most constant in the upper back, neck, and right shoulder. He testified that he had not worked since his last day of light duty on August 29, 2002, that he was in a lot of pain and it would be hard for him to work, and that he was not able to do routine daily activities.

Office notes of Dr. Vermont reflect that on August 29, 2002, Hebert said that he was going back to work because workers' compensation would not cover him and he had no choice. Dr. Vermont noted "some muscle spasm, not severe," and wrote that he was reluctant to clear Hebert for work. On September 20, 2002, Dr. Vermont saw Hebert for the last time and noted complaints of cervical and thoracic pain radiating down the right arm. Notes of that visit reflect that Dr. Vermont would not release Hebert to work, and that Hebert was not following up with him because the claim was controverted and because of a lack of money. Dr. Vermont noted that Hebert was advised to see him every ten days and to repeat physical therapy, and that an MRI was a strong consideration if there was no improvement.

Records of service on the truck's suspension system during August of 2002 were introduced into evidence. A technician wrote on August 1, "Ck Rear Suspension Arm bushings, They need replacing on Right Rear axle." The August 5 service record shows anadjustment to leveling valves and repair of "cross member." August 13 shows adjustment to leveling valves, as well as removal of old bolts on cross member and replacement with new ones.

Hebert testified that he told Dr. Vermont on August 29, 2002, that he was going back to work because workers' compensation would not cover him and he had no choice. He testified that he had been treated for depression since 1995; he told his counselors in May of 2001 that it seemed that child support was "stealing" from him, and that he planned on quitting his job to avoid having child support taken because he was doing his best to catch up; in November 2002 he told his counselors and therapist that he did not have money to pay the IRS, and that he had lost his internet and direct television services. He testified that on September 20, 2002, he told Dr. Vermont that he was banking on workers' compensation to pay for medical care because he had no money, and because of having no money he refused to pay five dollars on his account in order to continue seeing Dr. Vermont.

Hines argues that the truck's maintenance records, testimony by Wayne Morrow and David Jackson, and Hebert's "unsubstantiated allegations and unwitnessed alleged specific incident," constitute substantial credible evidence as to whether a specific incident resulted in a compensable injury. Hines argues that the Commission disregarded Jackson's testimony about his initial test drive and Morrow's testimony that he found nothing wrong with the truck that would have caused a rough ride. Hines also questions perceived inconsistencies in Hebert's testimony regarding the truck's rough ride, whether loaded or unloaded.

We agree with Hebert that Hines simply interprets the evidence differently than did the Commission. The repair records reflect that Hebert communicated his complaint to Hines and that several repairs were made. Testimony of supervisory personnel that nothing wrong was viewed by the Commission as of no import because testing of the truck occurred after repairs were made and after the incident of July 16 or 18, 2002. Furthermore, the Commission viewed Hebert's statements to physicians and his report of injury as giving credence to his allegation that his injury occurred when he hit his head hard against the ceiling of the truck.

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. Air Compressor Equipment v. Sword, supra. The evidence is viewed in the light most favorable to the findings of the Commission and is given its strongest probative value in favor of the Commission's decision. Id. The question before this court is not whether we might have reached a different conclusion from the one found by the Commission, or even whether the evidence would have supported a contrary finding. Id. Here, we hold that the Commission's finding that Hebert sustained a compensable accident, based upon the Commission's determination of the weight of the evidence and the credibility of the witnesses, is supported by substantial evidence.

Total Temporary Disability

Hines contends that substantial evidence does not support the Commission's finding that Hebert is entitled to temporary total disability. Temporary total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Arkansas State Hwy. & Transp. Dep't v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 6 Ark. App. 124, 628 S.W.2d 582 (1982).

Awarding total temporary disability benefits in this case, the Commission found that Hebert remained in his healing period and was totally incapacitated from earning wages. The Commission found that Hebert credibly testified that his injury prevented him from working and found that no doctor released him to work. Hebert testified at the hearing that he was unable to work because of the pain that he suffered. Dr. Vermont wrote on September 20, 2002, that Hebert needed to return every ten days, needed to have physical therapy, and could not return to work. Dr. Vermont also wrote that an MRI would strongly be considered if Hebert did not improve. We hold that this office note and Hebert's testimony, which the Commission found to be credible, constitute substantial evidence to uphold the finding that Hebert was entitled to temporary total disability benefits.

Affirmed.

Griffen and Neal, JJ., agree.