Weyerhaeuser Company v. Phillip L. White

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

WEYERHAEUSER COMPANY

APPELLANT

V.

PHILLIP L. WHITE

APPELLEE

CA04-567

November 17, 2004

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F301306]

AFFIRMED

Robert J. Gladwin, Judge

Appellant Weyerhaeuser Company seeks the reversal of a decision from the Arkansas Workers' Compensation Commission that found that appellee sustained a compensable injury to his lower back while working for appellant on July 5, 2002, and as a result, was entitled to medical benefits and temporary total disability benefits. For reversal, appellant argues that there is no substantial evidence to support the Commission's finding that appellee sustained a compensable injury and that he was improperly given the benefit of the doubt with respect to the related evidence. Additionally, appellant contends that because there is insufficient evidence to support the finding of a compensable injury, the Commission's finding that appellee is entitled to temporary total disability benefits is also erroneous. We affirm.

Appellee was working as a curtain coder for appellant on Friday, July 5, 2002, and allegedly sustained an injury to his lower back while unloading pallets off the process line. He finished his shift without reporting the incident but did ask for assistance from a co-worker, Mike Neal. Appellee drove himself home after his shift ended, but his pain

progressed to such an extent that his father took him to the emergency room on July 7, 2002. He was admitted to the hospital, where doctors diagnosed a moderate-sized, post-lateral-focal disc herniation at L4-L5, which was treated surgically on July 10, 2002. Appellee was released on July 12, 2002, with instructions to remain off work for a month. Appellee's father took him to appellant's offices that same day so that he could turn in paperwork to show that he had been in the hospital and needed to be off work for an extended period. He filed an application for short-term disability benefits but again did not report the injury as work related and failed to do so until he filed his workers' compensation claim seven months later on February 10, 2003. Appellee continued follow-up medical treatment but was unable to return to work. He subsequently underwent a second back surgery on July 16, 2003.

The ALJ determined that appellee had proven by a preponderance of the evidence that his back injury was compensable; however, because he failed to report the injury as work related until he filed his claim for benefits on February 10, 2003, appellant was not responsible for benefits until after that date. Appellant was required to pay for all additional medical treatment related to the compensable injury received by appellee after February 10, 2003, temporary total disability benefits from that date to a future date to be determined, and attorney's fees. The Commission affirmed and adopted the decision of the ALJ in its February 23, 2004 opinion.

The standard of review in workers' compensation cases is well settled. 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 which a reasonable mind might accept as adequate tosupport 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); Wheeler Const., supra.

The claimant in a workers' compensation case must prove by a preponderance of the evidence that he sustained a compensable injury. Ark. Code Ann. § 11-9-102(4)(E)(i) (Supp. 2003). In order to prove a compensable injury the claimant must prove, among other things, a causal relationship between his employment and the injury. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). A "compensable injury" can be:

An accidental injury 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 and is identifiable by time and place of occurrence[.]

Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2003). Additionally, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2003). Appellant argues that there was insufficient evidence to establish, by a preponderance of the evidence, that appellee sustained an accidental injury identifiable by time and place of occurrence, which arose out of and in the course of his employment with appellant on July 5, 2002.

Appellee specifically testified that he injured his back when he twisted during a pulling and pushing operation during his job duties on July 5, 2002. He further testified that his pain increased over the course of his shift and that he had to ask for assistance from co-worker Mike Neal. Neal also testified that appellee had requested his assistance during that particular shift because he had done something to his back and that appellee had never before had difficulty performing his duties. Other corroborating testimony came from appellee's father and mother, who both observed his condition, heard him state that he hurt his back at work, and further explained that appellee neither generally performed yard work at their house nor did he engage in any yard work during that particular weekend. There were also hospital records that indicated the injury occurred while appellee was performing work-related duties.

Appellant maintains that the Commission awarded benefits based solely on appellee's self-serving statements that contradicted the weight of the other credible evidence and that the statements of Neal and appellee's parents are nothing more than recitations of appellee's own statements regarding the cause of his injury. There was contradictory testimonial and documentary evidence indicating that appellee stated his injury was not work related. A short-term disability form that appellee signed on July 12, 2002, but which he testified was filled out by someone else, stated that the injury occurred when appellee was doing yard work on Saturday, July 6, 2002. Appellee explained that he did not know who filled out the form and did not remember telling Ms. Shearer that he injured himself doing yard work; however, at the time, he was "just getting off Morphine and he had had a couple of Darvocets so he was feeling pretty good." There was another form filled out by appellee on July 18, 2002, where he also indicated that the injury was not work related. Another co-worker, Judy Ainsworth, testified that appellee had previously told her he was waiting for his probationary period to be up so he could obtain insurance, have surgery to get the short-term disability, and then find another job. Appellee rebutted that testimony, stating that he recalled the conversation but that it was Mike Neal who made the statement about obtaining surgery and short-term disability.

Here, although there were inconsistencies in the evidence, the credibility of the witnesses and the weight to be given their testimony are matters within the Commission's sole discretion. Horticare Landscape Mgmt., supra. Furthermore, it is the duty of the Commission to weigh the medical evidence and, if the evidence is in conflict, the resolution of such evidence is a question of fact for the Commission. Epoxyn Prod., Inc. v. Padgett, 84 Ark. App. 147,138 S.W.3d 118 (2003). Under these circumstances, sufficient evidence supports the Commission's findings. Although we may have reached a different conclusion were the matter before us for de novo review, we cannot say that reasonable minds could not have arrived at that conclusion. Accordingly, we affirm on this point.

Because we hold that there was substantial evidence to support the Commission's finding that appellee sustained a compensable injury to his lower back while working for appellant on July 5, 2002, we do not address appellant's argument that the Commission failed to weigh the evidence impartially and improperly gave the benefit of the doubt to appellee in contravention of Ark. Code Ann. § 11-9-704(c)(4).

Finally, appellant argues that there is insufficient evidence to support the Commission's finding that appellee is entitled to temporary total disability benefits, based solely on its contention that appellee did not suffer a compensable injury. This argument fails because, as we have held, the injury was compensable. Temporary total disability is the period of time within the healing period when the employee is totally incapacitated from earning wages. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). The question of when the healing period has ended is a factual determination for the Commission that will not be disturbed if there is substantial evidence to support it. Id. There were medical records explaining that appellee was released to return to work with restrictions but that appellant could not accommodate those restrictions; accordingly, there was sufficient evidence to support the finding that appellee was entitled to temporary total disability benefits as a result of his compensable injury. Additionally, there was uncontroverted evidence that appellee had undergone a second back surgery on July 16, 2003, and remained in his healing period at the time of the hearing. We hold that the medical evidence cited by the Commission constitutes substantial evidence to uphold its finding that appellee was entitled to temporary total disability compensation from February 10, 2003, to a date to be determined.

Affirmed.

Stroud, C.J., and Neal, J., agree.