Sandra Harmon v. Kroger et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

SANDRA HARMON

APPELLANT

V.

KROGER, ET AL.

APPELLEES

CA04-869

May 25, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. F200949]

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this workers' compensation case filed a claim for benefits asserting that she sustained a compensable low back injury in November 2001 in the course of her employment with appellee Kroger. After a hearing, the Commission found that appellant failed to prove by a preponderance of the evidence that she sustained a compensable injury. On appeal, she argues that the Commission erred by arbitrarily assigning more weight to the testimony of appellee's managers and supervisors than it did to her own testimony. We affirm.

We affirm the Commission if there is substantial evidence to support its action. Williams v. Ark. Oak Flooring Co., 267 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979). In cases in which the Commission has denied a claim because of a failure to show entitlement by a preponderance of the evidence, this standard can be translated as follows: we will affirm if the Commission's opinion displays a substantial basis for the denial of relief. Id.

Here, the evidence relating to the time and manner of appellant's injury was in conflict. The Commission found appellant's version of events to be less credible because appellant did not immediately seek medical attention, because appellant gave many different descriptions of the incident in which the asserted injury was sustained, because of inconsistency between appellant's testimony and company records, and because of videotape evidence that tended to contradict appellant's testimony regarding the extent of the pain and disability resulting from the asserted injury. The findings of fact upon which the Commission based its credibility decision are permissible ones, supported by the record, and the Commission's conclusion that appellant's testimony therefore lacked credibility was a conclusion that reasonable minds could arrive at, and one that displays a substantial basis for the denial of relief. See Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991).

As appellant notes, the Commission is not entitled to "arbitrarily disregard" the testimony of any witness or, for that matter, any other evidence submitted in support of a claim. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). However, this principle cannot be interpreted so broadly as to conflict with the requirement of Ark. Code Ann. § 11-9-711(b)(3)(B) (Supp. 2003) that the findings of fact made by the Commission within shall be conclusive and binding upon this court. The scope of our review of the Commissions's decisions is limited by statute to questions of law, and we may reverse the Commission on these grounds and no other: that the Commission acted in excess of its powers, that the order was procured by fraud, that the facts found by the Commission do not support the order or award, or that the order or award was not supported by substantial evidence. Ark. Code Ann. § 11-9-711(b)(4) (Supp. 2003).

Because of this limitation on the scope of our review, we simply lack the authority to engage in the sort of re-weighing and reconsideration of all the evidence that appellant asks us to perform. Our review of the sufficiency of the evidence is not based on "the record as a whole," Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991), but is instead conducted by viewing the evidence "in the light most favorable" to the appellee, i.e., by considering only that evidence that tends to support the decision and determining whether it is substantial, without weighing the evidence on one side against the other. Deffenbaugh Industries v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993); see McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993). Here, the Commission articulated specific factors that led it to discount appellant's credibility; those factors are supported by the record viewed in the light most favorable to appellee, and reasonable minds could have reached the same conclusion on the basis of those factors. See Daniels v. Arkansas Waffles, Inc., 83 Ark. App. 106, 117 S.W.3d 653 (2003). Consequently, we hold that the Commission did not arbitrarily disregard appellant's testimony.

Affirmed.

Gladwin and Bird, JJ., agree.