George A. Abbott v. Ritchie Roofing, Inc. and Transportation Insurance Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

GEORGE A. ABBOTT

APPELLANT

v.

RITCHIE ROOFING, INC. and TRANSPORTATION INSURANCE COMPANY

APPELLEES

CA05-216

SEPTEMBER 28, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F308077]

AFFIRMED

Karen R. Baker, Judge

The Workers' Compensation Commission (Commission) affirmed and adopted the administrative law judge's (ALJ) decision finding that appellant failed to prove by a preponderance of the evidence that he sustained a compensable injury arising out of and in the course of his employment. On appeal appellant argues the Commission erred in finding that appellant failed to prove by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment and that the Commission erred in finding that appellant failed to prove by a preponderance of the evidence that he sustained a compensable injury. We find no error and affirm.

Appellant, George Abbott, testified at the hearing before the ALJ that on July 23, 2003, while working for Ritchie Roofing, Inc., he was injured while attempting to pick up a keg of asphalt. He said that he attempted to lift the keg, but could not, and that he "went down to the ground." He said that he remained on the ground for five or six minutes then stood up and walked around for approximately fifteen minutes. He testified that he informed his supervisor that his back was hurting but was told to return to work. Abbott stayed on the job for the remainder of the day. He said that in addition to his supervisor he also told a friend, Steve Keaster, about the injury. Appellant did not return to work the next day but instead sought emergency medical treatment. He said that he never told anyone that he injured his back "anywhere else but on the job." On cross-examination, appellant said that he was involved in a motor vehicle accident in April 2003, but denied that he suffered a back injury. He also said that he was not certain whether the injury occurred on July 17 or July 23, 2003.

Steve Cronin, a foreman at the roofing company, testified that appellant reported that he was experiencing back pain "some time in July," and that on the morning appellant spoke to him about having back problems, appellant mentioned "that he had slipped down while moving a pool." Cronin said that appellant appeared to be injured before work began that morning.

Steve Keaster, another employee of the roofing company, testified that on the morning of July 23, 2003, appellant told him that his back was hurting and asked for some Doan's pills. Keaster said that appellant never indicated why his back was hurting and that appellant never told him that he was hurt at work.

Anthony Kuntz, also an employee at the roofing company, testified that on July 23, 2003, appellant told him that he had "hurt his back moving a swimming pool."

Conflicting emergency room records were presented. The first record indicated that appellant was treated on July 24, 2003; that he came to the hospital complaining of pain across the lower back, progressively worse, with an onset of July 17, 2003; and that he denied any specific injury. The second record indicated that appellant received care on July 29, 2003, and that there had been pain in the lower back and radiating down the left leg since July 23, 2003.

The ALJ denied appellant's claim for benefits, finding that appellant failed to prove by a preponderance of the evidence that he had sustained an injury arising out of and in the course of his employment. Specifically, the law judge found that appellant's testimony that he was injured on the job was inconsistent with other employees' testimony. In addition, the law judge noted that the emergency room records for July 24, 2003, indicated that appellant had a "one-week history of back pain" and that he denied any specific injury. Appellant subsequently appealed to the Commission, and on November 16, 2004, the Commission affirmed and adopted the ALJ's decision. This appeal followed.

In determining the sufficiency of the evidence to support the findings of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we will affirm if those findings are supported by substantial evidence. Winslow v. D & B Mech. Contr., 69 Ark. App. 285, 13 S.W.3d 180 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case do novo. Id. The determination of the credibility and weight to be given a witness's testimony is within the province of the Commission. Id.

In this case, both Steve Cronin and Anthony Kuntz testified that appellant told them he injured his back while moving a swimming pool. Steve Keaster testified that appellant never told him how he was injured, but that he appeared to be injured before work began on July 23, 2003. Although this testimony was inconsistent with appellant's account of what happened, we defer to the Commission on issues of credibility and weight given to testimony. Moreover, emergency room records from July 24, 2003, the day after appellant testified that he was injured at work, indicated that Abbott had a one-week history of back pain and that he denied any specific injury. Given this evidence, we hold that substantial evidence supports the Commission's findings that appellant failed to prove by a preponderance of the evidence that he had sustained an injury arising out of and in the course of his employment and that he failed to prove the elements necessary to establish a compensable injury.

Affirmed.

Bird and Roaf, JJ., agree.