Jerry L. Childress v. Eagle Paper and American Home Assurance Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-579

DIVISION I

JERRY L. CHILDRESS,

APPELLANT

V.

EAGLE PAPER AND AMERICAN HOME ASSURANCE CO.,

APPELLEES

CA05-579

DECEMBER 7, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

[NO. F300749]

AFFIRMED

Sam Bird, Judge

Jerry Childress appeals an April 27, 2005, decision of the Workers' Compensation Commission that denied his claim for neck and back injuries. His sole point on appeal is that the Commission's denial of benefits is not supported by substantial evidence. We hold that the Commission's decision displays a substantial basis for the denial of the claim; therefore, the decision is affirmed.

At a hearing conducted before the administrative law judge on February 17, 2004, Childress contended that he sustained compensable injuries to his neck and back on December 5, 2002. Eagle Paper Company contended that his injury arose from preexisting degenerative conditions and did not arise in the course and scope of his employment. The evidence at the hearing included medical records; testimony by Childress, his girlfriend, and manager Scott Robinson; and statements of coworkers James Beasley and Ralph May.

In an opinion of May 17, 2004, the law judge found that Childress had not proven that he had sustained a compensable injury under our workers' compensation law. The law judge's opinion included the following findings:

Significantly, the emergency room report does not indicate that the claimant described the occurrence of any injury in the manner that he now contends occurred. Moreover, the emergency room report indicates that the claimant described a gradual onset of problems. In this regard I note that the record contains a number of inconsistencies. For example, the claimant testified that he told Mr. Beasley on the day that the alleged incident occurred that he had experienced a pop in his neck or back. However, the written statement from Mr. Beasley that were submitted into the record by the claimant simply indicates that the claimant verbally advised Mr. Beasley that he had hurt his back the following day. Notably, according to the time frame established by Mr. Beasley's statement, the claimant's statements to him occurred after he became aware at the emergency room of the potential severity of his condition. I also note that the medical records indicate that the claimant has a history of relatively heavy alcohol usage. Accordingly, after considering the evidence submitted into the record, and after observing the demeanor of the claimant during his testimony at the hearing ... I find that the claimant's credibility is diminished and that the weight given to his testimony and statements is likewise diminished.

The law judge concluded that Childress's statements in the emergency room regarding the history of his condition were not consistent with the history of injury that he alleged after he became aware of the severity and nature of his condition.

Childress appealed the law judge's opinion to the Workers' Compensation Commission. In an opinion issued on April 27, 2005, the Commission adopted and affirmed the law judge's opinion. Childress now appeals the Commission's opinion. He argues that his testimony was not contradicted by other witnesses, that the Commission overlooked or misinterpreted evidence before it, and that the Commission did not consider objective medical objective evidence that supports a conclusion that his injuries were sustained at a specific date and time rather than from a degenerative process.

In order to prove the compensability of a specific-incident injury, a claimant must prove by a preponderance of the evidence that the injury arose out of and in the course of employment, that the injury caused internal or external physical harm to the body resultingin the need for treatment, and that the injury was caused by a specific incident identifiable by a time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Cum. Supp. 1997). Medical evidence used to establish the existence of the injury must be supported by objective findings, and the burden of proof of a compensable injury shall be on the employee. Ark. Code Ann. § 11-9-102(4)(D) & (E).

Where the Commission denies benefits, the substantial evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001). A substantial basis for denying relief exists if fair-minded persons could reach the same conclusion when considering the same facts. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). The issue is not whether we 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. Hill v. Baptist Med. Ctr., supra.

Childress testified to the following events of December 5, 2002:

I had been operating a Bobcat mainly all day. Around 2:00 or 2:15 that evening I was operating a Bobcat. You've got to use your hands to operate it. They didn't have [a] mirror on the Bobcat where you could see in back of you. So you had to turn your head left and right to make sure you don't back over nobody. About that time I had my head turned. I was turning the Bobcat and I felt something pop real bad down through my back. Right down through here. Between my shoulder blades and right at the base of my neck.

The Bobcat does have hand controls. In order to turn it or operate it or make it move I have to keep my hands on these controls. ...

Childress stated that he got off the Bobcat about 2:30, that he told his coworkers James Beasley and Ralph May about feeling the pop, and that both of them told him to tell the foreman. Childress testified that he reported feeling the pop to his foreman, Corky, who told him to sit down for the thirty minutes left until time to clock out and that Corky said nothing about filling out paperwork.

Childress further testified that he could not use his foot and could not brake well while driving his truck home; he stated that the twenty-minute drive took over an hour because he stopped every five miles or so to walk and relieve the pain. At home he told Judy Blackwell, his girlfriend, that something had popped in his neck and that it hurt "bad." He was unable to relieve the pain by lying in a bathtub full of hot water or sitting on the couch. Blackwell took him to the hospital emergency room in Magnolia that night; he could not drive because he could not use his hands or foot. He denied having neck or back pains before that date but stated he had received Cortisone shots for bursitis in his left shoulder periodically.

Childress testified that he was having sharp pains down his back, arms, and legs by the time he arrived at the hospital. He testified that he told the doctor about operating the Bobcat and feeling something pop in his back around 2:30 p.m., and that the doctor gave him a pain shot and referred him to his family doctor. Childress explained that in a pre-hearing deposition he had not been able to remember the exact date that the accident occurred but that after seeing his medical records he knew that it was December 5.

Childress testified that the next day (December 6, 2002), he went to his family doctor, Dr. Haynes, at the Claiborne Family Medical Clinic in Louisiana. Childress told Dr. Haynes that the accident was work-related, reporting to him, "I felt something pop in my back, my legs and my arms and was just in bad pain." Dr. Haynes sent Childress to have an MRI at Homer Hospital and to Dr. Martinez, a neurosurgeon at Shreveport.

Childress testified that, on the morning he saw Dr. Haynes, he called Scott Robinson and asked if an accident report had been filled out; Robinson said that he did not feel that it was needed. Childress then talked to a secretary, who also said that they had not filled out an accident report; he asked her if he could call workers' compensation; and she gave himthe number. Childress telephoned someone at workers' compensation who said that they did not fill out an accident report.

Childress testified that he had the cervical MRI on December 16, 2002, but neither workers' compensation nor his health insurance company paid for it, and the health insurance company said that the accident was work-related. Dr. Martinez ordered a lumbar MRI. Childress received charity care from LSU Medical Center in Shreveport because he had no money to continue seeing Dr. Haynes or Dr. Martinez, and the insurance would not pay. He had not been able to work from December 5, 2002, through the hearing date of February 17, 2004. He was scheduled for surgery February 26, 2004, by Dr. Heard at LSU.

Judy Blackwell, Childress's girlfriend, testified that she observed him in severe pain on December 5, 2002. She testified that he previously had complaints of bursitis in his left shoulder but never before had such pain in his neck and back, and that it seemed to be worse after December 5.

Hand-written statements from two coworkers were introduced into evidence. James Beasley's statement is as follows:

[Childress] was off work prior to the day in question that he states he got hurt on the job. The day he states he got hurt, he rode the bobcat all day, and the next day he verbally stated that he hurt his back riding the bobcat. However, I personally did not see anything that happened to cause an injury.

Ralph May stated that he did not see Childress get hurt on the job.

Scott Robinson testified on behalf of Eagle Paper that Childress was a very good employee. Robinson said that Childress missed work only about once every two months, that it was because of trouble with his shoulder, and that the company knew that he had to have shots then. Robinson also recalled Childress missing work once for back soreness. Robinson testified:

As for the first I learned that Mr. Childress claimed to have injured himself on the Bobcat, I wasn't aware it was a Bobcat issue for two or three months. I believe it was the thirteenth of December [Childress] called and he hadn't come into work and that he said he had a sore back. At that point he hadn't mentioned it was because of riding the Bobcat.... He had not reported any injury to me before that. He did not call me at any time and ask me about filling out an accident report.

Robinson stated that Childress did not tell him on December 13 that his sore back was work-related or that he had gotten hurt on the job.

Robinson testified that the company offered Childress light-duty work but that he said he was in too much pain to perform any tasks. Robinson denied knowing that Childress told Corky and denied knowing until December 17 that Childress was seriously hurt. Robinson agreed that it was possible that Childress had told Corky and Robinson's brother about the work-related incident. Robinson denied having a conversation with anyone from AIG Claims Services around December 12 or 13 about a work-related incident, and he said that he had no knowledge of Dr. Haynes's office trying to speak with an AIG representative on December 12.

A nurse's note from Magnolia Hospital's emergency room, written the evening of December 5, 2002, states that Childress arrived complaining of left-hand pain and was on a four-wheeler about 2:00 p.m. A note dictated by Dr. Jason Franks states in part:

Mr. Franks [sic] is a 52-year old,1 white gentleman with no known past medical history. He presents to the emergency room complaining of left hand pain, which has been intermittent in nature over the last several weeks. This episode has bothered him for about two days. He also has had some right hand pain, which is not as bad. It is worse with movement of his hands and he also has had some neck pain. He states that he feels like the pain shoots down from his neck into his hands. He states he drives a forklift and his pain has been worse since he has been working.

Dr. Franks concluded that Childress had radicular hand pain with possible disc disease. Dr. Franks recommended a cervical MRI to evaluate for disc disease.

On the following day, December 6, 2002, Childress was seen by Dr. Haynes at the Claiborne Family Medical Clinic for complaints of neck and shoulder pain. Dr. Haynes's note states that Childress, a fifty-two-year-old white male, had a history of pain at the base of the neck. The note further states, "He was at work yesterday when he was using his arms and shoulders to steer a vehicle. He was constantly looking back over his shoulder and developed increasing pain and stiffness at the base of the neck." Dr. Haynes's impression was ligamentous strain of neck muscles. An MRI of December 12, 2002, ordered by Dr. Haynes, revealed "mild to moderate relative spinal stenosis" at C5-6 "due to a disc osteophyte ... somewhat more to the left side" and "moderately severe neural foraminal narrowing" at the same level, also on the left.

The record also includes notes of Claiborne Clinic visits by Childress before December 2002. On March 22, 2002, a history of arm and back pain was noted, as were his complaints that the pain had worsened over the past several days. On October 30, 2002, Childress was seen for pain in his left shoulder, and his knees and hands were hurting.

In a report of January 13, 2003, neurologist Dr. Jorge Martinez wrote the following:

The patient described that he was working a cart in the middle of December when he had a sudden twist and felt a pop in the neck as well as lumbosacral region. He has been hurting since then. The patient describes the pain in the neck is mainly localized in the posterior aspect of the cervical region radiating to the left shoulder as well as across the lumbosacral region.

Dr. Martinez noted that a cervical MRI showed "evidence of herniated cervical disc associated with spondylosis and spinal canal stenosis at C5-6 with spinal cord compression." Dr. Martinez recommended cervical discectomy and fusion at C5-6 as well as further investigation with a lumbosacral spine MRI. The report of a lumbar MRI, performed on February 4, 2003, noted central disc protrusion at L5-S1 in conjunction with bilateralspondylosis. X-rays of the cervical spine performed on February 4 and 10, 2003, noted degenerative changes at C5-6 and degenerative changes "mid and lower cervical spine."

Arguments on Appeal

Childress raises various arguments on appeal regarding the weight and credibility of evidence before the Commission. He points to alleged errors in the emergency room intake report: the patient is referred to as Mr. Franks, his age is given as both fifty two and fifty three, and the nurse relates his injury to a four-wheeler accident although "the treating physician's note is consistent with the claimant's version that he reported the injury and it was work-related." Childress disputes the Commission's finding "that the manner in which claimant alleges the compensable injury occurred is found solely in his own statements and testimony." Childress challenges the Commission's finding that statements of other witnesses contradicted his testimony. He argues that objective medical evidence supports a conclusion that his injuries were sustained as of a specific date and time rather than from a degenerative process.

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). 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). 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. Ellison v. Therma-Tru, supra.

The determination of whether there is a causal connection between an injury and a disability is a question of fact for the Commission to determine. Oak Grove Lumber Co. v.Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Furthermore, the resolution of conflicting evidence is a question of fact for the Commission. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (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., Inc. 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).

The evidence presented at the hearing, viewed in the light most favorable to the Commission's findings, supports the denial of Childress's claim for neck and back injuries allegedly sustained in a work-related incident on December 5, 2002, when he was operating the Bobcat, turned his head, and felt a pop. The emergency medical records of the same evening did not refer to this incident: the records noted a chief complaint of left-hand pain and a history of intermittent pain over the last several weeks, with a current episode of two days; some right-hand pain and neck pain shooting into the hands; and pain that had been worse with working. Coworkers May and Beasley stated that they did not witness the accident, and Beasley stated that Childress said nothing about the injury until the following day, which was after he had been to the emergency room and had learned the potential severity of his injuries. Although Childress and his girlfriend recalled shoulder pain as his only complaint before December 2002, his records at the Claiborne Clinic noted complaints of arm and back pain in March 2002 and complaints of shoulder, knee, and hand pain in October 2002. Degenerative cervical changes were noted in x-rays of February 2003.

Whether appellant injured himself on the job was a credibility issue. The Commission found that the emergency room report indicated that Childress described a gradual onset ofproblems, and it found that Childress's statements in the emergency room regarding the history of his condition were not consistent with the history of injury that he alleged after he became aware of the severity and nature of his condition. We hold that the evidence summarized above constitutes sufficient evidence to support these findings; further, these findings display a substantial basis for the denial of the claim.

Affirmed.

Robbins and Griffen, JJ., agree.

1 The note elsewhere refers to the age as fifty-three.