Wal-Mart Stores, Inc. and Claims Management, Inc. v. Mary Ann Phillips

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ca05-603

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

WAL-MART STORES, INC. and

CLAIMS MANAGEMENT, INC.

APPELLANTS

V.

MARY ANN PHILLIPS

APPELLEE

CA05-603

November 30, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E308749]

AFFIRMED

Larry D. Vaught, Judge

Appellants Wal-Mart Stores, Inc., and Claims Management, Inc., appeal the decision of the Workers' Compensation Commission-adopting the decision of the Administrative Law Judge-that found appellee Mary Ann Phillips had proved by a preponderance of the evidence that she had sustained a compensable injury and concluded that Phillips was entitled to medical expenses and temporary total disability benefits. We find no error in the Commission's decision and affirm.

Mary Ann Phillips-a sixteen-year employee of Wal-Mart-worked in shipping and receiving at the store in Forrest City, Arkansas. At the hearing before the ALJ, she testified that on Friday, August 1, 2003, she and a co-worker, Judy Farrell, were unloading shipments. Farrell had left, and Phillips continued to work alone. She stated that while she was unloading large boxes, she "felt pain in [her] neck and back." She stated that she had never felt anything like it before. Although Phillips gave inconsistent testimony with regard to the exact hour the incident occurred on August 1, she repeatedly declared that the pain began when she was unloading the boxes. No one was present at the time Phillips was injured.

Phillips admitted that she had been involved in an automobile accident in 1993 and sustained mild whiplash, but she stated that after the 1993 accident she saw her general practitioner, who released her to work within a couple of days after the incident. She also had one appointment with a chiropractor after the accident to deal with headaches she suffered from the whiplash. She asserted that she did not have any problems with her neck or back from 1993 until the time of her accident in August 2003.

Phillips testified that she told several co-workers on August 1 that she had hurt herself unloading boxes and that she was in pain. She testified that she continued to work that Friday because she thought that it was just a pull and that it would get better over the weekend. She stated that when she came back to work on Monday, it was still "bothering" her and worsened throughout the day. On Tuesday morning she reported the incident to her personnel manager, Jeanette Jenkins. Although Phillips stated that she continued to have pain and asked to see a doctor, she also testified that she did not want to be a "complainer" so she continued working despite the pain.

Phillips saw Dr. James Meredith on August 8 and August 11, and he took x-rays of her neck and back. Dr. Meredith noted that Phillips had tenderness in her paraspinus muscles and that the x-rays showed straightening of the normal curves in the cervical and lumbar regions, which Dr. Meredith pointed out would be indicative of spasms in those areas. He specifically noted that "there was objective evidence of spasm." He prescribed Phillips a muscle relaxer and released her.

Phillips testified that she continued to hurt after her appointment with Dr. Meredith, so she asked personnel to make her a follow-up appointment with the doctor. She was told by her employer that workers' compensation would not pay for any follow-up doctor visits. Phillips stated that she continued to deal with the pain and eventually paid to see anotherdoctor, Dr. Beata Majewski, a rheumatologist. Dr. Majewski conducted an MRI of Phillips and referred her to Dr. Robert Abraham, a neurologist, who performed neck surgery on Phillips on May 26, 2004.1 Phillips returned to work on July 19, 2004, following her surgery. She testified that she was never paid workers' compensation by Wal-Mart for the time she had to take off following the surgery.

Two of Phillips's co-workers, Judy Farrell and Murline Byers, testified on Phillips's behalf. Both testified that they saw Phillips on the day of the incident and that she told them what had happened and that she was in pain. They also both stated that Phillips had not complained about pain in her neck or back before the incident on August 1 but frequently did so after the incident. Phillips's stepmother, Shirley Hawkins, who also works at Wal-Mart, testified that she saw Phillips at work on August 1 and that Phillips told her what had happened and that she was in pain. Hawkins said that Phillips looked to be almost in tears because of the pain.

In his oral deposition, Dr. Robert Abraham stated that Phillips presented to him on May 17, 2004, suffering from neck pain, bilateral shoulder and arm pain, and pain in her hips and legs. He stated that he reviewed her MRI, which evidenced a central-disc herniation at C5-C6 with cord impingement. Phillips told Dr. Abraham that she had started having problems with her neck and back in August 2003 when she was injured at work. He stated that he was unable to pinpoint exactly what happened to Phillips to cause her injury, and he had to rely on her recitation of her medical history to inform his determinations. However, he stated that by using her description of what happened, it was possible that this incident caused her injury. Appellants argue that the Commission erred in determining that Phillips established by the preponderance of the evidence that she had sustained a compensable injury and in awarding Phillips medical expenses and temporary total disability benefits from May 26, 2004, until July 19, 2004. This court reviews decisions of the Workers' Compensation Commission to determine if they are supported by substantial evidence. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). 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. Id. at 134, 84 S.W.3d at 881. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id., 84 S.W.3d at 881. 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 de novo. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000).

The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Poulan Weed Eater, 79 Ark. App. at 134, 84 S.W.3d at 881. The Commission is not required to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000).

The injured party bears the burden of proof in establishing entitlement to benefitsunder the Worker's Compensation Act and must sustain that burden by a preponderance of the evidence. Clardy v. Medi-Homes LTC Servs. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001). Under Ark. Code Ann. ยง 11-9-102(4)(A) (Supp. 2005), for a claimant to prove that she sustained a "compensable injury," she must show that she suffered an accidental injury causing internal or external physical harm that arose out of and in the course of employment that required medical services and that this injury was the result of a specific incident and is identifiable by time and place of occurrence.

Appellants argue that the Commission erred in finding that Phillips sustained a compensable injury because (1) the testimony presented failed to prove Phillips's injury was the result of a specific incident identifiable by time and place of occurrence; (2) Phillips's injury was not supported by medical evidence of objective findings; and (3) there was no evidence to prove that Phillips's herniated disc was causally related to her employment. We disagree and hold there was substantial evidence to support the Commission's finding that Phillips's injury was compensable.

Phillips testified regarding the incident at work and her injuries. She stated that she injured herself while unloading a shipment on August 1 and specifically stated that she immediately felt pain at that time and place. She also presented testimony from three co-workers regarding her complaints on the day of the incident and the physical pain she felt. Additionally, Phillips was consistent in relating her neck and back pain to the incident that occurred at work on August 1 during her appointments with Dr. Meredith, Dr. Majewski, and Dr. Abraham. Although appellants maintain that Phillips's pain could have been caused by her 1993 automobile accident, both Phillips and her co-workers testified that she had not suffered any neck and back pain prior to the August 1 incident.

As for objective medical evidence to support the Commission's decision, Phillips introduced the deposition testimony of Dr. Abraham who had reviewed Phillips's MRI scanand found a central-disc herniation at C5-C6 with cord impingement, as well as notes from Dr. Meredith-the first doctor to see Phillips after the incident-stating that there was straightening of the normal curves in the cervical and lumbar regions, which Dr. Meredith pointed out would be indicative of spasms in those areas. Although Dr. Meredith released her and felt she would not have any problems in the long term, he did prescribe her muscle relaxers and noted she would need to be re-examined.

We are satisfied that the evidence presented at the hearing supplied substantial evidence for the Commission to find that Phillips had injured her neck and back at work on August 1 while performing employment services; that her injuries were supported by objective medical evidence; and that Phillips's injury caused her such physical harm so as to require surgery. With regard to the Commission's decision to award Phillips medical expenses and temporary total disability benefits from May 26, 2004, until July 19, 2004, appellants argue that if we find no compensable injury, then the Commission's decision to award these benefits was in error. However, because we find the Commission did not err on the first point on appeal, there is no basis to reverse on this second point. Because there was substantial evidence to support the Commission's finding that Phillips sustained a compensable injury, it was also correct in awarding her benefits relating to that injury.

Affirmed.

Glover and Neal, JJ., agree.

1 Phillips was also seeing Dr. Ganong, an endocrinologist, at the time regarding a goiter and thyroid problem.