Crystal Barr v. Excel Corporation

ca05-838

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CRYSTAL BARR

APPELLANT

v.

EXCEL CORPORATION

APPELLEE

CA05-838

February 8, 2006

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F306713]

AFFIRMED

Andree Layton Roaf, Judge

This is a workers' compensation case. Appellant Crystal Barr, who is thirty-one years old, alleged that her job-related activities caused her to develop a gradual-onset injury to her lower back. The administrative law judge (ALJ) and the Arkansas Workers' Compensation Commission both found that Barr failed to prove that she sustained a compensable injury to her back during her employment with appellee Excel Corporation. Barr argues on appeal that the Commission's decision is not supported by substantial evidence. We affirm.

Barr first began working for Excel in 1998. She testified that she was a miscellaneous worker and that her job involved heavy lifting and frequent bending, stooping, and twisting. She first sought medical treatment for back pain in 1999. In a clinical report, dated June 15, 1999, Dr. Miranda, Barr's treating physician, noted that that Barr's back had been hurting her for the past week and that, though Barr could not recall any direct trauma, her work did involve "some lifting and twisting at the waist." Dr. Miranda advised her about proper posture, proper lifting techniques, and back strengthening exercises. On Barr's June 25, 1999, visit, Dr. Miranda made no notes of any continued complaints of back difficulties.

On December 7, 1999, Barr had a recurrence of back complaints. Dr. Suguitan, Dr. Miranda's partner, saw Barr on this date. Dr. Suguitan ordered x-rays of her lumbosacral spine, and the x-rays revealed mild arthritic changes of the lower lumbar spine and mild L5-S1 disc narrowing that may relate to underlying disc disease. He prescribed a short period of physical therapy at the Booneville Community Hospital. Barr told the physical therapist that bending, driving, and prolonged sitting increased her back pain.

As a result of the December 7, 1999 back complaints, Barr filed for short-term disability benefits. She signed her disability forms on December 9, 1999, which clearly stated that her disability was not related to her employment.

On August 1, 2000, Barr was involved in a three-wheeler accident. The medical reports do not reflect that the three-wheeler accident increased Barr's back complaints. The reports note that her symptoms from the wreck involved her lower extremities. Barr, however, noted on a medical history form on November 21, 2001, that her lower back pain could possibly be related to her three-wheeler wreck.

Barr sought treatment from Dr. J. A. Hale, a chiropractor, for lower back pain. She indicated in her medical history dated April 25, 2001, that her condition began on January 1, 2000, and that the back pain came and went. She indicated that the pain interfered with her work, sleep, and daily routine. She did not relate any of her back complaints to her employment.

Barr saw Dr. Miranda again on June 20, 2001, seeking treatment for lower back pain. Dr. Miranda noted that Barr had previously been diagnosed with back strain after aggravating her back at work. This is the first notation in which Barr had referenced any type of work-related injury. She underwent a CT scan on June 22, 2001, which revealed a mild disc bulge at L3-4 and a small left-sided protrusion at L4-5 with more moderate sized protrusion at L5-S1. She did not see Dr. Miranda again until October 24, 2001. In between these visits, Barr had continued working at Excel. In the medical report dated October 24, 2001, Dr. Miranda noted that Barr hurt her back last while lifting a box at home. At the hearing, Barr testified that her back began hurting in October or November 2001, because of her job that required a lot of bending, twisting, and lifting. She had been working at this particular position for approximately four months. The medical reports at this time do not reflect that employment-related activities were causing her back pain. Once again, Barr applied for and received disability benefits for this episode of back pain, and she specifically indicated on the disability form that the disability was not work related. Also, Dr. Miranda indicated in the physician's form on November 14, 2001, that Barr's condition was not work related.

Dr. Miranda ordered an MRI, and this test was performed on November 7, 2001. The MRI revealed a left paracentral disc herniation at L4-5, and a small right-sided paracentral disc herniation at L5-S1. Following this test, Dr. Miranda referred Barr to Dr. Edwin Landherr, a neurosurgeon. Barr first saw Dr. Landherr on November 21, 2001. In a history form, Barr indicated that her difficulties were not work related and could possibly be the result of a three-wheeler accident. Dr. Landherr noted that Barr had had back pain for "two years and three months since a three-wheeler accident in which she hit a tree." Dr. Landherr diagnosed her with degenerative disc lumbar spine at L4-5 and L5-S1. His report does not mention any causation linking Barr's low back pain to her work at Excel. He recommended that she undergo lumbar epidural steroid injections.

On November 26, 2001, Barr returned to Dr. Miranda, and he released her back to work at this time to assume her regular duties as tolerated. Barr visited Dr. Jerry O. Lennington, a chronic pain management specialist, on January 28, 2002. He noted in his report that there were "no instigating circumstances" for her back pain and that "she thinks [her three-wheeler accident] may have contributed to [her back and hip pain]." There was no mention of Barr's employment activities playing a role in her back pain complaints.

Barr sought treatment from Dr. Miranda for another episode of back pain on May 20, 2002. Dr. Miranda indicated in his notes that Barr could not recall "a specific kind of injury." He referred her again to Dr. Lennington, noting that his prior treatment had provided significant relief.

On July 17, 2002, Barr was again seen by someone in Dr. Miranda's clinic. She reported back pain and a pulled muscle. The medical record indicated that she "hurt back yesterday as she was cleaning top of cabinet ...." Once again, the medical records did not indicate that her employment activities contributed to her back pain.

Dr. Miranda's clinic saw Barr again on October 1, 2002, because Barr complained of back pain again and requested more pain pills. Dr. Miranda's handwritten note indicated that she "[h]urt back at work ...." On January 27, 2003, Dr. Miranda's clinic again treated Barr and the medical report indicated "severe back pain following fall, down all last week." There was no indication that the fall was employment related.

On March 10, 2003, Barr was seen by Dr. Miranda with severe pain over her low back. Dr. Miranda's notes indicated that Barr had changed to a new job and that she "could not take it." He noted that she could not recall any specific injury. At the hearing, Barr testified that she had worked a sanitation job for two nights in which she would wash and flip over big, metal carts that weighed approximately eight hundred pounds. Barr stated that her back began hurting again after she worked this job.

On March 24, 2003, Barr again applied for disability benefits for her current episode of back pain. She indicated on the disability form that her disability was not employment related. On her form, she stated that she "had back problems for the past four years-same place-same problem." Dr. Miranda indicated on the accompanying physician's form that Barr's back condition was not employment related.

On April 2, 2003, Dr. Miranda saw Barr again for back pain, and he referred her to physical therapy. Apparently, her pain improved while she was seeing the physical therapist. On April 24, 2003, however, Barr sought medical treatment from Dr. Miranda for back pain. Dr. Miranda scheduled another MRI, and it revealed a small left paracentral disc herniation at the L4-5 level and a moderate central disc herniation at the L5-S1 level. Dr. Miranda referred Barr to Dr. Arthur M. Johnson, a neurosurgeon.

In June 2003, Barr again applied for short-term disability benefits. On this disability form, for the first time, Barr indicated that her disability resulted from her employment with Excel Corporation. Barr had made a claim for workers' compensation benefits at some time between March and June 2003, and that claim had been denied.

Dr. Johnson saw Barr on August 7, 2003. At this time, Barr gave Dr. Johnson a history that was different than her previous histories. Dr. Johnson's notes indicated that Barr's back pain occurred at work while she was moving the big, metal carts. Barr's prior medical records did not reflect a specific employment related incident such as this. Barr had, in fact, denied on several occasions that her back pain was related to her employment.

Dr. Johnson last saw Barr on February 24, 2004. He noted in his report:

The patient did have lumbar disc herniation that developed over a period of time and is probably [the] natural process of degeneration and is probably associated with some repetitive motion involved in her work, but also cannot be contributed strictly related to work related activities. This is a combination of work and off work type activities that have caused the degenerative disc disease.

Barr appeals from the Commission's ruling that she failed to prove that she sustained a compensable injury to her back related to her employment with Excel.

The Court has set out its well-settled standard of review for workers' compensation cases as follows:

This court reviews decisions of the Workers' Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). In determining the sufficiency of the evidence to support the findings of the Workers' Compensation 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. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. 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, 4-5, 69 S.W.3d 899, 902 (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).

Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 133-34, 84 S.W.3d 878, 881 (2002).

To prove that one sustained a compensable gradual-onset back injury, the claimant must prove by a preponderance of the evidence: (1) that he or she sustained a back injury causing internal or external physical harm and (2) that the physical injury arose out of and in the course of his or her employment. Ark. Code Ann. § 11-9-102(4)(A)(ii)(b) (Supp. 2003). The claimant must also prove that the alleged compensable injury is the major cause of his or her disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii). "Major cause" means more than fifty percent of the cause. Ark. Code Ann. § 11-9-102(14)(A).

Barr argues that the Commission erred in finding that she did not prove that she sustained a compensable injury to her back while being employed by Excel. It is undisputed that Barr has proven that she has sustained a back injury that has caused her physical harm. The Commission found, however, that Barr failed to prove that her injury arose out of and in the course of her employment with Excel and that she also failed to prove that her employment activities were the major cause of her need for medical treatment or any disability she has experienced. Barr asserts that the items of evidence relied on by the Commission are not sufficient to rebut the overwhelming evidence that her back injury was the result of prolonged lifting, bending, and other back-intensive labor at her employment.

She testified that she was required to do heavy lifting, bending, and twisting at her job, and that her back pain first began in 1999, shortly after she began working for Excel. In her brief, Barr points out the fact that she was only twenty-seven years old when the degenerative disc disease in her spine was first noted and that this is a young age to begin having chronic back pain from this type of disease. Barr also relies on the fact that her three-wheeler accident occurred over three years before she had back surgery and that the treatment she received for this accident involved only her legs.

The medical evidence here failed to clearly establish the origin of Barr's back injury. While there does seem to be a correlation between her back pain and the beginning of her job in 1999, the evidence is insufficient to establish within a reasonable degree of medical certainty that she sustained a compensable injury or, specifically, that her back problems arose out of and in the course of her employment. Barr had denied on numerous occasions, including on disability forms, that her injury was work related. She had engaged in non-work activities that could have contributed to or perhaps caused her back injury, such as lifting boxes, cleaning countertops, and having a three-wheeler accident. She was slow in reporting that her injury was work related. Dr. Johnson opined that her back problems were caused by a combination of work and off-work activities. While Dr. Miranda, in a letter to Barr's attorney dated September 26, 2003, did state that he believed "her back pain for the most part is work related," this statement is not made within a reasonable degree of medical certainty.

Despite Barr's youth and the absence of prior back symptoms at the onset of her back problems in 1999 after being employed by Excel, there is evidence in the record to support the Commission's finding that Barr failed to prove that her back problems arose out of and in the course of her employment. There is also evidence in the record to support the Commission's finding that, even if her back injury was compensable, Barr did not prove that it was the major cause of her need for treatment or her disability. Because there is sufficient evidence to support the Commission's decision and given our standard of review for these cases, the decision is affirmed. See Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995) (holding that there was a substantial denial for the basis of relief where appellant's testimony lacked credibility; appellant was slow in reporting his injuries as work related; appellant had engaged in physically demanding activities before and after the alleged injuries; there was testimony from one doctor that the injury was not job related; where three physicians had testified that appellant related the injury to his job but they did not document "persuasive evidence of job related injuries"; and appellant had had long-standing back problems); Johnson v. Riceland Foods, 47 Ark. App. 714, 884 S.W.2d 626 (1994) (holding that there was a substantial basis for the denial of relief where appellant did not tell anyone that he had pulled anything the day it supposedly happened; appellant waited five days to report the injury as work related; and appellant had complained about his back for two to three years prior to the alleged accident).

Affirmed.

Pittman, C.J., and Glover, J., agree.