Ball v. Work Source, Inc.
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA09-50
Opinion Delivered
June 3, 2009
JIMMY DON BALL
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION [NO. F613700]
V.
WORK SOURCE, INC. and
EMPLOYERS INSURANCE CO. of
WAUSAU
APPELLEES
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Jimmy Don Ball appeals the decision of the Arkansas Workers’
Compensation Commission denying him benefits for an injury he suffered on November 29,
2006. The Commission adopted and affirmed the decision of the Administrative Law Judge,
which found that appellant failed to prove that he suffered a compensable injury on
November 29, 2006, and that the evidence established that appellant had alcohol in his body
at the time of his injury. Appellant argues that the Commission’s decision is not supported
by substantial evidence. We affirm.
Typically, on appeal to this court, we review only the decision of the Commission, not
that of the ALJ. Daniels v. Affiliated Foods S.W., 70 Ark. App. 319, 17 S.W.3d 817 (2000).
In this case, the Commission affirmed and adopted the ALJ’s opinion as its own, which it is
permitted to do under Arkansas law. See Death & Perm. Total Disability Trust Fund v. Branum,
82 Ark. App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the Commission makes
the ALJ’s findings and conclusions the findings and conclusions of the Commission. See id.
Therefore, for purposes of our review, we consider both the ALJ’s order and the
Commission’s majority opinion.
Under Arkansas Code Annotated section 11-9-102(4)(E) (Supp. 2007), the claimant
has the burden of proving by a preponderance of the evidence that the injury arose out of and
in the course of his employment, was caused by a specific incident, and is identifiable by time
and place of occurrence. When reviewing a decision of the Commission, we view the
evidence and all reasonable inferences deducible therefrom in the light most favorable to the
findings of the Commission and affirm that decision if it is supported by substantial evidence.
Neal v. Sparks Reg’l Med. Ctr., 104 Ark. App. 97, --- S.W.3d --- (2008). 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,
we must affirm. Id. Where the Commission denies benefits because the claimant has failed
to meet his burden of proof, the substantial-evidence standard of review requires us to affirm
if the Commission’s decision displays a substantial basis for the denial of relief. Id. A
substantial basis exists if fair-minded persons could reach the same conclusion when
considering the same facts. Id. Questions of weight and credibility are within the sole
province of the Commission, which is not required to believe the testimony of the claimant
or of any other witness, but may accept and translate into findings of fact only those portions
of the testimony it deems worthy of belief. Strickland v. Primex Technologies, 82 Ark. App. 570,
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120 S.W.3d 166 (2003). Once the Commission has made its decision on issues of credibility,
the appellate court is bound by that decision. Id.
Arkansas Code Annotated section 11-9-102(4)(B)(iv)(a) (Supp. 2007) provides that
an injury is not compensable where the accident was substantially occasioned by the use of
alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. “The
presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s
orders shall create a rebuttable presumption that the injury or accident was substantially
occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of
physician’s orders.” Ark. Code Ann. § 11-9-102(4)(B)(iv)(b).
Whether the rebuttable
presumption is overcome by the evidence is a question of fact for the Commission to
determine. Apple Tree Serv., Inc. v. Grimes, 94 Ark. App. 190, 228 S.W.3d 515 (2006); Ark.
Elec. Coop. v. Ramsey, 87 Ark. App. 254, 190 S.W.3d 287 (2004).
In the instant case, evidence showed that appellant had a long history of back problems
dating back to 1994. As recently as September 11, 2006, appellant sought medical attention
for lower back pain below his belt line. Appellant told medical personnel that he was pushing
his four wheeler up a ramp and hurt his back. On November 29, 2006, appellant was
working as a maintenance man at Twin Sixes Apartment. Appellant told Fort Smith EMS
that “he was stepping up onto the ladder when his other foot slipped on some pipes that were
laying on the ground and he fell backwards twisting his lower back during the fall and then
landing on his back.” According to the Emergency Clinical Record from St. Edward Mercy
Medical Center, appellant told the nurse that he “stepped back off a ladder and twisted [his]
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back.” The clinical record also indicated that appellant was “cussing & yelling” and that he
was also “demanding [to get] off board.”
Appellant told Dr. Patric Anderson that he fell
“about 5-6 feet” off of a ladder. According to the Emergency Room Report, appellant also
infomed Dr. Anderson that “he has had some alcohol today” and that he “drinks alcohol
regularly.” At the hearing before the ALJ, appellant testified that he had one beer during
lunch before he ate. According to appellant, he consumed the beer nearly two hours prior
to his fall. Appellant described his fall to the ALJ by stating:
After I eat, I went to Lowe’s and I think Home Depot and was looking for a zip-saw
to work on the sheetrock with, and I got back to work around 1:00 and I heard the
tin - - the wind was blowing hard and I heard the tin flapping on the side of the
building. I went around and looked and there was a piece of tin that was about to
come off, and the fascia board was gone off of it and the tin was lapped over probably
a foot over the edge of the building. I put a new fascia board back up there, about 15
foot long, and then started trying to wrap the tin over the edge of the building, and
as I was wrapping the tin over, I put me a board on there for leverage on top of the
tin and under the tin and put a drywall screw across through it and used it for leverage
to pry the tin down, and was putting a screw in with my other hand that I had already
started through the tin and tried to reach the wood with it, and the board that I was
using, too, for leverage, the head of the screw pulled through it and let the tin come
flying back out and it pushed me backwards, and I reached and grabbed the edge of
the tin, caught maybe an inch of the tin with my fingers, and slipped off of it and as
I was going back, I seen I was going to fall on a pipe that was laying on the ground
underneath the ladder, so I kicked off with my feet to get away from that, and when
I did, I landed in the middle of my back. . . . I was probably my head’s height above
the edge of the roof. I was at that height when this accident occurred. Straight down.
It was probably straight down. The wall was probably 12 feet, but I’m assuming that
I fell further than that because I was back away from the wall; I’d say probably close
to 15 feet. I landed right flat of my back. It was kind of a humped spot on the ground
that I landed on, too.
Appellant was taken to by ambulance to St. Edward Mercy Medical Center where an
x-ray was taken of his back. Dr. Leo Drolshagen interpreted appellant’s x-ray and noted that
the compression fracture at T12 was “probably old.” Dr. Anderson’s note stated that the x-4-
ray revealed a T12 compression fracture, which looked old. Dr. Anderson also noted that
there was no skin discoloration; that there was no pain, weakness or numbness in appellant’s
extremities; and that appellant did not have any tenderness at T12. Appellant was discharged
with pain medication and told to follow up with his primary care physician.
Appellant presented to Dr. Joseph W. Queeney, on December 6, 2006, complaining
of back pain “located primarily in the mid lumbar region” and the sacral region. Appellant
also complained of numbness in his feet and in the perianal region. In his social history,
appellant told Dr. Queeney that he consumed “about a 12-pack of beer a week.” Dr.
Queeney noted that the physical examination he performed on appellant did not reveal
“tenderness to percussion over the thoracolumbar region. In fact, the patient states ‘that feels
good.’” Appellant also did not have tenderness in his sacrum and coccyx region.
Dr.
Queeney reviewed an MRI performed on appellant’s lumbar spine on December 5 and noted
that edema was present “within the sacrum between S2 and S3.” He also noted edema
“within the vertebral body of T12.” According to his note, Dr. Queeney believed that “some
of these findings do look old.” He ordered a CT scan of appellant’s thoracic, lumbar, and
sacral spines “to see if this will help to determine the age of this and the degree of retropulsion
of the bone.” The CT scan of appellant’s lumbar spine conducted on December 11, 2006,
revealed a burst fracture at T12, a small central disc protrusion at L4-5, and a small left lateral
disc protrusion at L3-4.
The CT scan of appellant’s thoracic spine also revealed the burst
fracture at T12. Another CT scan was performed on appellant’s lumbar spine on May 25,
2007. That scan revealed that the fracture at T12 was healing. Dr. Queeney’s progress note
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for June 7, 2007, indicated that the May CT scan showed “progression of the thoracic
compression fracture at T12 with retropulsion of bone and burst component.” Dr. Queeney
also stated in that note, “[I] think that this does represent an injury that did occur back with
his workman’s compensation injury. I do not think that a chronic condition would do this.
It does not really follow with that.” Dr. Queeney’s progress note for July 23, 2007, indicated
that appellant’s burst fracture at T12 was stable.
Dr. Queeney’s October 22, 2007 deposition was admitted into evidence at appellant’s
hearing. In that deposition, Dr. Queeney stated that he was not aware of any prior back
complaints appellant had before his November 29, 2006 fall. Dr. Queeney said that pushing
a four wheeler up a ramp could “produce the pain in the back, but not the parasthesias in the
perianal region.” However, he stated that getting thrown from a vehicle after it rolls seven
times “would certainly be a traumatic event that could cause a T-12 fracture.” Dr. Queeney
testified that the gluteal pain appellant complained of in February 2005 was “pretty close” to
the area of appellant’s sacral pain appellant first presented to him with. He also stated that
“when someone has a T-12 compression fracture, you would expect for them to be tender
around the fracture site. . . . [T]he lack of tenderness . . . would raise my suspicion [that the
fracture was old].” However, Dr. Queeney said that he had seen one other person who had
a similar fracture with very little pain.
On cross examination, Dr. Queeney stated:
[T]his kind of compression fracture is from an axial load – that’s a load from your head
down to your feet. Yes, that kind of fall would be the type of an accident that could
produce that axial load necessary – if he would have landed on his buttocks. Okay,
[a]nd that would be sufficient force to cause the kind of burst fracture that we see here
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at T-12. Edema is a an abnormal accumulation of fluids. Edema is more frequently
found in a newer type of injury. And then you’re going to try to pin me down on
what “new” means. The more recent the injury, the more the amount of edema that
you tend to see. Although, edema can still be present in a vertebral body for maybe
six months after an injury. If this had been an old injury, more than six months old,
would I expect to see edema? Again, there’s nothing that’s absolute about this, but I
think it would be very unlikely. And, here, where he’s had, on November 29, 2006,
and I see a week later on December 6, I would expect to see edema from that kind of
a fall. I would expect to see a significant amount of edema. And I did see some edema
on that date.
On redirect, Dr. Queeney stated that some of appellant’s symptoms could be “caused
by a chronic condition, rather than this T-12 burst fracture.” According to Dr. Queeney,
appellant’s “numbness in the scrotum and difficulty with erections” could be caused by “some
nerve impingement in the sacral area.”
The ALJ issued his opinion on April 21, 2008. In that opinion, the ALJ stated that he
did not find appellant’s testimony credible to “prove the occurrence of an employment related
incident or accident on that date and to prove a causal relationship between this incident and
his back difficulties.” The ALJ found that the evidence was sufficient to prove that appellant
had “some amount of alcohol in his body at the time of the alleged employment related
accident and injury,” giving rise to the presumption that appellant’s accident and injury were
substantially occasioned by the presence of alcohol in his system. The ALJ stated that the
emergency room records indicated that appellant “stated that he had consumed alcohol that
day”; appellant testified that he had a beer one to two hours “prior to the alleged accident and
injury”; and the emergency room records showed appellant “exhibited somewhat unusual
behavior” by “cursing, yelling, and removing himself from the backboard against medical
advice.” The ALJ found appellant’s description of his “alleged employment related accident”
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given at the hearing to be “inconsistent with the history he related when initially seeking
medical treatment[.]” The ALJ also found appellant’s description to be “inconsistent with the
various physical findings observed and noted.” There was no indication of “abrasions, bruises,
redness, or swelling” anywhere on appellant’s body. The ALJ stated that it was “difficult to
believe that the claimant could have fallen from a height of 12 to 15 feet and landed flat on
his back on a “hump spot” on the ground without any visible evidence of trauma to the soft
tissue of his back.” The ALJ further stated:
The medically established and objectively documented physical injuries or defects to
the claimant’s back also appear incompatible with the mechanics of the injury
described by the claimant. In his deposition, Dr. Queeney indicated that the
compression or “burst” fracture of the T12 vertebra could have resulted from a fall on
November 29, 2006. However, his opinion is clearly based upon the assumption that
the claimant landed on his buttocks, not flat on his back. As Dr. Queeney indicated
a compression or “burst” fracture occurs when axial pressure (i.e. pressure from top to
bottom or bottom to top) is applied to the spinal column. This is not the type of
trauma that would have been produced by the fall described by the claimant, either in
his testimony or in the initial history he related to personnel at the St. Edwards Mercy
Medical Center emergency room. The force of trauma that would have been
produced by the fall described by the claimant would have been lateral trauma, or
force applied to the spinal column from the side. . . . I find Dr. Queeney’s expert
opinion to be convincing. However, I do not find it sufficient to support a finding
that this fracture was due to a fall that occurred on November 29, 2006.
.
.
.
.
Curiously, following the alleged employment related accident on November 29, 2006,
the claimant made no complaints with his back in the area of the T12 vertebra. In
fact, it was noted that he was not even tender when pressure was applied directly to
this area. Even Dr. Queeney recognized that this would be highly unusual and he
recalled only one instance where a similar lack of complaints was exhibited.
[T]he claimant has failed to prove by the greater weight of the credible evidence that
the medically established and objectively documented physical injuries or defects
involving his back were causally related to any specific employment related incident
on November 29, 2006. If, in fact, such an employment related accident, as the
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claimant describes, actually occurred, the claimant has further failed to prove that this
accident was not substantially occasioned by the presence of alcohol in his body. For
the foregoing reasons, I find that this claim must be denied.
Appellant appealed the decision to the Commission, which affirmed and adopted the
ALJ’s opinion. The Commission filed its opinion on November 17, 2008. This timely appeal
followed.
Appellant argues that the Commission’s decision is not supported by substantial
evidence. We disagree. Viewing the evidence in the light most favorable to the Commission,
as we must, substantial evidence supports its denial of benefits. Appellant had a long history
of back problems and the type of fracture that was present at T12 was inconsistent with
appellant’s different accounts of events. None of appellant’s versions of his fall could generate
the type of axial force necessary to cause the compressed fracture at T12. Additionally,
appellant was not tender at T12, there were no bruises or any other visible signs of injury at
T12, and Drs. Anderson and Drolshagen both opined that appellant’s compressed fracture at
T12 was old. Reasonable minds could reach the Commission’s conclusion that appellant
failed to prove he suffered a compensable injury leading to his compressed fracture at T12 on
November 29, 2006. Therefore, we affirm.
Because appellant failed to prove he suffered a compensable injury on November 29,
2006, we do not reach his argument that substantial evidence does not support the
Commission’s conclusion that his fall was substantially occasioned by the presence of alcohol.
Affirmed.
V AUGHT, C.J., and K INARD, J., agree.
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