ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

SAM BIRD, JUDGE

C. L. WHITE,

APPELLANT

V.

AMTRAN CORPORATION,

APPELLEE

CA99-1470

FEBRUARY 14, 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. E713823

AFFIRMED

In this workers' compensation case, C. L. White contends that he injured his lower back while handling large pieces of sheet steel and that two weeks later, while performing another job-related task, he exacerbated the pain to the extent that he could no longer work. His employer, AmTran, initially treated his claim as compensable, but later the claim was controverted. Following a hearing, an administrative law judge denied the claim upon finding that the claimant failed to prove that he had suffered an injury arising out of and in the course of his employment. The Workers' Compensation Commission affirmed and adopted the law judge's decision. Mr. White now appeals, contending that reasonable men impartially weighing the evidence could not have reached the conclusion to deny benefits. We affirm.

In establishing the compensability of his claim, White was required to prove that he suffered an injury arising out of and in the course of employment, and that the injury wascaused by a specific incident identifiable by time and place. See Ark. Code Ann. §

11-9-102(4)(A)(i) (Supp. 1999). Where a claim is denied because a claimant has failed to show entitlement to compensation by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for the denial of the relief sought. Maxey v. Tyson Foods, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999); Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even where a preponderance of the evidence might indicate a contrary result, we will affirm if reasonable minds could reach the Commission's conclusion. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

At the time of the hearing appellant was still employed with appellee, who had provided him a job with a ten-pound lifting restriction. Appellant testified that his schooling had stopped at the eighth grade and that he had trouble reading and writing. He testified as follows regarding his injury. On September 16, 1997, he and Lynette Moore were working with heavy metal at a shearing machine, cutting quarter-inch steel sheets weighing over 200 pounds into sizes suitable for fabrication as bus floors. It took both workers to handle one piece, with Moore lifting one end to the machine and appellant lifting the other, bringing it up and swinging it around into position. Appellant had to stop performing this task when he felt something pop or snap. He told Moore and Waco Parrish that he had hurt himself and needed to go to First Aid. At the health and safety station, nurse Diane Perkins told him thathe had a strained muscle. She gave him "some kind of old aspirin" and sent him back in the plant, where he had to go back to work. The next day he returned to Perkins, complaining that his back was still hurting. She told him to give it three or four days, and he continued his work at the shearing machine.

Appellant testified that he hurt the same part of his back on September 30, 1997, while working with Paul Goins on "drip rails." Appellant said he had to pick up the rails, which were as long as buses, by reaching three feet over a bar, leaning over, reaching down, and lifting straight from the waist. He said that he reported this injury to Perkins by again going to the health and safety station; she did nothing for him, and they argued a little. He went back to work, returned about thirty minutes later with his supervisor, Richard, and was left at the station. After about two hours he began to cry because of the pain, and he went to see Dr. Gil Johnson.

Appellant testified that Dr. Johnson treated him with drugs and rest. The pain never left, and appellant stopped working on May 10, 1998, when he felt he could no longer continue. He received treatment from orthopedist Edward Saer, had injections from Dr. Angtuaco at Dr. Saer's direction, and underwent an MRI by Dr. Doyne, which revealed a broad-based disc bulge with disc material in the right neural. Dr. Saer performed a lumbar laminectomy, and appellant returned to work in March 1999. He had last received an injection for pain on April 7, 1999, about a week before the hearing. Appellant denied having any problems with his lower back before September 1997, stating that back pain associated with his years of work was nothing like the pains for which he had been treated. Lynette Moore testified that while she and appellant were running the shearing machine in September 1997, he told her that he had hurt his back. She did not see the accident itself, but she observed that appellant appeared to be in pain. Her testimony essentially mirrored appellant's testimony regarding the movements required as the two workers cut the metal sheets.

Union representative Emmit Foreman, using notes he had made about appellant's injury, testified to the following events. On September 16, appellant said that he had hurt his lower back and that he had a burning sensation down the middle of his back. On September 30, Foreman returned to health and safety with appellant, who had said that Diane Perkins acted in an unprofessional manner. Appellant was placed on light duty on the 30^th. Foreman testified that he assumed that the two September incidents involved the same injury. Appellant's wife, Sherrie Jean White, testified that she filled in appellant's paperwork because he has difficulty writing. She testified that she drove him to the door of appellee's office and that he brought the forms to the car for her to fill out. She said that when appellant arrived home from work each day between September 16 and 30, she helped him get out of the car because he was in so much pain; he then would take Tylenol or Advil and would lie down, and she would put a cold gel pack on his back. She said that none of this was necessary before September 16, 1997, that there was no improvement through May 1998, that the pain continued to worsen, and that appellant was under a doctor's care from the time of leaving work in May 1998 until March 14, 1999. She denied that appellant had received prior treatment for his lower back.

The medical records and reports in this case include Dr. Johnson's initial injury report of September 30, 1997; office notes of several doctors; MRI reports; and an independent medical evaluation. A deposition given by appellant before he had an attorney was also part of the evidence.

The Commission, adopting and affirming the law judge's decision, found that the only evidence of an injury arising out of and in the course of his employment came from appellant's testimony and his statements to others. The opinion included the following:

I find that the claimant's credibility is subject to question and, accordingly, ... the weight that his testimony and statements are entitled to is diminished. In this regard, I note that the plant nurse and Dr. Johnson both indicated that the claimant demonstrated behaviors when he was not being observed that were drastically inconsistent with the severe pain behavior that he was demonstrating when he was being observed. Moreover, he has continued to demonstrate severe pain behavior, and the nature and severity of that behavior and the pain he describes continues to be drastically inconsistent with the nature and extent of the condition revealed by the medical findings. I also note that Dr. Safman indicated in a November 1, 1997, report, that the claimant seemed to magnify his symptoms.

The Commission also noted that Dr. Saer was puzzled by appellant's persistent pain after surgery, that Dr. Saer viewed new complaints by appellant about his left lower extremity as inconsistent with diagnostic findings, and that neurosurgeon Robert Dickins found that appellant did not describe a pattern of pain consistent with the MRI findings. The Commission contrasted medical records of April 1997 with appellant's testimony, in which he denied a similarity between his back problems before September 1997 with those after that time. An emergency room report of April 1997 showed that appellant complained of severe low back pain and related a two-year history of low back pain radiating into his rightleg, and Dr. Ted Ghormley's notes a few days later stated that appellant had experienced low back pain since October 1994, that his back pain of the last three months had worsened, and that he took pain pills for it.

Appellant complains that the law judge [and thus, the Commission] ignored evidence that appellant had a herniated disk at L4-5. He points to Dr. Johnson's statement in the initial injury report that appellant had a lumbar strain in 1994 but no prior back injury, and to a report of a May 1998 MRI referring to a broad-based disk bulge at L4-5 "with disk material in the right neural foramina which probably impinges on the nerve root." Relying upon the testimony of Lynette Moore and Emmit Foreman, appellant argues that all the indicia that an injury occurred at work are undisputed.

We agree with appellant that there was medical evidence of a lumbar condition that required medical services. We further agree with him that the question then becomes whether he proved by a preponderance of the evidence that he suffered an injury arising out of and in the course of his employment. This court will defer to the Commission in determining the weight of evidence and the credibility of the witnesses. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). Here, the Commission found appellant's credibility to be questionable and his testimony of little weight, and it thoroughly explained its reasons for this determination.

We defer to the Commission on its finding that appellant was not a credible witness, and we agree with the Commission that his testimony and his statements to others constituted the only evidence of how his injury arose. Therefore, we find that theCommission's opinion displays a substantial basis for the denial of the claim.

Affirmed.

Stroud, C.J., and Vaught, J., agree.