ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION II

J-MAR EXPRESS, INC. and SUPERIOR NAT'L INS. CO.

APPELLANTS

V.

CARL R. HUTSON

APPELLEE

CA00-1172

May 2, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E901217]

AFFIRMED

Appellants, J-Mar Express, Inc., and Superior National Insurance Company, appeal the Arkansas Workers' Compensation Commission's finding that appellee, Carl R. Hutson, sustained a compensable injury to his back. Appellants further contend that they were entitled to a statutory setoff because wages were paid to appellee during the period of his disability. We affirm.

Appellee testified at the hearing before the administrative law judge that on January 7, 1999, he was employed by J-Mar Express as a truck driver and was driving from Searcy, Arkansas to Denver, Pennsylvania. According to appellee and to Jerry Bray, the former director of operations for J-Mar Express, the truck had a defective drivers' seat. Appellee testified that no matter how he adjusted the seat, each time the truck hit a bump, the seat would "bottom out," jarring him. When he arrived in Pennsylvania, appellee was "hurting

so bad I couldn't hardly sit up in the truck" because of lower back pain that radiated down his legs. According to appellee, he did not exhibit those symptoms prior to leaving on the trip. The seat problems continued on his return trip, and he had to stop several times and lie in his bunk until his pain eased. Appellee arrived in Searcy on the afternoon of January 9, a Saturday, when no one was at the J-Mar Express office. Upon arrival, appellee was in extreme pain and had difficulty walking or sitting.

On the following Monday, January 11, he went to the office and reported his injury, and he saw a physician, Dr. Larry R. Killough, the next day. A memorandum prepared by Dr. Killough that same day indicated that appellee was suffering from back pain that radiated down the left leg with numbness and pain. Beside that notation was the date "January 7, 1999." On February 10, 1999, surgery was performed, and both the preoperative and postoperative diagnoses indicated a displaced intervertebral disk. In a letter dated May 18, 1999, and in his deposition of July 16, 1999, Dr. Killough opined that, within a reasonable degree of medical certainty, the major cause of appellee's injury was his operation of the truck on January 7, 1999.

Appellants contend that the Commission erred in finding that appellee sustained a compensable injury. Specifically, appellants note that appellee did not report his injury during his Pennsylvania run and did not seek medical treatment until January 12. Appellants also note that the injury report was dated January 18 and described the "flare-up" of a previous back injury. They further contend that appellee had previous experience with obtaining benefits and therefore should have timely reported his injury. Appellants observethat Dr. Killough's notes of January 12 and 15, and several letters written by appellee's surgeon do not mention that the injury was work-related. Dr. Killough's deposition testimony, appellants assert, further suggests that his opinion was based on his desire to help appellee receive benefits, and his opinion was based on the history provided by appellee.

In sum, appellants argue that the Commission should not have believed appellee's testimony regarding how and when the injury occurred. The credibility of witnesses and the weight to be accorded to their testimony, however, are matters within the province of the Commission. See, e.g., ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 72, 977 S.W.2d 212, 216 (1998). Thus, the Commission was entitled to give weight to appellee's testimony and to disregard the alleged inconsistencies noted by appellants. We affirm the Commission's decision on a question of fact if that decision is supported by substantial evidence. See, e.g., Bice v. Waterloo Indus., 71 Ark. App. 1, 2, 26 S.W.3d 129, 130 (2000). Given the evidence presented to the Commission, we cannot say that substantial evidence did not support the Commission's conclusion. We affirm on this point.

Appellants also argue that the Commission erred in finding that they were not entitled to a setoff for wages paid to appellee during his period of disability. Appellants rely on Ark. Code Ann. § 11-9-807 (Repl. 1996), which provides as follows:

Appellants contend that because J-Mar Express continued to pay wages to appellant duringhis period of disability, appellee is not entitled to temporary total disability benefits for that same period.

The Commission found that the parties were in agreement in their testimony, and the funds were "advanced with the expectation of repayment." Both appellee and Joey Bray of J-Mar Express testified that the funds provided to appellee were in the form of a loan. Appellants note that there was no written loan agreement, but the credibility of witnesses and the weight to be accorded to their testimony are matters within the province of the Commission. See, e.g., ERC, supra. As a consequence, the Commission is entitled to give weight to the testimony supporting appellee's position and disregard the alleged inconsistencies. Thus, we cannot say that the Commission's decision that the funds were advanced with the expectation of repayment was not supported by substantial evidence. We affirm on this point as well.

Neal and Baker, JJ., agree.