ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION IV

MICHAEL MCGHEE

APPELLANT

V.

GERBER PRODUCTS

APPELLEE

CA00-1027

MAY 16, 2001

APPEAL FROM THE WORKERS COMPENSATION COMMISSION [NO. E814118 and E814361]

AFFIRMED

This is an appeal from a decision of the Workers' Compensation Commission finding that appellant failed to establish that he sustained a compensable injury arising out of his employment with Gerber Products. We find that substantial evidence supports the Commission's decision and affirm.

Appellant, Michael McGehee, raises two points on appeal. First, he urges us to find that the Commission failed to properly identify the date of appellant's injury and that when the correct date of injury is applied, the Commission's decision is not supported by substantial evidence. Second, he asserts that the Commission had a duty to translate the evidence on all issues before it into findings of fact; and, because the Commission failed to make this translation, its decision is not supported by substantial evidence.

In order for Appellant to prevail, he must prove by a preponderance of the evidence that he sustained an injury causing internal or external harm to the body which arose out of

and in the course of his employment and which required medical services or resulted in disability or death. Ark. Code Ann. §§ 11-9-102(5)(A)(i) and 11-9-102(5)(E)(i) (Repl. 1996). He must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102 (5)(A)(1). When we review the Commission's findings, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the finding of the Commission. Linthicum v. Mar-Bax Shirt Co., 23 Ark App. 26, 741 S.W.2d 275 (1987). To reverse a decision of the Commission, we must be convinced that fair-minded persons with the same facts before them could not have reached the same conclusion. International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W.2d 830 (1990).

Appellant argued to the Commission that it should apply an injury date of September 11, 1998, instead of an August 28, 1998, injury date. On appeal to the Commission, he suggested that the "serious conflicts and contradictions" regarding the onset of his injury and the medical evidence when an August 28, 1998, injury date were resolved when a September 11, 1998, date was substituted.

The Commission rejected this argument when it adopted the findings of the administrative law judge (ALJ) in the case The ALJ addressed the issue of whether there was a close temporal relationship between the occurrence of the injury and the alleged offending employment activity as follows:

No expert opinion on causation is specifically stated by any of the physicians involved in this case. At best, these physicians are only acknowledging that the type of employment activity described by claimant (i.e. constantlifting/turning) could logically have played a causal role in producing his most recent episode of complaints and that if the onset of these complaints occurred as he describes (i.e. contemporaneously with the performance of these activities), then a cause and effect relationship between the activity and the onset is likely. This type of medical "opinion" would only be valid, if the close temporal relationship were proven.

. . .

In this case, the only direct evidence to establish the onset of symptoms and its temporal relationship with the alleged offending employment related event or activity is the claimant's own testimony. Although the claimant's testimony is that of an interested party, and is never considered uncontradicted, if this testimony is credible, it may be sufficient to prove any fact which it is competent to address. Certainly, the claimant's testimony would be competent to prove the time, place, and circumstances surrounding the onset of his lower back complaints and any temporal relationship between the onset of these symptoms indicative of an injury to his back and any particular employment related incident or activity.

However, it is my opinion that the claimant's testimony concerning the time, place, and circumstances of the onset of his lower back symptoms is not sufficiently credible to prove the existence of a close temporal relationship between his current episode of lower back difficulties and any specific employment related incident or his employment related activities in general.

We find no error in the ALJ's reasoning and find that substantial evidence supports the Commission's disregard of appellant's claim that the Commission should find that a September 11, 1998, injury date should be applied. The medical evidence established that appellant's lower back and lower extremity complaints were the result of a physical defect of the lumbar spine, in the form of a herniated disc producing nerve impingement. This evidence indicated that this underlying defect had been present since at least 1996 and perhaps as early as 1989. The medical record also indicates that appellant sought treatment from a physician on August 28, 1998, for difficulties associated with a stomach virus. Thedoctor noted complaints of nausea, vomiting, and watery diarrhea with "no other symptoms." Appellant sought treatment from another doctor the following week who recommended appellant take off work for the next seven days due to his situational depression. Appellant offered no explanation for this second doctor's failure to note any symptoms involving his lower back and lower extremities.

On September 10, 1998, medical records show that claimant continued with complaints of diarrhea, nausea, and weakness, with the additional complaint of lower back pain and pain on his right side, but that appellant expressed a history of low back pain and that he was not sure if this pain was related to his diarrhea or not. The first doctor's report that mentions any employment related etiology for these complaints is September 17, 1998, which records that these complaints began "last Friday" which would have been September 11, 1998.

Throughout appellant's testimony to the ALJ, he repeatedly attempted to assert an injury date of August 28, 1998, yet, even in that testimony he identified the date of injury as April 28 and the ALJ interjected a query as to whether appellant meant April or August.

In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). In the present case, the Commission affirmed the findings of the ALJ and we are not convinced that fair minded persons faced with the same evidence could not reach the same conclusions. Therefore, weaffirm the Commission's decision.

Appellant's second argument urges us to find that the Commission had a duty to translate the medical evidence in such a way to conclude that September 11, 1998, was the correct injury date. In his brief, he states that "the Commission failed to translate any evidence regarding the submitted issue of the correct injury date." Appellant acknowledges that it is understandable that the ALJ would find that the appellant's testimony lacked credibility when the ALJ was provided an injury date of August 28, 1998.

It is the appellant's duty to prove a specific injury in the course of employment. The Commission has no duty to weigh the evidence in such a way as to provide a date of injury that would allow recovery, particularly when it would require them to ignore appellant's testimony identifying a different date of injury.

Accordingly, we affirm.

Jennings and Robbins, JJ., agree.