ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

JERRY D. HENSLEY

APPELLANT

V.

A.I.D. TEMPORARY SERVICES, INC.

and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

APPELLEES

CA 01-310

OCTOBER 24, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E 815157]

AFFIRMED

This appeal arises from an order from an Arkansas Workers' Compensation Commission's opinion in which the Commission found that the appellant, Jerry Hensley failed to prove by a preponderance of the evidence that he sustained a compensable injury. The Commission reversed an Administrative Law Judge's ("ALJ") opinion finding against the appellees, A.I.D. Temporary Services, Inc., and Insurance Company of the State of Pennsylvania. In that opinion the ALJ found that appellant proved that he sustained a compensable injury. We find no error, and thus affirm the Commission's decision.

Appellant asserts that on December 10, 1998, he injured his back while lifting an axle and carrying it approximately twenty feet to his work station. Appellant had previous back problems, but asserted that he suffered no residual back problems prior to December 10,

1998, because his previous back injury had been resolved with surgery. The ALJ found that the preponderance of the evidence showed that appellant sustained a compensable injury to his low back arising out of and in the course of his employment with the appellee, A.I.D. Temporary Services, Inc.. The ALJ awarded benefits, including expenses of appellant's surgery on December 31, 1998, by Dr. Anthony McBride, and temporary total disability benefits from December 15, 1998, through March 31, 1999. The Commission, reviewing the case de novo, reversed the ALJ's decision. The Commission based its finding that appellant failed to prove that he sustained a compensable injury on the following: 1) medical records indicated that appellant sought pain medication on December 8, 1998, and December 9, 1998, before the alleged injury; 2) appellant saw Dr. McBride on December 15, 1998, and according to Dr. McBride's notes, "over the past two weeks he has developed recurrent right leg pain . . . very similar to his preoperative pain. He has no injuries associated with this"; 3) appellant's witness, Bruce Holiday, described an incident completely different from appellant's description of the injury; and 4) appellant failed to be forthright in his responses to questions at the hearing and at his deposition, including responses to cutting wood, and riding his motorcycle. This appeal followed.

Appellant's first argument on appeal is that the Commission erred and violated his right to due process by substituting its own credibility determinations for that of the ALJ. Appellant contends that to disregard the ALJ's credibility decisions in favor of the Commission's decisions, who neither observe nor hear the demeanor of the hearing witnesses violates the minimal Constitution requirements of giving a citizen a full hearing. Further, appellant submits that "the effect of giving no weight to the ALJ's decision is in effect substituting a judge who heard the evidence and saw the demeanor of the witnesses and examined the records with a judge who examines a cold record." We have recently addressed these arguments in Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000). In Stiger, we rejected the appellant's argument that it was improper and a denial of due process for the Commission to substitute its own credibility judgments for that of the ALJ. Neither the Workers' Compensation Act nor Arkansas case law contains a requirement that the Commission personally hear the testimony of any witness, and nothing in the statutes precludes the Commission from accepting or rejecting any finding made by the ALJ, including findings pertaining to the credibility of witnesses. Id. By allowing the Commission to review evidence or, if deemed advisable, hear the parties, their representatives and witnesses, Arkansas Code Annotated § 11-9-704(b)(6)(A) (Repl. 1996), adequately protects a claimant's due-process rights. Id. When the Commission reviews a cold record, demeanor is merely one factor to be considered in determining credibility. Numerous other factors must be considered, including the plausibility of the witness's testimony, the consistency of the witness's testimony with the other evidence and testimony, the interest of the witness in the outcome of the case, and the witness's bias, prejudice, or motives. Id. "The flexibility permitted the Commission adequately protects the claimant's right of due process of law." Id. As such, we hold that appellant's rights were not violated by the Commission's opinion.

Next, appellant argues that the Commission's opinion denying him benefits was notsupported by substantial evidence. The employee has the burden of proving a compensable injury. Ark. Code Ann. § 11-9-102(4)(E) (Supp. 1999). When reviewing a decision of the Arkansas Workers' Compensation 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. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In making our review, we recognize that it is the function of the Commission to determine 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). Where the Commission denies a claim because of the claimant's failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if its decision displays a substantial basis for the denial of relief. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001).

The Commission relied on several factors in reversing the ALJ's decision. First, the Commission relied on office records indicating that appellant sought prescription pain medication on December 8, 1998, and December 9, 1998. Appellant argued before theCommission that phone calls placed to Dr. Bruce DeYoung's office on December 8, 1998, and December 9, 1998, were for his father. Office records indicate that on December 8, 1998, at 3:15 p.m., Debra Hensley, appellant's mother, called requesting something for pain for appellant. On December 9, 1998, office records indicate that appellant called Dr. DeYoung's office at 9:52 a.m. requesting "something for back pain - McBride gone til Tues. Dec. 15." Dr. McBride was appellant's treating physician for appellant's September 1998 back injury. Dr. DeYoung was appellant's family physician. The Commission found that appellant's explanation was insufficient to overcome the fact that a person with appellant's name called appellant's family doctor for a prescription for back pain the day before the date of appellant's alleged injury because appellant's back surgeon would be out until December 15, 1998, which was the date appellant saw Dr. McBride for the alleged injury.

Second, the Commission relied on the fact that Dr. McBride who saw appellant on December 15, 1998, made a note that "over the past two weeks he has developed recurrent right leg pain . . . very similar to his preoperative pain." Appellant argued that he was afraid for his job and did not mention the December 10th injury to Dr. McBride. The Commission, however, found that appellant did provide information to Dr. McBride that the pain developed over two weeks, which was unnecessary "to his ruse that he did not hurt himself at work."

Third, the Commission found that appellant's witness, Bruce Holiday, described an incident completely different from appellant's description of the injury. Appellant testified that he was lifting an axle and carrying it from one end of the room down to the jig table,about twenty feet away. Appellant testified that his knees buckled, and that he almost fell to the floor. He testified that there were about ten people around, but nobody saw his knees buckle or saw him almost fall while carrying the axle. Bruce Holiday stated that appellant complained of injury after the two men had lifted the side rail of a trailer together.

Fourth, the Commission found that appellant failed to be forthright in his responses to questions. Appellant admitted at the hearing to earning his rent by performing jobs for his landlord including mowing a yard with a lawnmower, bush hogging, and cutting a little wood. Appellant admitted that he had testified at his deposition that he had not cut wood. Appellant submitted that he testified to this at his deposition because he thought he was being asked if he cut wood for money. The Commission stated that it could not "discern the difference between cutting wood for rent and cutting wood for money when claimant was asked what activities he could perform." Also, appellant stated at the hearing that he had not ridden a motorcycle in a while. However, Larry Walters testified to the contrary. Mr. Walters testified that he is a neighbor of appellant, and that in the spring and summer of 1999, appellant rode a dirt bike down the road in front of Mr. Walters' house and in on the back gate of his farm. Mr. Walters testified that this occurred several times.

We hold that the Commission's decision is supported by substantial evidence, based on the evidence that phone calls were placed to appellant's family physician for pain medication before December 10, 1998; Dr. McBride's notes indicating that appellant's pain was similar to his preoperative pain; the testimony of Mr. Holiday indicating a different story than appellant's version; and appellant not being truthful regarding his chopping of wood,and riding his motorcycle.

Affirmed.

Bird and Griffen, JJ., agree.