NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION II

MANILA NURSING CENTER, and MANAGEMENT SERVICES, INC.

APPELLANTS

V.

CAROLYN J. WILSON

APPELLEE

CA01-486

December 19, 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

E912776

AFFIRMED

This is an appeal from a decision of the Workers' Compensation Commission awarding appellee benefits for a back injury she sustained at work. Appellant contends that the Commission's decision is not supported by substantial evidence. We affirm.

Appellee Carolyn Wilson sustained an injury at work on October 9, 1999, and filed a First Report of Injury on October 22, 1999. Appellant, Manila Nursing Center, denied Wilson's claim, alleging that she did not sustain a compensable injury arising out of and in the course and scope of her employment and that her current problems with her back were due to a pre-existing condition. A hearing before an administrative law judge (ALJ) was held on June 27, 2000.

The testimony presented at the hearing revealed that Wilson began working for appellant as a dietary aide in April 1998. This job entailed washing dishes, cleaning, preparing snacks, and helping cook, if needed; these duties required lifting and carrying. Wilson testified that on Saturday, October 9, 1999, the day of her injury, she was a cook instead of an aide, and worked the 11:00 a.m. to 7:00 p.m. shift. Around 4:00 p.m., she lifted a pot with twenty-five to thirty pounds of frozen chicken and bent down to place it in the bottom of the refrigerator to thaw. Wilson stated that her back gave out as she lowered the chicken down into the refrigerator. Although her back hurt, she did not think she was hurt enough to make a report at that time. Wilson stated that when her kitchen co-worker Darlene Martin returned to the kitchen a few minutes later, she told Martin that her back gave out and hurt, and Martin helped her the rest of the shift.

Wilson testified that she took a smoke break at 6:00 p.m.; the director of nursing, Theresa Maxwell, was present during this break. Wilson told Maxwell that she hurt herself when she lifted the pot of chicken, and Maxwell asked if Wilson wanted to fill out a report. Wilson responded that she would be alright. During this break, a resident who liked to joke around "goosed" her, making her jump. Wilson testified that she hurt and felt pain go into her buttocks and leg. Maxwell witnessed this incident.

Wilson performed her normal duties the rest of the night, and her back hurt her when she got home. She also had pain in her left hip. Although she recalled her legs and feet hurting from standing on concrete seven hours a day, she never recalled her back hurting prior to this incident. She began to hurt worse as the days passed, but continued to work. On the Monday following the incident, Wilson told her supervisor, Debbie Russell, that she injured her back on Saturday while lifting a pan of food. She also told Russell that her back hurt, and Russell helped her with her duties. Wilson worked all week and then her back hurt so badly that she could not stand up straight and could hardly walk. She went to Dr. Shaneyfelt the following Monday, eight days after the injury, and reported that she hurt her back on October 9, 1999, lifting a pot of chicken. Dr. Shaneyfelt noted muscle spasms, ordered a CT scan of the left lumbar spine, took Wilson off work, gave her shots, and referred her to Dr. Tyrer for diagnostic tests. Wilson first sought treatment from Dr. Tyrer on October 22, 1999, and related that two weeks prior she had experienced severe backdiscomfort after lifting a heavy pot at work; she also informed the doctor that three days after lifting the pot, she was startled by a resident causing her to jump and resulting in increased back pain. Dr. Tyrer diagnosed a "fairly large left L5 disc herniation" and opined that "based on the medical history provided that the causation of her left L5 disc herniation is the pot lifting incident described by the patient, accentuated by the startle effect the patient experienced a few days thereafter." Dr. Tyrer treated Wilson conservatively and released her for light-duty work on January 10, 2000.

Darlene Martin, Wilson's co-worker, also testified at the hearing. She stated that she worked with Wilson in the kitchen on October 9, 1999. When Martin came into the kitchen after washing dishes, Wilson told her that her back gave out when she lifted a pot of chicken to put it in the refrigerator. She observed that Wilson was in pain the rest of the day. Martin had never heard Wilson complain of back pain prior to that day. Martin was also present during the smoke break when Wilson was "goosed" by a resident, and testified that Wilson did not act any different after the incident than before. Martin also heard Wilson report the kitchen incident to Maxwell during the smoke break prior to the "goosing" incident; she also witnessed Wilson tell their supervisor, Debbie Russell, about the kitchen incident on the Monday following the injury. Martin testified that she recalled Russell helping out more in the kitchen the week after Wilson's injury and stating that Russell was doing so because Wilson had hurt her back and needed help lifting.

Another fellow co-worker, Betty Preston, testified that when she noticed Wilson was moving slowly she asked her what was wrong. Wilson told her that she hurt her back when she was lifting a pot of chicken. Preston stated that she helped Wilson with her work the week following the injury because she could not lift or bend over.

Also testifying at the hearing was Nettie Lambert, Wilson's niece and fellow co-worker. She testified that Wilson told her that she had a slipped disc prior to going to work for the nursing homeand that she would not be able to work there anymore if the nursing home found out. However, Lambert also stated that she had never known Wilson to be hurt or injured other than from the chicken incident, but that she did complain about her back from the time Lambert started working in May 1999. Lambert thought she walked funny prior to the chicken incident.

Appellant's supervisor at the time of the incident, Debbie Russell, testified that Wilson reported her injury on the Monday after the incident. (Russell was off work on the day of the incident and Sunday.) Wilson informed Russell that her back was hurting but that she was okay; Russell stated that Wilson declined to fill out an incident report. Both Theresa Maxwell and Nettie Lambert told Russell that Wilson had hurt her back on Saturday when lifting a pot of chicken. Russell stated that Wilson also told her about the "goosing" incident. Russell testified that during the week following the incident, she stayed late at work to help Wilson with her shift. About ten or twelve days after the kitchen incident, Wilson asked Russell to complete an incident report and to file a workers' compensation claim. Wilson completed the First Report of Injury on October 22, 1999.

After hearing the evidence presented to her, the ALJ made the following findings of fact and conclusions of law: that Wilson had proven by a preponderance of the evidence that she sustained a compensable injury in the course and scope of her employment; that appellant was liable for all reasonable and necessary medical treatment received by Wilson; that Wilson had proven that she remained in her healing period and was unable to earn wages from October 18, 1999, through January 10, 2000; that she had proven by a preponderance of the evidence that she sustained a seven percent permanent impairment to the body as a whole.

The Commission affirmed the ALJ's decision and found unpersuasive the appellant's argument that Wilson failed to prove a compensable injury because she was not performingemployment services at the time of the injury. The Commission found the argument that Wilson injured her back when she was startled during her smoke break unpersuasive for the following reasons: (1) Wilson reported the kitchen incident immediately to co-worker Martin who assisted her with her duties the rest of the night; (2) Wilson reported the injury to charge-nurse Maxwell during the smoke break and prior to the "goosing" incident; (3) Wilson is consistent in her account that she was injured in the kitchen and there is no evidence to support the argument otherwise. Further, based on Wilson's testimony that the injury occurred as she was lowering a pot of frozen chicken into the refrigerator when her back gave out and that such duty was advancing the employer's interest by preparing for the next day's meals, the Commission found that Wilson had shown by a preponderance of the evidence that the injury arose out of and in the course of her employment and that it was identifiable by time and place of occurrence. The Commission also found that the injury was supported by objective findings as Dr. Tyrer stated, within a reasonable degree of medical certainty, that the claimant's left L5-disc herniation was caused by her lifting chicken and not the smoke break incident. On appeal, we view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Wal-Mart Stores v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. Moreover, we will not reverse the Commission's decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. 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. Id.

Appellant argues that there is no evidence to support the Commission's finding that Wilson sustained a compensable injury. Arkansas Code Annotated section 11-9-102(4) (Supp. 2001)provides in pertinent part:

To be compensable, an injury must be established by medical evidence supported by objective findings, which are defined as findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(4)(D); Continental Express v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999).

Appellant first argues that Wilson did not sustain a compensable, work-related injury because the evidence demonstrated that she had prior back problems, that she continued to work after the unwitnessed, alleged chicken incident, that she experienced back pain after the "goosing" incident; and that she denied any need for medical treatment after either incident. The Commission found by a preponderance of the evidence that Wilson's injury was a compensable, work-related injury, and we find that its decision is supported by substantial evidence.

The following evidence supports the Commission's decision. Wilson reported the injury to Darlene Martin immediately after the incident and Martin helped Wilson with her work for the rest of the shift; Wilson also reported the injury to the charge nurse Theresa Maxwell during the smoke break, prior to the "goosing" incident. The Monday following the injury, Wilson told her supervisor Debbie Russell that she was injured lifting the pot of chicken. With the exception of Nettie Lambert's testimony, there was no evidence that Wilson had prior back problems, and Lambert was not aware of any prior back injury Wilson sustained. Debbie Russell also testified that Lambert had told her that Wilson hurt her back lifting the pot of chicken. In addition, there was testimony byWilson, Martin, and Russell that Wilson's back continued to hurt the week following the injury and that she needed assistance in performing her duties that week. The mere fact that Wilson did not seek medical treatment immediately is not dispositive of whether she sustained a compensable, work-related injury.

Appellant also suggests that Wilson did not sustain a compensable work-related injury because the medical records do not support her claim. It first contends that the records do not distinguish Wilson's condition from the chicken incident and the "goosing" incident. However, Dr. Tyrer diagnosed her with a "fairly large L5 disc herniation" and concluded that "based on the medical history provided that the causation of her left L5 disc herniation is the pot lifting incident described by the patient, accentuated by the startle effect the patient experienced a few days thereafter." Thus, the medical records did distinguish her condition between the two incidents, indicating that the "goosing" incident accentuated the original injury. Second, appellant suggests that Dr. Tyrer's opinion is based on pure speculation because Wilson's testimony shows that her pain after the "goosing" incident was more severe, and thus his opinion as to the cause of her pain is entitled to little weight. This argument fails because it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Leach, supra.

Affirmed.

Pittman and Jennings, JJ., agree.