ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION IV

CALVIN WHITE

APPELLANT

V.

ARKANSAS ELECTRIC CO-OP, INC. AND CROCKETT ADJUSTMENT, INC.

APPELLEES

CA02-1207

June 25, 2003

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION COURT

[NO. F103456]

REVERSED AND REMANDED

Appellant Calvin White, a twenty-two year old laborer, appeals the decision of the Arkansas Workers' Compensation Commission (Commission) denying him benefits for his back injury. For reversal, appellant argues that the Commission erred in failing to find that his injury was causally related to his employment. We agree and reverse and remand.

Appellant testified that without submitting an employment application with the corporation, he was directly hired by Jeff Waters, his supervisor, as a tree trimmer and cutter for appellee, Arkansas Electric Co-op. Appellant, Waters, and Russell Falconburg, a co-worker, were removing damaged trees and debris from an ice storm in Roland, Oklahoma. During the entire three-week period of appellant's employment, the men worked ten to eleven hours each day on a four-day work week. The three men traveled together from their homes in Jasper, Arkansas, to Oklahoma, and they stayed during the work week in an

apartment that Waters and Falconburg had rented.

Appellant testified that on Tuesday, February 27, 2001, at approximately 4:30 p.m., while pulling on a log he was trimming, he experienced a sharp pain in his back. Appellant described the pain as "real sharp and tense there for a few seconds" and his back became stiff and sore thereafter. Appellant stated that after he felt the sharp pain, the crew trimmed another tree and then returned to the apartment where they watched television and went to bed. After sleeping on a mat on the floor Tuesday night, appellant awoke the next morning feeling very sore; however, he did not say anything about his condition until he and his supervisor arrived at the job site. When Waters asked him to drive the bucket truck, he informed Waters that he was not able to do so because his back was hurting, and he could not lift his legs to work the pedals. He testified that he told his supervisor that "it would just about bring me to tears when I lifted my leg." According to appellant, Waters then asked him if he needed to see a doctor, and after he responded in the affirmative, Waters drove him to the apartment. The same day, appellant telephoned his mother, and at his request, she traveled to Oklahoma and drove him to Jasper where he sought medical treatment.

Appellant testified that he was initially treated the following day at the Jasper Clinic on March 1, 2001. The medical records reflect that appellant "popped something out in his lower back yesterday" and that he had limited range of motion to his spine, muscle spasm, and back pain. Appellant was given a steroid injection and was prescribed medication. On March 6, 2001, appellant returned to the doctor's office, and the records indicate that his back was "no better" and that the pain was "about the same." On March 13, 2001, appellantagain was treated at the Jasper Clinic, and their records reflect that appellant continued to experience a limited range of motion of the spine and suffered back pain. An MRI was performed on March 15, 2001, at the North Arkansas Regional Medical Center in Harrison. The MRI report showed that appellant sustained a herniated nucleus pulposus in his back at levels L3-4 and L4-5.

On April 18, 2001, appellant was examined by Dr. Richard McCarthy at the Arkansas Spine Center in Little Rock. After reviewing appellant's MRI report and performing a physical examination, Dr. McCarthy diagnosed appellant with two herniated discs and stated that "[a]s soon as we can sort out his workers' comp claim, we will plan on doing surgery at both levels."

Vicki White, mother of appellant, testified that she received appellant's telephone call at approximately 9:00 a.m. on Wednesday morning and stated that on the three and one-half hour drive from Oklahoma, she had made a telephone call to the Jasper Clinic and scheduled an appointment for appellant the next day. According to Ms. White, her son had not experienced any back problems prior to the incident and had worked without problems with her and his father installing wood floors.

Russell Falconburg testified that he was working with appellant at the time of the incident in Oklahoma. Falconburg affirmed that he was with appellant all day Tuesday and was with him Tuesday night. Falconburg acknowledged that although appellant did not tell him that he had hurt his back on the job Tuesday, he could have hurt it and not have said anything. Falconburg stated that on Tuesday, February 27, 2001, they had used chain sawsand moved brush. The following morning, February 28, 2001, appellant was having serious pain in his back.

Appellant's supervisor, Jeff Waters, testified that appellant did not complain on Tuesday, February 27, 2001, of a back injury after working a full shift. Waters did state that the next morning, appellant told him that he was not able to drive the bucket truck because he could not lift his legs and his back hurt; however, appellant did not state to him what caused the injury to his back. Further, Waters testified that appellant informed him of his status after he was treated by a physician.

The Administrative Law Judge (ALJ) determined that appellant failed to prove by a preponderance of the evidence that he sustained an injury arising out of and in the scope of his employment. In an order filed on February 5, 2002, the Commission adopted and affirmed the findings of the ALJ. From that order comes this appeal.

When reviewing a workers' compensation claim that has been denied, our substantial-evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for denial of the relief sought by the worker. Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). In reviewing a decision of the Workers' Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wackenhut Corp. and St. Paul Fire & Marine Ins. Co. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333(2001). In an appeal from the Workers' Compensation Commission, the question is not whether the evidence would have supported findings contrary to those of the Commission; rather, the decision of the Commission must be affirmed if reasonable minds might have reached the same conclusion. See Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001); Barnett v. Natural Gas Pipeline Co., 62 Ark. App. 265, 970 S.W.2d 319 (1998). The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). The Commission may accept only those portions of testimony that it determines are worthy of belief. Tucker v. Roberts-McNutt, 342 Ark. 511, 29 S.W.3d 706 (2000).

The requirements necessary to establish the compensability of a specific accidental injury are set out in Arkansas Code Annotated section 11-9-102(4)(A)(i)(Repl. 2002), which states that a compensable injury is "an accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death." Further, an injury is defined as accidental only if it is "caused by a specific incident and is identifiable by time and place of occurrence."

In its adoption of the findings of fact and conclusions of law of the ALJ, the Commission found that appellant failed to prove that he sustained an injury arising out of and in the course of his employment. In support of this, the ALJ opined that although appellant specified the time of the onset of pain while lifting the log, the testimony of his co-workers indicated that appellant did not know the cause of his back pain the following day. Further, the ALJ found that the only testimony indicating that appellant sustained a work-related injury was the testimony of the appellant; however, the ALJ did not find that appellant lacked credibility. See Lowe v. Car Care Marketing, 53 Ark. App. 100, 919 S.W.2d 520 (1996).

Contrary to the findings of the Commission, the testimony of the appellant was not the only evidence presented supporting his contention that he was injured while lifting a log in the course of his employment on February 27, 2001. The uncontradicted evidence established that for eleven hours on Monday and until 4:30 p.m. on Tuesday, appellant was able to use a chainsaw to cut trees and remove debris. After leaving the job site, appellant, his supervisor, and co-worker spent the evening relaxing and sleeping at the apartment. According to appellant's testimony, the pain he experienced the following morning prevented him from being able to operate a bucket truck. His condition was such that his supervisor inquired about the necessity of him seeing a doctor and drove him to the apartment so that he could be transported to Jasper for medical treatment. This evidence, abeit circumstantial, corroborates appellant's claim of an on-the-job injury and cannot be ignored by the Commission in its de novo review of the ALJ's determination of appellant's claim. Likewise, the supervisor's observation of appellant between the date of the incident described by appellant and his return to work the following day is evidence that negates, at least circumstantially, the possibility of appellant incurring his diagnosed medical condition in an off-the-job injury.

Additionally, the medical evidence corroborates appellant's testimony as to the nature of the specific injury. We note that the initial medical report provides that appellant "popped something in his lower back yesterday" and that he "seemed to be stiff Tues[day] [and] then was in `bad' pain Wed[nesday] a.m." Dr. McCarthy's report dated April 18, 2001, states:

Contrary to the Commission's findings, appellant's testimony was not the only evidence that he suffered an on-the-job injury in the course of his employment on Tuesday, February 27. Thus, the Commission failed to make a proper de novo review of the record, which resulted in the Commission making erroneous factual findings that it expressly relied upon in reaching its decision to deny benefits. See Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000) (citing Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999)) (holding that a case must be remanded for further findings where the Commission failed to make a proper de novo review of the record that "resulted in the making of erroneous factual findings upon which the Commission expressly relied in reaching its decision to deny compensation"). Because we are left to speculate concerning what evidence the Commission intended to rely on when making its decision, we reverse and remand to the Commission for its full examination of the relevant evidence presented in this cause of action. Id.

Reversed and remanded.

Pittman and Robbins, JJ., agree.