ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION I

LOVE BOX COMPANY AND

INSURANCE MANAGEMENT ASSOCIATION,

APPELLANTS

v.

ANDREW SALLEY,

APPELLEE

CA03-87

SEPTEMBER 3, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

NO. E913211 & E913896,

AFFIRMED

Sam Bird, Judge

The appellee in this workers' compensation case, Andrew Salley, was employed by appellant, Love Box Company (Love). Salley was injured at work on or about August 30, 1999. He claimed that both his left leg and back were injured. Love accepted as compensable Salley's left leg injury; however, it declined to accept Salley's claimed back injury. On May 1, 2000, an Administrative Law Judge (ALJ) ruled that Salley's low-back injury was not compensable. Salley appealed to the Workers' Compensation Commission. The Commission, on September 1, 2000, ruled that the ALJ had erred and that Salley had sustained a compensable injury in the form of a back injury for which he is entitled to receive benefits. Love appealed that decision to this court; however, we dismissed the appeal because there had not yet been a final determination on the issue of temporary total disability benefits. Accordingly, the ALJ had the opportunity to review Salley's claim a second time. On October 21, 2001, the ALJ found in accord with the prior decision of the Commission and awarded Salley, among other things, temporary total disability benefits from October 22, 1999, through a date when he began working for Tyson Foods, and a second award of temporary total disability benefits beginning on the date he last worked for Tyson Foods and continuing through a date yet to be determined. The ALJ also awarded all reasonable and necessary medical treatment in connection with Salley's low-back injury. The Commission affirmed and adopted the decision of the ALJ, and Love appeals.

Love contends on appeal that the decision of the Workers' Compensation Commission was not supported by substantial evidence. Specifically, Love argues (1) that Salley is not entitled to benefits for a low-back injury and (2) that he is not entitled to additional temporary total disability benefits. We affirm the decision of the Workers' Compensation Commission.

Our standard of review is well-settled: In determining the sufficiency of the evidence to support the findings of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we will affirm if those findings are supported by substantial evidence. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id.

Andrew Salley's work included that of a band saw operator. He had performed this particular job since August of 1996. Part of this job required him to pull pieces of wood out of a dumpster. These pieces were approximately forty inches long, four inches wide, and about twenty or thirty pounds. Additionally, the dumpster was deep enough that he had to bend to retrieve the pieces of wood.

Salley testified that on August 30, 1999, he was performing this task when his leg started "bothering him." He informed his supervisor that his leg was "bothering him," and that he might have to go home, but he declined an offer to see a doctor. Salley's supervisor testified at the hearing that he noticed that Salley was limping badly. Salley stated at the hearing that his leg continued to bother him over the weekend, thus prompting him to call his supervisor and inform him that he would not be able to come to work because of this problem.

On September 7, 1999, Love arranged for Salley to visit the company physician, Dr. Gary Moffitt. According to the Workers' Compensation Form AR-3 completed by Dr. Moffitt, Salley complained of left leg and low-back pain. However, in a letter to Love, Dr. Moffitt failed to mention Salley's back pain, noting only that he presented with left leg pain, and diagnosing only a leg strain. Dr. Moffitt released Salley to return to work, but advised him to limit bending at the waist. The following day, Salley returned to Dr. Moffitt, reporting that he had "persistent pain in his left leg in the posterior aspect of his knee and going up along his left leg laterally into the hip area," according to Dr. Moffitt's notes. Dr. Moffitt also recorded in his notes that Salley's diagnosis was "mostly left leg pain without objective findings." Salley was later released for regular duty on September 13, 1999.

On September 14, 1999, Salley attempted to return to his regular job duties; however, according to him, this exacerbated his symptoms. Thus, Salley returned to Dr. Moffitt's clinic for further treatment and was seen by Dr. Baker. In correspondence to Love dated September 14, 1999, Dr. Baker indicated that Salley reported pain "all up the lateral aspect of his leg by his indication, all the way up his thigh and into his back." Salley was released to work, but with restrictions.

On September 24, 1999, Salley was again examined by Dr. Moffitt for "left leg pain and low back pain." Dr. Moffitt noted that Salley's "condition seems to be improved." As a result of this examination, Dr. Moffitt released Salley without restrictions.

On October 22, 1999, Salley left work at Love to go home and prepare for his wedding rehearsal that evening. Salley testified at the hearing that his pain had slowly started to come back by the time he made it home. Dorothy Salley, who became Salley's wife, testified at the hearing that she provided pain pills to her husband due to his complaints of pain both on the evening of October 22 and the day of October 23, 1999. Salley was married October 23, 1999, and began a planned two-week vacation. Salley testified that on the Monday following his wedding he called Love and reported that his back pain had increased.

On October 26, 1999, Salley was examined by Dr. Bryan E. Abernathy. According to Dr. Abernathy's letter to Love, Salley reported a recurrence of leg pain, "starting along the dorsal foot extending along the lateral anterior tibial region, then just above the leg begins to become posterior into the buttock and then the lower back." He prescribed medication and a follow-up appointment. Dr. Abernathy also indicated that in the absence of improvement he would "consider an MRI and/or physical therapy, etc." Form AR-3, which Dr. Abernathy completed, showed diagnoses of pain in claimant's left leg along with low-back pain.

Salley returned to Dr. Moffitt's office on October 28, 1999, reporting that his left leg was giving way, which almost caused him to fall. Salley informed Dr. Moffitt that he had reported to the emergency room as a result of his worsening pain, and was told that he may have a disc herniation. At this point, Dr. Moffitt recommended an MRI, which was performed on November 4, 1999. The MRI report included a clinical history of "low back pain radiating to the left lower extremity." The test results indicated disc herniations at L4-5 and L5-S1. Shortly after the MRI was performed, Salley returned to work for one week, primarily shredding paper and conducting inventory in the maintenance room. After one week, Love ran out of jobs that fell within Salley's work restrictions, and he was placed on short-term disability.

Salley reported to Dr. Vincent Runnels, a neurosurgeon, on December 28, 1999. In a letter to Love, Dr. Runnels noted that Salley's straight leg raising test was positive on the right side. He also indicated that claimant "had a -2 weakness of his great toe on the left." He further noted that these findings were consistent with a disc herniation at L4-5, which was in accord with the MRI. Dr. Runnels also indicated that Salley might be a surgical candidate, assuming that conservative measures proved ineffective. A letter written by Dr. Runnels on March 16, 2000, indicated that Salley's injuries are consistent with his employment activities.

In September of 2000, Salley took a job with Tyson Foods. Shortly before he took the job he went to see another doctor. This doctor, Dr. Schmidt, found Salley to be "stable," "in no acute distress," and also able to "climb onto and off of the exam table without difficulty." Just after starting his employment with Tyson Foods, Salley returned to Dr. Schmidt with complaints of back pain which he attributed to work. Salley was excused from work for two days. During a follow-up one week later, Dr. Schmidt found that Salley had returned to work and opined that Salley felt that he was doing better and able to tolerate working a full day. He also stated that Salley's pain had improved and that he could continue working, suggesting a follow-up four months later. Salley did not return to Dr. Schmidt. However, Salley testified at the hearing that he left Tyson because of continued problems with his back and leg. Furthermore, Salley testified that he told Tyson about his work restrictions that he had been given by Dr. Runnels. Salley testified that he did not believe that he ever lifted more than twenty-five pounds when he worked for Tyson. After leaving Tyson, Salley visited Dr. Runnels again and has been seen by Dr. Knox as well in regards to possible surgery on his back.

As its first point of appeal, Love asserts that there is not substantial evidence to support the award of benefits for Salley's low-back injury. To support its contention, Love begins its brief by arguing that Salley's testimony in this matter was not credible. At the hearing, Love introduced documentation, namely a daily attendance report, which provided that Salley had reported an injury to his back due to his lifting of a sofa in July of 1998. Salley denied that any incident occurred in which he picked up a sofa and carried it to his home; however, he testified that he did remember "having a guy remove a sofa from me once." The document reflected that Salley was supposed to furnish Love with a doctor's note, but Love provided no such document. Thus, there was no evidence that Salley received treatment for a back injury in July of 1998. Furthermore, Salley performed his job, which consisted of heavy manual labor, for more than a year after this alleged incident.

At the hearing, Love also introduced surveillance tapes that documented Salley performing a variety of activities, including going to the grocery store, holding a waterhose over his head while washing his pick-up truck, and being on his hands and knees looking under his pick-up truck with an automobile part in his hand. These activities are alleged by Love to have exceeded the restrictions placed on Salley by Dr. Runnels. Dr. Runnels had placed restrictions on Salley which included no lifting of more than twenty-five pounds, no repetitive bending or stooping, and no overhead work. Love argues that Salley was not truthful regarding the alleged incident in which he injured his back while lifting a sofa in July of 1998, and that the videotape presented at the hearing shows him doing various activities that are outside his restrictions as given by his medical providers. However, the opinion of the Commission filed September 1, 2000, stated as follows:

As part of its first point of appeal, Love also argues that Salley failed to prove any back injury connected with his work for appellant. It contends that Salley must have suffered some injury while off work for his wedding the weekend of October 23, 1999. The Commission found that Salley injured his back while at work on August 30, 1999, noting that he has satisfied all the elements of a specific incident injury.

According to the Commission, the injuries suffered by Salley were herniations at L4-5 and L5-S1. It notes that Salley was apparently misdiagnosed by his initial treating physician, Dr. Moffitt, who only diagnosed a leg strain, in spite of Salley's complaints ofleg and back pain on his initial visit. The Commission further notes that it gives no weight to the opinion of Dr. Moffitt, opining that his standard of care was not exemplary. The nature of the complaints by Salley regarding his back and leg are supported by form AR-3, completed by Dr. Moffitt after Salley's initial examination. Additionally, the Commission went on to note that there were other indications that Salley suffered a back injury as well, evidenced by complaints the following day, again to Dr. Moffitt, along with the evidence presented regarding Dr. Runnels treatment, which did not indicate that he considered the back injury to be separate from the leg injury. In fact, the Commission pointed out that Dr. Runnels, a specialist, opined that "[i]t certainly seems reasonable to me that [claimant] did this at work, the way he describes the injury and the activities that he does at work."

The arguments put forth by Love are matters of credibility and the weight and sufficiency to be given evidence, which are clearly within the province of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). Furthermore, it is well established that it is within the Commission's province to weigh all the medical evidence and to determine what is most credible. 3M v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). Once the Commission has made its decision on issues of credibility, the appellate court is bound bythat decision. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998). Therefore, based on the information before the Commission, we cannot hold that it erred in finding that there was substantial evidence to support a finding that Salley sustained a compensable back injury for which he is entitled to receive benefits.

For its second point of appeal, Love contends that Salley is not entitled to additional temporary total disability benefits. Love primarily relies upon Ark. State Hwy. Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), to support its argument that Salley should be prevented from receiving temporary total disability benefits. Breshears, in part, stands for the proposition that "[t]emporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages."

Love argues in part that because Salley was able to work because he had been released on at least two occasions without restrictions, and that the restrictions placed on him after October 22, 1999, have been primarily regarding his diagnosed back injury, which it argues again is not compensable. Love also argues that the videotape presented at the hearing proved that Salley was able to earn wages, since he was shown going to the grocery store, holding a water hose over his head while washing his pick-up, and on his knees looking under his pick-up with an automobile part in his hand. Additionally, Love argues that since Salley took a job with Tyson for approximately eight months, then he was able to earn wages. Finally, Love argues that the medical evidence indicates that Salley is not entitled to temporary total disability from the date that he last worked for Tyson through a date to be determined. Love supports this last argument with evidence that Salley had visited with Dr. Schmidt shortly before and during the first half of his employment with Tyson, and, according to Love, his findings should prevent Salley from receiving temporary total disability benefits.

The Commission supports its decision to award temporary total disability benefits by noting that Dr. Runnels had opined that Salley's disc herniation at L4-5 was symptomatic; that Salley should take certain prescribed medication and conduct certain exercises; that surgery may be necessary; and that he should not engage in heavy lifting, but should be retrained. The Commission also noted that Salley testified that in January of 2000 he reported to work when Dr. Runnels released him with restrictions; however, Love could not accommodate his restrictions. While Salley did return to work at Tyson for approximately eight months, an unsuccessful attempt to return to the workforce does not act as a bar to additional temporary total disability benefits. See Farmers Cooperative v. Sidney Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).

Once again, the arguments put forth by Love above are matters concerning questions of credibility and the weight and sufficiency to be given evidence, which are clearly within the province of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). Therefore, based on the information before the Commission, we cannot hold that it erred in finding that there was substantial evidence to support a finding that Salley is entitled to temporary total disability benefits.

Love argues in the alternative that this court's opinion "reflect in the temporary total disability benefits the short-term disability previously paid to appellee, and the one-week return to work in November 1999." In paragraph one of the Commission's Opinion and Order filed October 17, 2002, it appears that credit for any short-term disability previously paid to Salley has already been granted. However, to the extent that it has not, we grant this credit. As to Love's request regarding credit for the "one-week return to work," we do not find that they have been given credit for this period. We grant this request as well.

Affirmed.

Gladwin and Griffen, JJ., agree.