ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

KURT LOYD

APPELLANT

v.

RIVERSIDE FURNITURE CORP. and SECOND INJURY FUND

APPELLEES

CA03-65

SEPTEMBER 17, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[F012689, F012690]

AFFIRMED

Karen R. Baker, Judge

Appellant, Kurt Loyd, appeals from a decision by the Workers' Compensation Commission affirming the Administrative Law Judge (ALJ) and denying benefits. On appeal, appellant asserts that the Commission erred in denying his claim for benefits for a back injury sustained on October 18, 2000, in that there was not substantial evidence to support the denial of his claim.1 We affirm.

Appellant has been employed with Riverside Furniture for twenty years. During that time, he performed different tasks for the company, including operating a rip saw and a lumber-stacker operator. Appellant testified that he previously underwent back surgery at L5-S1 as a result of a back injury that he received in April 1990. After recovery, he returned to work for Riverside Furniture and stated that none of his job duties were modified following his injury. In January 2000, appellant was working as a lumber stacker operator, a position which he described as a "push-button job," when he heard his back pop. He began hurting and had pain down his legs. Appellant underwent surgery by Dr. Ron Williams, a neurosurgeon, for a herniated disc at the same location, L5-S1. Appellant admits that he did not report the January 2000 injury as job related and asserts that he feared losing his job if he reported the injury as job related. He stated specifically, "I never told my employer or filled out any reports in January 2000 where I was contending that this happened at work. There was no question that I did not report this injury." In April 2000, appellant returned to work as a lumber stacker operator for Riverside Furniture. His medical expenses relating to the January 2000 injury were submitted to his group health insurance, and he received indemnity benefits under a short term disability plan.

Appellant testified that on October 18, 2000, he was moved to the planer mill due to the lack of work to be done as a lumber stacker operator on that day. After less than one hour at work, he was engaged in hand-stacking eight-quarter gum at the planer mill, when his back began to hurt. He testified that he told his co-workers, Charlie Groboski and Frank Jenkins, that he had injured his back and that he reported the incident to his supervisor, Joe Anderson. Appellant went to the emergency room that day. He continued under Dr. Williams's care, as well as Dr. Ackerman's, Dr. Bruffett's, and Dr. Reddy's.

Charles Groboski testified that he was a lumber stacker operator, and his station was just next to appellant's. He explained that the lumber stacker only operated a machine, and the position is considered to be automated. Occasionally, the operator has to handle lumber. On these occasions, the lumber will come up over the unscrambler more than one board at a time. To adjust the boards, the operator flips the board, without ever picking up the entire board. Mr. Groboski testified that on the morning of October 18, 2000, while working as a lumber stacker operator appellant was complaining of back pain. Appellant was complaining of back pain before he began his job duties, and appellant left work within the hour. Mr. Groboski stated that, "I just turned around and he was gone." It was not until months later that he learned that appellant was claiming a work-related injury.

Joseph Anderson testified that he was appellant's supervisor in October 2000. As his supervisor that day, Mr. Anderson testified that appellant was not working in the planer mill; instead, he was working as a lumber stacker operator. He stated that appellant did not tell him that he had injured his back at work. Appellant simply stated that his back was hurting, and he was going home. Mr. Anderson advised appellant that he needed to see the plant superintendent, Keith Underhill; however, appellant did not do so. Mr. Underhill testified that had he been notified, he would have had appellant fill out a Form N and then report to the plant manager, Gary Binz. The information then would have been given to Mr. Evan Breedlove, the director of human resources at Riverside. Five days after the alleged injury, on October 23, appellant called Mr. Binz to inform him that he had injured his back while at work.

Mr. Underhill's testimony was consistent with Mr. Anderson's and Mr. Groboski's testimony in that appellant was not working in the planer mill on October 18, 2000. He further testified that he knew this because of the amount of lumber received on October 17, 18, and 19. At least five loads of lumber were received each day. This amount of lumber would result in a full day's work at the inspection station where appellant worked as a lumber stacker operator. Following a hearing, the ALJ found, with regard to the January 2000 incident, that appellant failed to prove by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment and that he failed to prove by a preponderance of the evidence the elements necessary to establish a compensable injury. The ALJ also found, regarding the October 2000 incident, that appellant failed to prove by a preponderance of the evidence that he sustained an injury arising out of and in the course of his employment and that he failed to prove by a preponderance of the evidence the elements necessary to establish a compensable injury. The Commission adopted the findings and conclusions of the ALJ. Appellant then appealed the Commission's decision regarding only the alleged injury of October 18, 2000.

When reviewing a decision of the 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 we affirm that decision if it is supported by substantial evidence.

Campbell v. Randal Tyler Ford Mercury Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). 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. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 49 S.W.3d 667 (2001)(substituted opinion denying rehearing). Furthermore, the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). Appellant's only argument on appeal is that there was not substantial evidence to support the Commission's denial of his claim for an injury to his back sustained on October 18, 2000. As the claimant, appellant had the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002). A "compensable injury" is one "arising out of and in the course of employment." Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). "In order to prove a compensable injury [the claimant] must prove, among other things, a causal relationship between his employment and the injury." Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (2002) (citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (1997)). Additionally, Arkansas Code Annotated section 11-9-102(4)(D) provides: "A compensable injury must be established by medical evidence supported by `objective findings' as defined in subdivision (16) of this section." "Objective findings" are "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102(16); Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001).

At the hearing, Mr. Anderson, who was appellant's supervisor that day, Mr. Groboski, and Mr. Underhill all testified that appellant was not working in the planer mill on October 18, 2000. Rather, appellant was working as a lumber-stacker operator. The position of lumber-stacker operator was described by appellant himself as a "push-button job." Mr. Groboski specifically testified that appellant was complaining of back pain on the morning of October 18, 2000, before he ever began his work duties. Although Mr. Groboski's work station was right next to appellant's, Mr. Groboski was not aware that appellant injured his back that morning. He stated that he turned around one moment, and appellant was gone. Mr. Anderson testified that appellant did not tell him that he had injured his back. Appellant simply stated that his back was hurting and that he was leaving. Further, appellant admittedly failed to advise the plant superintendent of any injury that day even though he testified that he was aware that he was required to report all work-related injuries. Appellant finally reported the incident to the plant manager on October 23, 2000, five days later. Here, the Commission, in affirming the ALJ, resolved the conflicting testimony in favor of Riverside Furniture. 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. Winslow v. D & B Mechanical Contractors, 69 Ark. App. 285, 13 S.W.3d 180 (2000) (citing American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998)). Because we cannot say that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission, we affirm.

Pittman and Gladwin, JJ., agree.

1 Appellant does not challenge the Commission's findings regarding the events of January 2000.