ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CA03-554

DECEMBER 17, 2003

LONNIE JACKSON

APPELLANT

AN APPEAL FROM THE WORKERS' COMPENSATION COMMISSION [F004210]

v.

MID-SOUTH ROLLER

UNION STANDARD INSURANCE

COMPANY

APPELLEES REVERSED AND REMANDED

Olly Neal, Judge

Appellant, Lonnie Jackson, appeals from a decision of the Arkansas Workers' Compensation Commission, reversing the decision of the Administrative Law Judge (ALJ) and finding that appellant failed to establish by a preponderance of the evidence that he sustained an injury caused by a specific incident identifiable by time and place of occurrence. On appeal, appellant asserts that the Commission erred in determining that there was insufficient evidence to establish that he sustained a specific incident injury. We reverse and remand for an award of benefits.

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. Magnet Cove Sch. Dist. v. Barnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003). These findings will be affirmed if supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.; Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001). 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. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003).

In order to prove a compensable injury a claimant must prove, among other things, a causal relationship between the injury and the employment. Horticare Landscape Mgmt. v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002). Objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the causal relationship between the injury and a work-related accident. Id. Objective medical evidence is not essential to establish the causal relationship between the injury and a work-related accident where objective medical evidence establishes the existence and extent of the injury, and a preponderance of other nonmedical evidence establishes a causal relation to a work-related incident. Id. Although objective medical findings are not directly necessary for the Commission to award temporary-total disability benefits, such findings are required for the underlying injury to be compensable. Cross v. Magnolia Hosp. Reciprocal Group, ___ Ark. App. ___, 109 S.W.3d 145 (2003). Medical evidence supported by objective findings is not essential in every case, but if medical opinions are offered, they must do more than state that the causal relationship between work and the injury is merely a possibility. Wentz v. Service Master, 75 Ark. App. 296, 57 S.W.3d 753 (2001). If a doctor renders an opinion that goes beyond possibilities and establishes that a work-related accident was the reasonable cause of the injury, this will establish a reasonable degree of medical certainty. See id.

Appellant had been employed with Mid-South Roller since October of 1993. His job was that of a "roll builder" and he was required to lift, with another employee, a 130-plus pound roll of rubber from a box and place it on a cart. On Friday, April 7, 2000, appellant and co-worker Doug Hatchett were working when appellant, while operating the foot pedal, noted a sharp pain in his right hip which he described as a "charley horse." Appellant testified that on that day

[A]ll at once, just like a little charley horse or something went in my hip and I was kicking that pedal around trying to get rid of it[.] . . . It wasn't no big deal or nothing, just like an ordinary, you know, different type of work strain or something like that. It wasn't necessarily a charley horse. Just kind of a pain hits you in the hip and like 15 seconds, it was gone. That was it.

Appellant's co-worker Hatchett testified that

[W]e went to pick up a roll out of the box and run the bar through it. We picked the roll up, put the bar through it and loaded it in the machine. Lonnie was running - the machine runs with a foot control, and Lonnie was kicking the foot control around with his foot. I asked him what his trouble was. I said, "You're moving that foot pedal an awful lot." And he said his foot and his leg didn't feel right. And that's all that was said about it.

After work, appellant noticed on his ride home that his "right leg was trying to go to sleep." He just moved around in his seat, determining that it was the way he "was sitting or something." From there, appellant testified that the pain progressed over the weekend and was unbearable. Appellant realized that he was hurt, and on Monday morning, called Mid-South Roller to inform it that he was injured.

Fred Dugan, Vice-President of Production at Mid-South Roller, testified that appellant contacted him on the morning of April 10, 2000, to report an injury. Dugan testified that appellant told him that he had hurt his back that previous Friday and that by the time he got home he was in so much pain that he could hardly exit his vehicle. Dugan testified:

I did not question the validity of [appellant's] claim that morning at all. From the date we hired him until [April 7, 2000], he had never missed. I don't have the days that he missed, but very few days. He would always take a vacation day when he did. So far as I know, all the years he worked for us, he never missed a day without taking vacation. He lived a long way from work and in the mountains and I have seen him there on days when the roads were too bad for people living in town to get there, but Lonnie would be there. I would definitely say he was a reliable employee and I have no hesitancy at all in believing his testimony about what happened or didn't happen. I find him to be a truthful man.

He further testified that he asked appellant if he knew what happened, to which appellant replied, "Well, no, not really." Dugan informed appellant that he needed to fill out an accident report and referred him to Cheryl Bauer, office manager at Mid-South Roller.

Bauer testified that she spoke with appellant, filled out workers' compensation forms, and arranged a doctor's appointment for appellant. She noted that "I did not question the validity of his claim in any fashion. He has worked there since 1993. He doesn't miss. I mean, he is probably the kind of employee that every employer would want these days."

Appellant saw several doctors. Dr. Joseph Queeney's deposition testimony provided that appellant was referred to him by Dr. Lee Tackett. He stated that he treated appellant for low back and right leg pain, which he understood took place on Friday April 7, 2000, while appellant was lifting a roller. Dr. Queeney testified that he did not have Dr. Tackett's medical records, but when asked by appellee's counsel to review Tackett's record, Dr. Queeney indicated that Tackett's records seemed to indicate that appellant stated that he "[h]urt [his] back Friday, feels like a pinched nerve, goes down leg R. Doesn't recall specific injury. Leg falling asleep Friday after work. Worse this weekend. Pain anterior lateral R. leg."

Queeney opined in his clinical evaluation that appellant had a diminished sensation to pin prick in the lower ankle, spasm in the right paravertebral musculature, and right leg pain. He found these findings to be consistent with a herniated disk at L4 or L5. Dr. Queeney testified:

[I]t is very easy to herniate a disk. You can have people herniate a disk by bending over and picking up a paperclip. You can have people that turn wrong in bed, sneeze, cough, [or ride a] roller coaster. Sometimes people can herniate a disk and never have any symptoms. As far as whether or not the herniated disk starts causing symptoms, I generally determine that by whenever they have the onset of leg pain. The onset of leg pain won't tell you in any way when they actually herniated the disk. It will tell when the symptoms started. Again, 20 percent of the people walking around have a herniated disk and don't know it. I cannot say either way, that if they develop leg pain on a day that it means that they initially herniated the disk on that day. It is very possible that they herniated it right then and there.

The Commission determined that appellant failed to prove a compensable injury, stating that the medical records do not corroborate the claimant's version of the events. Specifically, the Commission looked to Dr. Tackett's notes on April 10, 2000, which provided that appellant "[h]urt back Friday - feels like pinched nerve goes down leg R. Doesn't recall specific injury. Leg falling asleep Friday after work. Worse this weekend." The AR-3 form completed by Dr. Tackett's office on April 21, 2000, additionally provides as a description of the accident that "[d]oesn't know exact[ly] - just hurt back." Further, the Commission recites Dr. Queeney's medical report which states that:

Apparently [the claimant] and another employee were lifting a role on a spindle which weighed in excess of 130 pounds. Apparently he was lifting, twisting and was jarred. He did not have immediate pain; however, the following day he noticed that he had some paresthesias in the right interior lateral thigh. This waxed and waned over the subsequent months.

The Commission determined that this history not only gives a different time frame for the onset of appellant's symptoms, but is contradicted by appellant's own testimony which denied abnormalities associated with his lifting that day, such as twisting or jarring. The Commission also referred to notes of Dr. Anthony Russell who made no mention of a work-related injury and simply reflected a "long standing history of low back pain with radiation into his right leg." The Commission failed to find enough credible evidence and further found a lack of corroboration in the Form N, the medical records, and the testimony. Further, the Commission, in its ruling, provided:

The Full Commission finds the evidence does not support that the claimant injured his back while lifting a roll of rubber on April 7, 2000. There is simply no basis on which to connect a lifting incident which itself brought no immediate symptoms to the fleeting "little bitty" "charleyhorse" in the claimant's hip and the "sleepiness" in his leg on the way home. The history provided by the claimant during his testimony regarding his alleged injury is brought into question by the lack of corroboration in the medical records, the worker's compensation forms, and the testimony of the other witnesses. We conclude that the record is insufficient to establish by a preponderance of the evidence that the claimant incurred an injury as a result of a specific incident identifiable by time and place of occurrence. The relationship between the minor occurrences on April 7, 2000, and the claimant's present disability or need for treatment is far too tenuous to justify a finding of compensability.

Because there is not enough credible evidence to establish that the claimant sustained a specific incident injury on April 7, 2000, we find that the claimant failed to meet his burden of proof. We therefore reverse the opinion of the Administrative Law Judge, and deny and dismiss this claimant's claim.

In Price v. Little Rock Packing Co., 42 Ark. App. 238, 856 S.W.2d 317 (1993), the appellant tripped and fell at work, but reported no injury from the fall. Thereafter, appellant testified that while lifting loads of paper, he felt an "awful pain" in his side, in the groin area. He informed his co-worker and then reported the incident to his supervisor and personnel director. At the time he reported the injury, appellant attributed the pain to his fall at work. After undergoing surgery for hernia repair, the appellant sought temporary total disability benefits and medical and related expenses.

The Commission denied benefits, finding that the appellant had failed to prove by a preponderance of the evidence that he suffered a compensable hernia while working for appellee. On review, we relied on the case of Siders v. Southern Mattress Co., 240 Ark. 267, 398 S.W.2d 901 (1966), to reverse the Commission's decision. In Siders, supra, the Commission's opinion denying benefits stated:

Claimant did mention to his employer that his stomach was hurting, but according to the employer, claimant did not give any history of hurting himself on the job. Claimant went to Dr. Wenger that same day and Dr. Wenger's testimony is that `I have no record of any history of any specific injury . . . .' Claimant's failure to tell his employer of an on-the-job accident plus his failure to tell Dr. Wenger of any specific incident raises a serious question as to whether claimant in fact suffered an injury as alleged.

Siders, 240 Ark. at 269, 398 S.W.2d at 902. In reversing the denial of benefits in Siders, the supreme court said:

The commission imposed a heavier burden on appellant than the law calls for. Just as the Act does not require an immediate diagnosis, it also does not require that the claimant insist that the doctor's history contain the gory details of the occurrence . . . . Appellant has established a prima facie case. From all the circumstances, there is no question but that the employer had timely and proper notice of the occurrence that caused the hernia. There is not substantial evidence to the contrary. Appellant is not required to give notice that he has a hernia - he is not a doctor - the statute merely requires that appellant give notice of the occurrence which resulted in a hernia.

Price, 42 Ark. App. at 241, 856 S.W.2d at 318 (quoting Siders, 240 Ark. at 269-271, 398 S.W.2d at 902-903).

Likewise in the instant case, appellant notified his employer of his injury the Monday following his injury. Although Dr. Tackett's medical records indicate that appellant "[h]urt back Friday - feels like pinched nerve goes down leg R. Doesn't recall specific injury[,]" and Dr. Queeney's medical documents indicate that appellant on "April 7, 2000 was lifting heavy labor but quit, work noticed R leg feeling numb[,]" there is no conflict in the testimony as the Commission suggests. A conflict indicates that the evidence is at odds or that it is "irreconcilable." See Black's Law Dictionary 577 (7th ed. 1999). Although it was not complete in each instance, appellant's testimony is not irreconcilable with the medical evidence. The Commission correctly states that Dr. Tackett's medical records indicate appellant "[h]urt [his] back Friday, feels like a pinched nerve, goes down leg R. Doesn't recall specific injury. Leg falling asleep Friday after work. Worse this weekend. Pain anterior lateral R. leg[,]" but his notes also indicate that appellant "[h]urt at work in lower back and right leg[,]" which is consistent with Dr. Queeney's medical records. As stated in Siders, supra, the workers' compensation act does not require that the claimant insist that the doctor's history contain the gory details of the occurrence.

Accordingly, we do not think that fair-minded persons with the same facts before them could have concluded that appellant failed to prove by a preponderance of the evidence that he suffered a compensable injury on April 7, 2000. We, therefore, reverse and remand for an award of benefits.

Reversed and remanded.

Griffen and Crabtree, JJ., agree.