Allen Canning Co. v. Woodruff

• Decision Date: 07 September 2005
• Docket Number: No. CA 04-1364.,CA 04-1364.
• Citation: 212 S.W.3d 25
• Parties: ALLEN CANNING COMPANY, Appellant v. J.D. WOODRUFF, Appellee.
• Court: Arkansas Court of Appeals

212 S.W.3d 25

ALLEN CANNING COMPANY, Appellant v. J.D. WOODRUFF, Appellee.

No. CA 04-1364.

Court of Appeals of Arkansas, Division II.

September 7, 2005.

Davis, Wright, Clark, Butt & Carithers, PLC, by: Constance G. Clark, Fayetteville, for appellant.

Walker, Shock, Cox & Harp, PLLC, by: J. Randolph Shock, Fort Smith, for appellee.

DAVID M. GLOVER, Judge.

Appellant, Allen Canning Company, appeals the Workers' Compensation Commission's adoption of the administrative law judge's decision finding that appellee, J.D. Woodruff, suffered a compensable injury on July 7, 2003; that appellee was entitled to temporary-total disability for the period July 8-18, 2003; and that appellee's claim was not barred by the Shippers defense. Allen Canning asserts that there is no substantial evidence to support the Commission's finding that appellee sustained a compensable back injury while in the course and scope of his employment and that the Commission erred in finding that the Shippers defense was inapplicable. Woodruff cross-appeals, arguing that his period of temporary-total disability should not have ceased on July 18, 2003, but instead should continue until a date to be determined because he remained in his healing period. We affirm on direct appeal and on cross-appeal.

The standard of review in workers' compensation cases is well-settled. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark.App. 162, 11 S.W.3d 1 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Geo Specialty, supra. It is the Commission's function to determine witness credibility and the weight to be afforded to any testimony; the Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark.App. 69, 110 S.W.3d 306 (2003). The Commission's resolution of the medical evidence has the force and effect of a jury verdict. Jim Walter Homes v. Beard, 82 Ark.App. 607, 120 S.W.3d 160 (2003).

Prior to his employment at Allen Canning, appellee, a forty-eight-year-old man, had an extensive history of work-related back injuries. In 1992, he injured his lumbar spine while employed by Don Youngblood as a truck driver; as a result of this compensable injury, he did not work for over one year and was assigned a permanent physical-impairment rating of nine percent to the body as a whole. Appellee also suffered two compensable back-related injuries while he was employed by Wal-Mart —first on September 28, 2001, and then on July 20, 2002. Additionally, appellee has degenerative-disc disease and small-disc herniations in multiple levels of his lumbar spine.

Following treatment for his last Wal-Mart injury, appellee's physician, Dr. Kannout, released appellee on August 19, 2002, for return to work without any restrictions. Appellee subsequently went to work for appellant. On July 7, 2003, appellee was loading one of appellant's trucks with boxes of shoestring potatoes weighing about twenty pounds each when his back began to hurt. He said that he felt fine before he began working, that he must have bent the wrong way while he was picking up a box, that he felt a pop in his lower spine, that he felt severe pain in his back, and that he also felt pain shooting halfway down his right thigh. Appellee reported the incident to the forklift driver, who went to inform the warehouse manager. Appellee continued to work until Don James, the warehouse manager, arrived about ten minutes later and told him to go to the shoestring potato "lidder" line, a job that was not as difficult. Appellee testified that he believed that he needed medical attention, but that James did not offer to fill out an accident report at that time. Appellee worked the "lidder" line until lunchtime, when he told James that he had to go home; he did not fill out an accident report prior to leaving work.

Although he was scheduled to work the following day, appellee called Don James and told him that he was not coming to work, and he went to see Dr. Kannout. Appellee said that James said nothing about an accident report at that time, and such a report was not completed until three or four days later. Appellee said that Allen Canning never offered him medical attention nor paid for his medical visits with Dr. Kannout or for physical therapy, which appellee had to discontinue after July 18 due to a lack of money.

On July 25, 2003, appellee saw Dr. Westbrook, who had treated him during his first workers' compensation claim, complaining of back pain. He said that Dr. Westbrook gave him an ESI shot and that he had not returned to see Dr. Westbrook since that time because he had not needed him.

Appellee testified that he was always in moderate pain; that some days were worse than others; that his back injury affected the way he walked; and that if he sat, stood, or bent for too long a period, his back hurt. He said that on a good day he could lift twenty pounds comfortably, but on a bad day he did not want to get out of bed. He said that he still needed additional medical attention for his back, but he had not been able to afford it.

Appellee stated that he felt that he could return to Allen Canning in some capacity, but that Allen Canning had not provided him with any work since his injury. He also stated that he had looked for work elsewhere but had not yet found a job.

During cross-examination, appellee asserted that before coming to Allen Canning, he had only experienced slight back pain, "hardly no pain at all," and he denied experiencing any severe back pain prior to going to work for appellant. He said that he did not think that lifting and bending would cause his slight back pain to become worse because his doctor had told him that he was fine and had released him for full work with no restrictions. He admitted that he had said in his deposition that he knew before he went to work for appellant that lifting could make his back worse, but he said that he was not doing any lifting when he began working for appellant. He had only loaded trucks twice before his injury, and he did not consider loading trucks to be one of his regular job duties. Appellee said that he did not notify anyone at Allen Canning that lifting could make his condition worse because he felt fine, and that when he completed his employment application, he was not asked if lifting would make any physical condition he had worse. In response to the employment application question that asked him to describe his general health, he said that he had checked "good," but he denied that he had answered the question "Do you have any physical or mental conditions which may limit your ability to perform certain kinds of work?" at all. At the time he completed the employment application, appellee's doctor had released him to return to full duty work without any restrictions.

Don James, appellant's warehouse manager, testified that he was informed on the morning of July 7 that appellee had a problem with his back while loading a truck. When he went to check on appellee, he said that appellee told him that it was not a big deal, that it happened "two or three times a year," and that he just had to get some pills from a doctor to relax it. James said that he could not remember when he completed the accident report, but that he thought it might have been the next day. He said that appellee had never told him he had a bad back prior to July 7, 2003, or that lifting would hurt his back, and if he had known of those limitations, he would not have had appellee loading the truck.

In Heritage Baptist Temple v. Robison, 82 Ark.App. 460, 464, 120 S.W.3d 150, 152-53 (2003), this court set forth the definition of a compensable injury:

Arkansas Code Annotated section 11-9-102(4)(A)(i) (Supp.1999) defines "compensable injury" as

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. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence.

A compensable injury must be established by medical evidence supported by "objective findings." Ark.Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark.Code Ann. § 11-9-102(16)(A)(i).

In the present case, the Commission found that appellee had sustained a compensable injury, even in light of the acknowledgment that appellee had an extensive history of work-related low-back problems dating back to 1992 and that he suffered from degenerative-disc disease and small-disc herniations. Appellant does not argue that appellee did not suffer an injury or that it was not established by objective findings. Rather, appel...