Arkansas Dept. of Health v. Williams

• Decision Date: 20 October 1993
• Docket Number: No. CA,CA
• Citation: 43 Ark.App. 169,863 S.W.2d 583
• Parties: ARKANSAS DEPARTMENT OF HEALTH, and Public Employees Claims Division, Appellants, v. Juanita WILLIAMS, Appellee. 92-1243.
• Court: Arkansas Court of Appeals

Page 583

863 S.W.2d 583

43 Ark.App. 169

ARKANSAS DEPARTMENT OF HEALTH, and Public Employees Claims Division, Appellants, v. Juanita WILLIAMS, Appellee.

No. CA 92-1243.

Court of Appeals of Arkansas En Banc.

Oct. 20, 1993.

Frank Gobell, Little Rock, for appellant.

Shackleford, Shackleford & Phillips, P.A., El Dorado, for appellee.

MAYFIELD, Judge.

In this workers compensation appeal, appellants argue there is no substantial evidence to support the finding that appellee suffered a compensable injury.

Appellee, Juanita Williams, is employed by the Arkansas Department of Health as a personal care assistant whose duties involve going from house to house performing personal care and light-duty housework. At the hearing on her claim for compensation, Ms. Williams testified that she hurt her back on December 21, 1990, as she was helping Mr. Frank Ethridge to his chair after his shower. According to the appellee, Mrs. Ethridge was at home that day, but did not assist the appellee with Mr. Ethridge. She said he tried to turn around and sit down in the chair before he was close enough, that she tried to catch him, and that he put all his weight on her. She said she heard her lower middle back pop, and felt a dull, sharp, ripping pain like she never felt before. Ms. Williams said she completed her duties without telling Mrs. Ethridge she had hurt herself because she thought the pain would go away. Ms. Williams said she attended another patient that afternoon, where she did about the same duties as at the Ethridge's but was physically unable to sweep the floor.

Ms. Williams also testified that when she arrived home that day her back was sore. The next morning, Saturday, December 22, she "almost" couldn't move. On December 26, her next scheduled work day, she telephoned her supervisor and said she was not able to come to work because she hurt her back lifting Mr. Ethridge.

On December 27 Ms. Williams was seen by Dr. Nur Badshah who initially treated her with drug therapy and subsequently referred her to Dr. Clinton McAlister, an orthopedic surgeon. Ms. Williams testified her condition has gotten worse; it hurts her to stand and to sit for a long period of time; she cannot drive; she is unable to work; and she cannot do any heavy-duty housework. She said that since January 1991 there are never any days when she feels good enough to bend forward with no problems, and since that time she has not had a single pain-free day. She also testified she was aware her testimony was contradicted by Mrs. Ethridge but thought Mrs. Ethridge may have forgotten.

Mrs. Ethridge, who is 85 years of age, testified by deposition that her husband did not fall and that she was there and helped him. She said Ms. Williams did no more than she did; that Ms. Williams did not have to catch him that day when he sat down on the bed; and that the only time she caught him was "when he was doing the chair." She said Ms. Williams did not say a word about being hurt. Mrs. Ethridge also testified that the following Monday Ms. Williams called and said she did not feel good, and on Wednesday her employer called and said Ms. Williams had to go to the doctor because she hurt her back lifting Mr. Ethridge. Mrs. Ethridge said she was not saying Ms. Williams did not injure her back, but if she did, she did not tell her, did not act like she hurt her back, and did not cry out.

The medical records introduced into evidence start with a note written by Dr. Badshah after his first examination of the appellee. The note states that the appellee is "unable to do lifting and straining for 3 weeks."

The next record is a "History Sheet" dictated by Dr. McAlister and dated January 8, 1991. Dr. McAlister states that the appellee had been seen by Dr. Badshah but "he is out-of-town." Dr. McAlister goes on to state that the appellee complained of soreness in her arm area from her elbows to her wrist and that her back pain was in the mid-back area with no radiation. The doctor states that his "impression" is "lumbosacral sprain" and "muscle pull in both forearms," and he prescribed Parafon Forte and Darvocet.

On February 8, 1991, Dr. McAlister wrote he had examined the appellee again and could find no objective findings. He said the appellee had a great deal more complaints than he could answer from her examination, and he requested permission to do "MRIs and EMGs as these will help to shed more light on her complaints." In a letter written that same day, Dr. McAlister stated the appellee has had difficulty since December 21, 1990, when she injured her back and arms and that "the pain that has evolved has not allowed her to devote the proper amount of time to her schooling, and I have suggested that she not attend school and take care of her health first and to return next semester."

On June 18, 1991, Dr. Badshah wrote that the appellee "continues to have low back pain for the last 6 months," and "she needs MRI scan of lumbosacral spine." The doctor also wrote a note stating that appellee "is totally disabled from 12-21-90 to present because of back injury."

On the evidence outlined above, the administrative law judge made the following findings of fact:

1. The employee-employer relationship existed on December 21, 1990, on which date the claimant sustained an accidental injury arising out of and in the course of her employment.

2. At the time of her injury, the claimant was earning an average weekly wage of $187.28 which computes to a compensation rate of $124.85.

3. The claimant has remained temporarily, totally disabled since her accidental injury.

4. The claim has been controverted in its entirety.

And on appeal to the full Commission, the Commission issued an opinion in which it stated:

After our de novo review of the entire record herein, we find that claimant has sustained her burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.

On appeal to this court the appellants argue there is no substantial evidence to support "the findings and opinion of the Arkansas Workers' Compensation Commission that appellee suffered a compensable injury."

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 affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). 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. Bearden Lumber Company v. Bond, 7 Ark.App. 65, 644 S.W.2d 321 (1983).

In their brief, appellants review the evidence and question appellee's credibility. They contend appellee's testimony is diametrically opposed to that of Mrs. Ethridge and that this shows appellee's lack of veracity. They also contend that the medical evidence demonstrates appellee's claim is without merit and that there are no objective findings to support her complaints.

Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Robinson v. Ed Williams Construction Company, 38 Ark.App. 90, 828 S.W.2d 860 (1992). Although the appellants argue that the basis by which the Commission found appellee to be credible is specious at best, the Commission found appellee to be credible and that is a matter for the Commission to determine. College Club Dairy v. Carr, 25 Ark.App. 215, 756 S.W.2d 128 (1988). We agree that there are contradictions in the evidence but it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Jackson Cookie Company v. Fausett, 17 Ark.App. 76, 703 S.W.2d 468 (1986).

It is true, as appellants argue, that a claimant's testimony is not considered to be uncontroverted, but this does not mean that the fact finder may not find such testimony to be credible and believable or that it must reject the testimony if it finds the testimony worthy of belief. Ringier America v. Combs, 41 Ark.App. 47, 849 S.W.2d 1 (1993).

In a claim for benefits, a claimant has the burden of proof by a preponderance of the evidence. Voss v. Ward's Pulpwood Yard, 248 Ark. 465, 452 S.W.2d 629 (1970). In its opinion, the Commission discussed the evidence and stated "based on claimant's credible testimony, we find that claimant has proven by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment."

Although the appellants do not raise the point, the dissenting opinion by the judges of this court takes the position that the Commission's opinion does not make "findings of fact on the essential issues of the existence, extent, and cause of appellee's disability, if any," and would remand for such findings to be made. In Wright v. American Transportation, 18 Ark.App. 18, 709 S.W.2d 107 (1986), we held in reliance upon Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979), that the Commission must make sufficient factual findings that would enable the appellate court to conduct a meaningful review of the Commission's decision. We quoted from Clark the statement: "We do not deem a full recitation of the evidence to be required, as long as the Commission's findings include a statement of those facts the Commission finds to be established by the evidence in sufficient detail so that the truth or falsity of each material allegation may be demonstrated from the findings...." See Clark, 265 Ark. at 507, 579 S.W.2d at 369. In the instant case the appellants' only argument is that the evidence was not sufficient to show that the claimant suffered a compensable injury, and the dissenting opinion concedes that the Commission's finding in that regard is sufficient. But the appellants,...