Morrow v. Mulberry Lumber Co., CA

• Decision Date: 30 June 1982
• Docket Number: No. CA,CA
• Citation: Morrow v. Mulberry Lumber Co., 635 S.W.2d 283, 5 Ark.App. 260 (Ark. App. 1982)
• Parties: J. G. MORROW, Appellant, v. MULBERRY LUMBER COMPANY and St. Paul Insurance Company, Appellees. 82-78.
• Court: Arkansas Court of Appeals

Page 283

635 S.W.2d 283

5 Ark.App. 260

J. G. MORROW, Appellant, v. MULBERRY LUMBER COMPANY and St. Paul Insurance Company, Appellees.

No. CA 82-78.

Court of Appeals of Arkansas.

June 30, 1982.

Sam T. Heuer, Batesville, for appellant.

Laser, Sharp & Huckabay, P. A., Little Rock, for appellees.

CRACRAFT, Judge.

The appellant, J. G. Morrow, brings this appeal from an order of the Workers' Compensation Commission denying him benefits. He maintains that the finding of the Commission that his disability was not the result of a compensable injury is not supported by substantial evidence. He contended before the Commission, as he does here, that his disability was work related and resulted from an accidental injury which occurred on or about July 7, 1980. The appellee, Mulberry Lumber Company, contended that any disability from which he now suffers was not work related but resulted from a diseased condition of long standing. The Administrative Law Judge reached the following conclusion which was affirmed and adopted in its entirety by the Full Commission:

After having reviewed the evidence in its entirety in this case, even when viewing such in the light most favorable to the contentions of the claimant, as we are required to do, I believe the greater weight of credible evidence and the several inconsistencies as contained in this record simply do not form a basis upon which award of workers' compensation benefits can be made. This having been stated and full well realizing that the search for the truth is oft-times a nebulous task I feel left with no reasonable alternative under the state of this record than to respectfully deny and dismiss the claim for benefits.

In claims before the Workers' Compensation Commission the burden is upon the claimant to prove entitlement to benefits by a preponderance of the evidence. In determining whether that burden has been met the Commission is not bound to accept the testimony of a claimant or any other witness in its entirety. The credibility and weight to be afforded the evidence is exclusively within its province. Hammer v. Intermed Northwest, 270 Ark. 262, 603 S.W.2d 913 (Ark.App.1980). On appeal we review the record only to determine if their findings are supported by such substantial, relevant evidence as reasonable minds might accept as adequate to support their conclusion. The issue is not whether this court would have reached the same result as the Commission or whether the evidence would have supported a finding contrary to the one made. The question here is solely whether the finding made by the Commission is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). We find that it was.

The appellant contended that he was injured on or about July 7, 1980 while working in appellee's lumber yard. He testified that on that date the band on a stack of lumber burst and he was required to restack it. As he was doing this he was twisting around and felt a tear "in his back." He stated that he rested for a while, finished up that day, and returned to work at least the next two days before leaving to see a doctor.

Although he did not file a claim for benefits until January 30, 1981, he testified that on leaving the job on July 10, 1980 he told his supervisor that he had hurt himself while working and was leaving to see a doctor. On July 10th he was seen by his regular physician, Dr. Calaway, who referred him to an orthopedic surgeon. He was admitted to the Veterans Hospital at Fayetteville on the following day for disability to his back. He was ultimately seen by Dr. Lockhart on March 30, 1981, shortly before the hearing for the purpose of evaluation. Dr. Lockhart, on the history given him by appellant at that time, rated his permanent partial disability to his body as a whole at 25%, "of which probably 10% preexisted the traumatic aggravation of his spine in July of 1980."

There was evidence from appellant, his wife and daughter that he had been previously admitted to the Veterans Hospital in 1963 for back pains but had manifested no discomfort or disability since that time. The evidence was confusing as to whether he told his wife or daughter that he had twisted his back on the job at the time he was first seen by Dr. Calaway on July 10th or at...