Tucker v. Roberts-McNutt, Inc.

• Decision Date: 02 November 2000
• Court: Arkansas Supreme Court

342 Ark. 511,

29 S.W.3d 706,

Kevin TUCKER v. ROBERTS-MCNUTT, INC.

00-221

SUPREME COURT OF ARKANSAS

November 2, 2000, Opinion Delivered

Christopher D. Anderson, for appellant.

Friday, Eldredge & Clark, by: Betty J. Demory, for appellee.

Annabelle Clinton Imber, Justice.

Annabelle Clinton Imber, Justice. Appellant Kevin Tucker appeals an adverse decision of the Arkansas Workers' Compensation Commission. This case is before us on petition for review from the Arkansas Court of Appeals; therefore, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court.Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

On June 17, 1997, Mr. Tucker filed a claim with the Arkansas Workers' Compensation Commission alleging that he sustained a compensable injury on May 23, 1997, while he was in the employ of appellee, Roberts-McNutt. Specifically, he alleged that he is entitled to medical benefits and permanent disability benefits based upon an impairment rating of 8% to the body as a whole, as well as temporary total disability benefits for the period beginning July 8, 1997, and ending July 31, 1997. Roberts-McNutt controverted Mr. Tucker's claim in its entirety, arguing that Mr. Tucker failed to make a timely report of a work-related injury, that he did not sustain an injury in the course and scope of his employment, and that, even if Mr. Tucker did sustain a compensable injury, Roberts-McNutt would be entitled to an offset for the amount of any unemployment benefits Mr. Tucker drew between July 8, 1997, and July 31, 1997.

A hearing took place on March 13, 1998, before an administrative law judge. In an opinion filed on May 20, 1998, the law judge held that Mr. Tucker sustained a compensable injury, that he was entitled to all of the benefits sought, and that Roberts-McNutt was entitled to an offset for unemployment benefits drawn by Mr. Tucker during the period July 8 through July 31, 1997. Roberts-McNutt appealed the law judge's decision to the full Workers' Compensation Commission. In an opinion filed on March 23, 1999, the Commission reversed the law judge's decision and held that Mr. Tucker was not entitled to compensation because he failed to prove by a preponderance of the evidence that he sustained a compensable injury on May 23, 1997. Mr. Tucker appealed the Commission's decision to the Arkansas Court of Appeals. In Tucker v. Roberts-McNutt, 69 Ark. App. 150, 12 S.W.3d 640 (2000), the court of appeals reversed the Commission's decision and remanded the case for the award of benefits, holding that the Commission's opinion "did not display a substantial basis for denying Mr. Tucker's claim."

Roberts-McNutt petitioned this court to review the decision of the court of appeals. In its petition, Roberts-McNutt argues that the court of appeals went beyond the substantial-evidence standard of review and engaged in the assessment of the credibility of witnesses. We conclude that the Commission expressly relied upon erroneous factual findings in reaching its decision. Accordingly, we must reverse its decision and remand to the Commission for its full examination of the relevant evidence presented in this cause.

The evidence presented to the Commission consisted of the testimony of Mr. Tucker and two of his supervisors, Mr. Wayne Lavender and Mr. Tom Bordeaux, Mr. Tucker's medical records, the deposition testimony of Dr. Scott Schlesinger, and a safety incentive form signed by Mr. Tucker. The parties stipulated that an employer/employee relationship existed and that, if the injury was deemed compensable, Mr. Tucker would be entitled to the maximum rate of compensation.

Roberts-McNutt is a construction company specializing in waterproofing and roofing. On May 23, 1997, Mr. Tucker was employed by Roberts-McNutt as a job foreman and was working on the restoration of the Argenta Depot. According to Mr. Tucker's testimony, he first injured his back in September 1996 when he was lifting 300 feet of water hose from the bed of his pickup. Roberts-McNutt provided treatment for him at the Little Rock Medical Clinic. Mr. Tucker again sought treatment for his back on March 4, 1997, from Dr. David Bryant, a chiropractor. He presented to Dr. Bryant with complaints of lower back pain originating at L4-L5 and L5-S1 and radiating down his leg. Mr. Tucker remained under the care of Dr. Bryant through May 19, 1997. Mr. Tucker did not claim compensation for the treatment with Dr. Bryant, although he attributed his condition to the September 1996 injury.

Mr. Tucker testified concerning his present claim for compensation that, at approximately 11:00 a.m. on May 23, 1997, he was standing on the top of three sections of scaffolding, pulling another section of scaffolding up with a rope, when the section he was pulling became caught on another section. After he pulled the rope again, Mr. Tucker testified that he "pulled [his] back out." He immediately told the man below him to get out of the way because he was going to drop the scaffolding and come down. Mr. Tucker testified that he continued working on the ground until lunch time, a period of approximately twenty minutes. Although Mr. Tucker testified that two other employees, Mr. Mike Mitchell and Mr. Fred Ready, witnessed this incident and could verify his account of the injury, neither witness testified at the hearing.

According to Mr. Tucker, he informed his supervisor Wayne Lavender at lunch time on May 23, 1997, that "I tore up my back pulling the scaffolding" and that "I am going to the clinic." Mr. Tucker then left the job site and went to the Little Rock Medical Clinic, which he believed to be the clinic used by Roberts-McNutt for work-related injuries, where he was treated by Dr. Thomas Jackson.

Dr. Jackson's office notes indicate that Mr. Tucker complained of bilateral recurrent back pain. According to the Arkansas Workers' Compensation Commission's Physician's Report completed by Dr. Jackson on May 23, 1997, Mr. Tucker informed Dr. Jackson that he was injured while "pulling up scaffold from three sections high." The Physician's Report reveals a diagnosis of bilateral recurrent lumbar/sacral strain and shows that Dr. Jackson treated Mr. Tucker with an injection and medication. Dr. Jackson released Mr. Tucker to return to work with restrictions. Mr. Tucker testified that he returned to the job site that day, but found it deserted. Because the following Monday was the Memorial Day holiday, he did not return to work until Tuesday, May 27. He worked full time, but under the restrictions imposed by Dr. Jackson, until June 11, 1997, when he was fired by Roberts-McNutt for lack of production.

Mr. Tucker continued to seek treatment for his back from Dr. Jackson and from Dr. Bryant. On June 23, 1997, Mr. Tucker also sought the treatment of a neurosurgeon, Dr. Scott Schlesinger, upon the recommendation of Dr. Bryant. In a letter dated June 23, 1997, Dr. Schlesinger noted that Mr. Tucker first injured his back in September 1996, but that "on May 23, 1997, he injured his back again and is now suffering back and left leg pain. He gets occasional pain in the right leg." A July 7, 1997 MRI ordered by Dr. Schlesinger revealed disc degeneration at L5-S1 and a herniation at L4-L5 for which Dr. Schlesinger ordered immediate surgery. In a letter dated that same day, Dr. Schlesinger reported these findings to Dr. Bryant stating that "the disc herniation at L4-5 is clearly an acute process and almost certainly caused from the accident on May 23, 1997." Dr. Schlesinger performed surgery to repair the herniated disc on July 8, 1997. In his operative report, he again notes that Mr. Tucker's back and lower extremity pain "began after an accident at work on May 23, 1997." Dr. Schlesinger released Mr. Tucker to return to work with restrictions on July 31, 1997.

In deposition testimony, Dr. Schlesinger testified he was informed by Mr. Tucker that he had injured his back on May 23, 1997. Dr. Schlesinger stated that the nature of the disc herniation, which was "probably one of the largest I have seen" led him to believe that it did happen in the precipitous manner described by Mr. Tucker. Although Dr. Schlesinger acknowledged that Mr. Tucker had been suffering from back problems since September of 1996, he testified that the previous injury likely precipitated the more acute injury which occurred in May, stating "it is very rare to see somebody that has a herniated disc that has never had any [back problems]."

Mr. Tucker's supervisor, Wayne Lavender, testified that on May 23, 1997, he did indeed have a conversation with Mr. Tucker around lunch time. At that time, Mr. Tucker told Mr. Lavender that he was going to take off and go to the doctor. But, according to Mr. Lavender, Mr. Tucker did not tell him that he had injured his back while working or that he had injured it by pulling up scaffolding. Mr. Lavender testified he first learned that Mr. Tucker was claiming a work-related injury two weeks later when he was informed by the office secretary that Mr. Tucker had filed a claim. If he had known Mr. Tucker was injured on the job, Mr. Lavender testified that he would have filled out paperwork and escorted Mr. Tucker to the doctor's office personally.

Tom Bordeaux, a general superintendent and safety director at Roberts-McNutt, also testified that Mr. Tucker failed to report a work-related injury. Mr. Bordeaux testified that, as safety director for Roberts-McNutt, he conducted safety meetings for the employees. He had noticed...