*1 rected in lieu sentence reducing reversing remanding State, Richards, for a Ellis v. new trial. supra; Ann. Code (1970); 16-67-325(a) (1987). are reduced sentences each term of by modifying to the term fixed The conviction is imprisonment jury. affirmed as modified.
Affirmed as modified. Neal,
Gladwin JJ., agree. LAUNDRY,
SEARCY INDUSTRIAL INC. v. Sharon FERREN CA 02-511
Court of of Arkansas Appeals
Divisions and II delivered Opinion *2 P.A., Munson, Rowlett & Moore. Carol Lockard
Huckabay, by: for Worley, appellant. P.A., Davis, Mitchell,
Davis & Zan for by: appellee. Industrial Karen R. Searcy Judge. Appellant, Baker, a decision of the Workers’ Com- Laundry, appeals Ferren, Sharon pensation appellee, of the evidence that she sustained proved in addition to her admittedly compen- compensable injury, from an sable low-back incident that occurred on arising injury, 13, 2000. that there was no Appellant argues appeal substantial evidence to Commission’s decision her neck herniated disk in was a conse- appellee’s two-and-one-half months ear- quence lumbar-spine lier. We and affirm. disagree
The fact that sustained a com- stipulated parties to her back on lower pensable injury date
testified that she was a box she when lifting particular onset “all She over.” left work and experienced sharp medical assistance next sought Citty. day, appel- Jim lee returned work to Karen speak personnel manager, filed, Thomas. A Form 1A was which back injury. *3 reported that testified she had never in her back experienced pain and neck and before 13 that she told Citty “all over.” Dr. beginning experiencing pain Citty referred to Dr. at Williams the Arkansas appellee Neurosurgery Clinic. An initial MRI of the lumbar revealed a herniated disc spine at L4-5 with of thecal sac and moderate and flattening impingement a disc L5-S1 no In a bulging creating significant compression. letter to Dr. Williams on informed Dr. Wil- liams of the date in which of chest-wall appellee complained having nurse had that his confirmed had explained appellee of neck and on several previously complained occasions. Dr. a MRI on her cervical Citty suggested follow-up due to these spine MRI revealed that there was complaints. indeed disc herniation at C6-7.
The Administrative Law had found Judge (ALJ) appellee failed to a of by the evidence that she sus- prove preponderance tained a to her cervical or neck. The compensable injury spine found that failed to a cervical specifically appellee prove ALJ or neck out and in of of the injury arising course employment, which was caused incident and was identified time by specific by of occurrence. The reversed place the ALJ’s decision. This followed. appeal
When a decision reviewing of Workers’ Com Commission, we view the and all pensation reasonable inferences deducible in the therefrom most favorable to the light Commission, of the and we affirm that it decision if Ford evidence. v. Randal substantial Campbell Tyler by
supported
35, 13
Substantial
70 Ark.
(2000).
Mercury
mind
relevant evidence as a reasonable
evidence is such
might
Alumnitec,
a conclusion.
v.
Mays
adequate
accept
Inc.,
We will not
(2001).
76 Ark. App.
decision unless we are convinced that
the Commission’s
reverse
them could not
fair-minded
with the same facts before
persons
the conclusions arrived at
the Commission.
have reached
by
v.
339 Ark.
On asserts that the Commission appeal, appellant erred in appellee proven preponderance the evidence that she sustained a neck claimant, As the had the burden of proving compensa ble evidence. Ark. Code Ann. A is one 11-9-102(4)(E)(i) 2002). (Repl. “compensable injury” § out of and in the course of Ark. Code “arising employment.” Ann. Arkansas Anno 11-9-102(4)(A)(i) 2002). Code (Repl. *4 tated section “A ll-9-102(4)(D) injury provides: compensable medical must be established by supported by ‘objective defined in as subdivision of this section.” (16) findings’ “Objec tive are “those which cannot come under the findings” the control of Ark. Code Ann. 11-9- voluntary patient.” 55, Haworth, Carman v. 74 Ark. 102(16); “In order to (2001). prove compensable injury [the claimant] must a causal between his among things, prove, relationship Westbrook, Stores, and the Wal-Mart Inc. v. employment injury.” 167, 171, 889, 77 Ark. 72 S.W.3d 892 McMil (2002) (citing Motors, 85, 90, 907, lan v. 953 909 U.S. S.W.2d Flowever, medical evidence is not to the (1997)). prove required Stores, an work-related. cause of was Inc. 443, VanWagner, I and saw that “when first went Dr. Citty testified 13, 2000, him I did not I told how I was hurting.
on January I said that I was severe low back tell him was having pain. really I was all low back but all over. I was having hurting hurting had never any She also testified experienced over.” “[she] neck in back or before January like pain [she] [her] [her] letter Dr. Williams on Dr. Citty In a to July 13.” of that he it was to with an MRI felt necessary proceed explained as a her of neck and cervical result of complaints her thoracic spine letter, in that Dr. wrote: Citty and thoracic pain. Specifically, her records on Mrs. Sharon Ferren to pertaining the reviewing discomfort, cervical and thoracic we have one recorded episode 25th of her check wall nurse pain. My in on the having there were fact that on several occasions complaints confirms the thoracic true the alleged of neck and and this her have been referrable to the low symptoms patient. Primarily back, however, I it is to with MRI studies important feel proceed the and cervical referable to this spine injury. of cervical MRI follow-up performed July spine showed herniation C6-7. disc Appellant argues decision, there was no evidence to the Commission’s support decision, In its relied facts. Commission foregoing despite on the facts in its decision: following matter, In the the Full reversed Admin- present that the claimant failed to istrative LawJudge’s prove of the evidence that she sustained or In this her cervical neck on contemporaneous reports might Dr. regard, Citty’s led the claim- have understandably neck, in her story hurting ant’s over time as well all, her lower after the incident. After several Citty’s back did not mention follow-up any ongoing reports Nevertheless, in the March January through period. to Dr. have any letter Williams should cleared July up time, at that part, Citty confusion on since respondent’s corroborated that the claimant had been making in his office. Furthermore, note that Dr. 2000 that we opined *5 and
it was with thoracic cervical important proceed Likewise, the MRI referrable to claimant’s injury. studies 24, the Williams an in a 2000 letter that rendered opinion August 13, incident 2000 caused claimant’s need
lifting January issue, for care at that he had an medical accurate medi- assuming cal the claimant’smedical and Certainly, records testi- history. both to be consistent with the mony described appear history addition, we Dr. Williams. with claimant’s agree attorney that the have failed medical present any expert evidence, or credible medical to rebut the opinion, expla- letter, nation and in Dr. opinion Citty’s or to rebut July in Dr. Williams’ opinion August letter. Further- more, note that we the claimant’s neck is alleged injury sup- objective medical a disc ported by herniation at the of the C6-7 level spine. Based on the Commission’s determination credibility that, the letter concerning testimony, appellee’s indicating recorded, not had made although appellee previously and the MRI had in regarding proving appellee fact sustained an to her cervical the Commission injury spine, found that had met her burden of appellee proving by prepon derance that she sustained a in addition to her an low-back in accident on injury Janu Because we cannot ary fair-minded say persons with same facts before them could not have reached the con Commission, clusions arrived we affirm.
Gladwin, Bird,
Vaught,
JJ., agree.
Roaf,
Neal and
dissent.
JJ.,
Olly Neal,
I write
because
Judge, dissenting.
separately
I am not convinced that fair-minded
persons
same facts before them could have reached the same conclusions as
the Commission.
sustained a
to-
her
compensable injury
13, 2000;
back on
addi-
subsequently, appellee sought
tional medical treatment for a neck
that she claims occurred
at the
accident,
same time as her back
her
injury. Following
treatment from Dr.
appellee sought
Citty.
Jim
25, 2000,
notes indicate
neck was nor-
appellee’s
16, 2000,
mal. His notes also indicate that on February
appellee’s
i.e., flexible, bendable,
neck was
or
The first doc-
supple,
pliable.
umented record
about neck
indicating
dated
in a
letter dated
stated that his
“nurse confirms the fact that on several occa-
*6
neck and
there were
sions
complaints
The letter does not
true
provide
patient.”
this is alleged
have occurred
when these
might
time frame for
complaints
any
to
occurred
or even
they
prior
does not state
suggest
30, 2000.
evidence and the Commission
a conflict in the
There is
it
conflict when
stated
following:
this
acknowledged
Citty’s contemporaneous
reports
In this
regard,
have led
understandably
might
neck,
over time in her
hurting
story
claimant’s
all,
After
Dr. Citty’s
after the incident.
well as her lower back
did not mention
any ongoing
reports
several follow-up
Nevertheless,
March
through
period.
in the January
have
to Dr. Williams should
letter of
since at that
confusion on the respondents’ part,
cleared up any
time,
the claimant had been making
corroborated that
in his office.
that the
has the
am mindful of the fact
duty
I
evidence,
it does
and its
medical evidence as
any
weighing
evidence has the force and effect of
resolution of the medical
Sands,
verdict,
Stores, Inc. v.
jury
are insu
and that the Commission’s
(2002),
a certain
review. Tuckerv. Roberts-
lated to
degree
appellate
Inc.,
v.
McNutt,
Ark.
I am authorized to state Judge joins Roaf