*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. 6 S.W.3d 98 (1999). White Corp., Georgia-Pacific review, that it is the function of the our we recognize making determine the of witnesses and the Commission to credibility Stotts, Stores, v. to be their Inc. weight given testimony. Furthermore, (2001). 58 S.W.3d and, Commission has the medical evidence if the duty weighing evidence is its resolution is a of fact for the conflicting, Bartlett, Green Commission. Bay Packaging 999 S.W.2d

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. 12 S.W.3d 640 (2000); Lloyd Serv., How Parcel United ever, not, be that it its decisions are and should not so insulated make review Tucker v. Roberts- would meaningless. appellate Serv., Hence, McNutt, Parcel I United supra; Lloyd supra. rare occasions where we should believe that this is one of those defer resolution of evidence. not Commission’s conflicting I am convinced that fair-minded same people would not reach the same conclu before them as the Commission reverse the Com sions as the Commission and therefore would mission’s award of benefits. in this dissent.

I am authorized to state Judge joins Roaf