Kuhn v. Majestic Hotel

Judith Rogers, Judge. This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant had failed to prove by a preponderance of the evidence that he sustained a compensable back injury or that the subsequent surgery was reasonable and necessary medical treatment. On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision. We disagree and affirm. The record reveals that appellant worked for appellee as a cook. He had been working for two to three months when, on March 20, 1992, he allegedly slipped in a puddle of water in the walk-in cooler, striking the right side of his lower back on the corner of a wall and falling to the floor. Appellant was taken to St. Joseph’s Hospital by ambulance. He was given a drug test; x-rays were performed; and he was given a shot and released. Subsequently, appellant was seen by several doctors and on May 21, 1992, Dr. James M. Arthur performed low back surgery. Appellant filed a claim for benefits. Appellee contested the claim contending that appellant did not slip and fall. In a workers’ compensation case, the burden rests on the claimant to establish his claim for compensation by a preponderance of the evidence. Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Marcoe v. Bell Int’l, 48 Ark. App. 33, 888 S.W.2d 663 (1994). In cases where a claim is denied on the basis that a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Brantley v. Tyson Foods, Inc., 48 Ark. App. 27, 887 S.W.2d 543 (1994). The question 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. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). Appellant argues that it is undisputed that the injury he sustained to his back was clearly related to his employment, and thus compensable. We disagree. The record reveals that appellant was the only person to witness his fall. He testified that he slipped in a large puddle of water around the cooler which caused him to fall backward six feet and strike a wall with his back. Appellant said that he began screaming and an ambulance had to come and take him to the hospital. The record indicates that appellant was taken to the hospital and given medication and released the same day. Russell Kinsey, the executive chef, testified that he arrived in the area where appellant had allegedly fallen and appellant was lying on the floor. He asked appellant what happened and appellant said he slipped in a puddle of water. Mr. Kinsey said that he looked around and asked “where is the water?” According to Mr. Kinsey, appellant responded that he guessed that his uniform had mopped it up. Mr. Kinsey testified that he did not see any water on the floor. On cross-examination, appellant’s counsel asked if water had ever accumulated on the floor around the cooler when it was being stocked. Mr. Kinsey replied that it did, but that the area was mopped every afternoon after deliveries and that it had been done that day before appellant’s alleged fall. The medical records reveal that appellant had a consultation with Dr. Stuart McConkie on May 18, 1992. Dr. McConkie’s notes indicate that appellant’s past history was negative as far as back trouble was concerned. However, other medical evidence reflects that, as early as 1978, appellant had minimal joint space narrowing at L5-S1, the same location as his recent injury. The medical records also reveal that appellant had a history of spina bifida occult, a congenital anomaly of the vertebrae, and a past history of back problems at exactly the same location his recent back surgery was performed. In fact, he had a prior surgical procedure on the exact same area in 1990 because he had been involved in an automobile accident. Consequently, the record reveals that appellant failed to give. Dr. McConkie an accurate history of his back problems. Also, it appears in the record that appellant stated that he was referred by Dr. John Wilson to see another surgeon. The medical records indicate that Dr. Wilson did not advise appellant to see a neurosurgeon and, in fact, he stated that he did not feel appellant required back surgery. The Commission stated in its opinion that: It is significant that claimant maintains he fell in a three or four foot puddle of water and no one was able to corroborate the existence of the large puddle of water. In fact, testimony was offered that there was not a puddle of water in the cooler. Furthermore, we are not persuaded that claimant was thrown backward approximately six feet from where he allegedly slipped before hitting a wall and falling to the ground. Also, we find that claimant’s credibility is questionable. Not only was Dr. McConkie related a faulty history, claimant either intentionally or unintentionally misrepresented at the hearing what Dr. Wilson told him concerning seeing another surgeon. A review of the record indicates that Dr. Wilson did not advise claimant to see another surgeon. In fact, Dr. Wilson clearly stated that he was of the opinion claimant would not require back surgery. Under the circumstances of this case, we are unable to find any causal connection between appellant’s injury and his employment other than appellant’s own assertion that a fall occurred. It is clear from the Commission’s opinion that it did not find appellant’s account worthy of belief. The dissent questions the Commission’s credibility determination. However, it has been a long standing rule that it is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Rice land Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). It is not the function of this court to weigh the evidence and determine where the preponderance of the evidence lay. Beeson v. Landcoast, 43 Ark. App. 132, 862 S.W.2d 846 (1993). In keeping with our standard of review, we conclude that the Commission’s finding that appellant was not credible was a permissible one and that the Commission’s opinion displays a substantial basis for the denial of relief. See Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). Based on our decision with regard to the compensability of appellant’s back surgery, we need not address his remaining point on appeal. Affirmed. Cooper, Robbins, and Mayfield, JJ., dissent.