Foxx v. Bill's Superfoods, Inc.

Cite as 2017 Ark. App. 551

ARKANSAS COURT OF APPEALS
DIVISION I
CV-17-38
No.

OPINION DELIVERED: OCTOBER 25, 2017
HAROLD L. FOXX
APPELLANT APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G408922]
BILL'S SUPERFOODS, INC.
APPELLEE AFFIRMED

ROBERT J. GLADWIN, Judge

The Arkansas Workers’ Compensation Commission (Commission) denied Harold L.

Foxx’s claim for neck and back injuries. On appeal, Foxx argues that the Commission erred

by failing to admit additional evidence and by determining that the claim was not

compensable. We affirm.

Foxx worked part time for appellee Bill’s Superfoods, Inc. (Bill’s), when he sustained

a compensable injury to his right leg and groin on May 23, 2013. When Foxx later made

claims for neck and back injuries from the same accident, Bill’s controverted the claims. At

the hearing before the administrative law judge (ALJ), Foxx testified that he is sixty-two

years old and that until 2007 he was a truck driver, but he “blew-out” his back and had

been on disability for that since 2009. He said that he had three lower-back surgeries before

2013, and he began working at Bill’s in 2011, stocking freezers and lifting no more than

fifty to sixty pounds. He said that he had no difficulties performing his duties before May

23, 2013. On that date, he fell while pulling an ice tub out of the freezer. He said that he
Cite as 2017 Ark. App. 551

reported the injury to his supervisors, and he wrote in the report that he had hurt his “right

leg and groin.”

He said that before May 23, 2013, he never had problems with his neck and had

never had an MRI or a CT scan of it. He said that he had a partial rotator-cuff tear from a

slip and fall from his truck that had occurred before the May 23 incident, and he thought

the tear was the reason his neck was hurting after the incident. He said that his neck began

to tighten a couple of months after the May 23, 2013 accident, but he later admitted that

he had said in his deposition that his neck began to hurt a couple of weeks after the accident.

He said that he never went back and told his supervisors that he had hurt his neck or back

on May 23, 2013. He also said that before the May 2013 accident, he had played tennis.

Foxx continued to work without restrictions following the May 23, 2013 fall. He

said that his physical condition deteriorated until he quit working in October 2014, and he

underwent a cervical MRI. He told Dr. Abraham, whom he saw on October 6, 2014, that

he had “left shoulder problems that progressed into [his] neck over the last six months.” Dr.

Abraham suggested a cervical discectomy and fusion in Foxx’s cervical area, but no surgery

has been performed.

Foxx described his previous injuries that included a lower-back injury in a 1979

traffic accident, which was work related; a workers’-compensation claim for carpal tunnel

syndrome in his arms and wrists that was denied in the 1980s; and a 2004 work accident

that hurt his back and resulted in three back surgeries. Foxx said that he began receiving

disability benefits for his back injury in 2009, and he now receives $1200 a month. He

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settled his claim from the accident that involved the back surgeries for $97,000. He said

that his back was fine between 2009 and 2013.

Foxx said that in July 2014, he and his wife were involved in an accident when an

ice cream truck “t-boned” their vehicle. Foxx said that his medical bills from that accident

were paid for and he also received $9000. He also admitted that he had seen Dr. Brenza on

March 11, 2013, complaining of lower-back pain and right-hip pain to his groin. He had

indicated to the doctor that he was an active tennis player.

Walter Glenn Orr testified that he co-owns Bill’s and supervises all locations. He

said that Foxx had signed a form indicating that he had hurt his groin and leg. Foxx never

came back and told him about his neck or back being hurt. Foxx worked until October

2014, and the first Orr knew about Foxx’s claiming a neck injury was when Foxx filed with

the Commission in November 2014.

By an opinion filed February 19, 2016, the ALJ found that Foxx failed to prove by a

preponderance of the evidence that he sustained either a low-back injury or cervical injury

as a result of the May 23, 2013 work incident. Further, Foxx failed to prove by the same

standard that his need for treatment associated with his low back and neck were causally

related to the work incident on May 23, 2013. The ALJ acknowledged that Dr. Abraham

had noted objective findings of a cervical injury, as well as objective postoperative changes

in Foxx’s lumbar spine which “could have been aggravated” by the May 23, 2013 accident.

The ALJ found that this opinion was entirely based on Foxx’s history of an event that had

occurred a year and a half earlier. Further, Foxx conceded that he only complained of his

groin and right leg when he filled out the incident report.

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Foxx appealed to the Commission on March 10, 2016. However, before the

Commission’s decision was issued, Foxx filed with the Commission a petition to consider

additional evidence that he had seen a specialist on June 20, 2016, and obtained a medical

report that was not available to him before the hearing. On August 19, 2016, the

Commission denied Foxx’s request to introduce the follow-up medical report.

On November 22, 2016, the Commission affirmed the ALJ’s finding that Foxx failed

to prove that he sustained a compensable neck or back injury. The Commission stated,

The evidence before the Commission does not demonstrate that the claimant
injured his neck or back when he slipped and fell on May 23, 2013. Dr. Brenza
examined the claimant’s back on May 29, 2013 and noted “ttp,” viz., “tenderness to
palpation” over the claimant’s lumbar spine. “Tenderness” is not an objective
medical finding establishing an injury. See Rodriguez v. M. McDaniel Co., Inc., 98 Ark.
App. 138, 252 S.W.3d 146 (2007). The claimant continued to follow up with Dr.
Brenza for low back pain, which pain the claimant admitted had been present since
1979.

An MRI of the claimant’s cervical spine in August 2014 showed “Severe
multilevel degenerative disc disease.” The record does not show that the
degeneration reported in the claimant’s cervical spine was causally related to the May
2013 injury to the claimant’s right leg and groin. The claimant signed a Form AR-
C, Claim for Compensation, in November 2014 and reported that he had injured
his neck and back on May 23, 2013. In workers’ compensation cases, the
Commission functions as the trier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297,
757 S.W.2d 569 (1988). The determination of the credibility and weight to be given
a witness’s testimony is within the sole province of the Commission. Murphy v.
Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007). In the present matter, the
record does not corroborate the claimant’s assertion that he injured his neck and back
on May 23, 2013. The Full Commission finds that the claimant was not a credible
witness.

Dr. Abraham reported in December 2014 that a lumbar MRI showed bulging
and post-operative changes. Nevertheless, the Full Commission notes that similar
abnormalities were reported in a December 2011 MRI, before the accidental injury
occurring May 23, 2013. Dr. Abraham filled out a questionnaire and opined that the
claimant had injured his cervical spine and lumbar spine on May 23, 2013. It is within
the Commission’s province to weigh all of the medical evidence and to determine
what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d

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151 (1999). The record does not corroborate Dr. Abraham’s opinion in the present
matter, stated in December 2014, that the claimant injured his cervical and lumbar
spine on May 23, 2013. Dr. Abraham’s opinion regarding causation is not supported
by the evidence and is entitled to minimal evidentiary weight. Nor does the record
show that the abnormalities reported on the August 19, 2015 cervical and lumbar
MRI were causally related to the May 23, 2013 compensable injury to the claimant’s
right leg and groin.

Foxx filed a timely notice of appeal, and this appeal followed.

I. Additional Evidence

Arkansas Code Annotated section 11-9-705(c)(1)(B) (Repl. 2012) provides that each

party shall present all evidence at the initial hearing. And Haygood v. Belcher, 5 Ark. App.

127, 133, 633 S.W.2d 391, 394 (1982), sets forth the prerequisites for allowing submission

of newly discovered evidence: (1) Is the evidence relevant? (2) Is it cumulative? (3) Would

it change the result? (4) Was the movant diligent? The Commission has broad discretion

with reference to the admission of evidence, and its decision will not be reversed absent a

showing of abuse of discretion. Coleman v. Pro Transp., Inc., 97 Ark. App. 338, 249 S.W.3d

149 (2007).

Foxx argues that the Commission erred by failing to admit additional evidence. He

contends that after the appeal, but before the date the Commission’s opinion was issued, he

was able to secure an MRI and a CT scan of his right hip. He contends that the medical

records generated six days after the injury show a right-hip injury with a history of a fall on

ice in a freezer on May 23, 2013. He argues that “it is historically certain that lower back

issues commonly involve hip and leg symptoms.”

Foxx contends that he continued to experience symptoms in both his lower back

and right hip and in December 2014 he was “finally allowed to be evaluated with an MRI

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of his lower back.” The report recognized Foxx’s preexisting lower-back surgery, but

“revealed that post-operative changes were present.” He argues that, despite his complaints

of pain in the right hip and groin dating back to the time of the initial injury, the need for

cervical surgery overshadowed the need for treatment to other body parts, so no further

evaluation was immediately performed on his right hip. It was not until June 20, 2016, that

he was first able to obtain a thorough evaluation of his right-hip condition through

diagnostic testing. He argues that the Commission has discretion under the statute to

consider additional evidence, even though medical evidence should be submitted no less

than seven days before the hearing. See Ark. Code Ann. § 11-9-705(c)(3).

Foxx argues that Bill’s claimed that the new report was not relevant because it

involved Foxx’s right hip rather than his neck or lower back. Foxx contends that many

lower-back claims involve foot, leg, and hip symptoms and may even find their genesis as a

complaint of leg pain. Foxx contends, “Therefore, what the appellant and some of his

physicians apparently believed was some form of a lower-back problem was later identified

as an objective hip problem.” He argues that because this information “did not become

apparent” until it was too late, he has no remedy. He maintains that the purpose of the

workers’-compensation statutes is to pay reasonable and necessary medical expenses, Ark.

Code Ann. § 11-9-101, and that it would be appropriate “to avoid requiring the appellant

to accurately self-diagnose his condition and distinguish between a lower back or hip

condition.” He asks that the additional medical report be admitted; alternatively, he asks

that the case be remanded for consideration of a claim for additional benefits for the admitted

right-hip injury.

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Bill’s contends that Foxx has submitted no valid reason why the materials should be

allowed into the record. Bill’s agrees that the evidence is not cumulative but claims that the

other three requirements under Haygood, supra, have not been met. First, they are irrelevant

because the issues litigated were compensability of alleged back and neck issues. The

proffered medical record shows that Dr. Swymn is recommending a right-hip replacement,

and Bill’s contends that treatment for the right hip was never at issue. Bill’s also argues that

the result of the Commission’s decision would not change based on the proffered evidence

because there was no finding regarding hip compensability or treatment. Finally, Bill’s

claims that Foxx was not diligent in the generation of the report.

Bill’s cites cases holding that the absence of evidence establishing that the moving

party was diligent is enough to reject requests for introduction of additional evidence. See

St. Joseph’s Mercy Med. Ctr. v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45; Wayne Smith

Trucking v. McWilliams, 2011 Ark. App. 414, 384 S.W.3d 561. We are persuaded that the

Commission did not abuse its discretion in denying Foxx’s motion because Foxx did not

obtain the examination and resulting report until several months after the ALJ had denied

his claims.

II. Compensability

The standard of review in workers’-compensation cases is well settled. On appeal,

this court views the evidence in the light most favorable to the Commission’s decision and

affirms the decision if it is supported by substantial evidence. Schall v. Univ. of Ark. for Med.

Scis., 2017 Ark. App. 50, at 2, 510 S.W.3d 302, 303. Substantial evidence exists if reasonable

minds could reach the Commission’s conclusion. Id. The issue is not whether the appellate

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court might have reached a different result from the Commission, but whether reasonable

minds could reach the result found by the Commission; if so, the appellate court must affirm.

Id. Credibility questions and the weight to be given to witness testimony are within the

Commission’s exclusive province. Id. The Commission’s decision to accept or reject

medical opinions and how it resolves conflicting medical evidence has the force and effect

of a jury verdict. Id.

Foxx argues that the Commission erred by failing to determine that he sustained

compensable neck and back injuries. Foxx contends that the Commission totally discounted

Dr. Robert Abraham’s opinion that Foxx’s cervical and lumbar injuries were objective and

were the result of his May 23, 2013 accident. The Commission stated that these opinions

were not supported by the evidence and were entitled to minimal evidentiary weight. Foxx

contends that “there is no sufficient explanation for this conclusion.” He argues that “many

cervical problems begin with similar complaints of pain in the shoulder area.” The MRI

report of August 2, 2014, contains a history of a fall one year prior with neck and shoulder

pain. It also shows objective problems at two different levels of the cervical spine. The

medical notes indicate that Foxx presented with neck pain “caused by a fall that occurred

in May 2013.” On December 15, 2014, Dr. Abraham indicated that the objective cervical

problems (herniation at three cervical levels, as well as spinal-cord impingement) resulted

from the May 23, 2013 work accident.

Foxx argues that the evidence is that he reported symptoms related to his back almost

immediately after the accident. On May 29, 2013, the medical notes show that he

complained of pain in his lower back, hip, and knee. He argues that each of these symptoms

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can be evidence of a lower-back injury. He also argues that he was not having difficulties

performing his work duties before the May 23, 2013 accident and that no credible evidence

suggests that. Dr. Abraham stated that there were postoperative changes and other objective

problems after an MRI of the lumbar spine. On December 15, 2014, Dr. Abraham opined

that the May 23, 2013 accident resulted in a lumbar injury with positive objective findings.

Foxx points to the August 26, 2015 medical notes of Dr. Abraham that show severe lower-

back pain with radiation into the lower-right extremity and groin, and a constant burning

sensation. The corresponding MRI revealed a recurrent disc herniation with severe

effacement of the right lateral recess.

Foxx argues that even if he had some preexisting lumbar issues, he could not have

worked as a stocker carrying heavy frozen food with the injuries reflected in the record. He

argues that the medical notes from doctor visits before May 23, 2013, show no evidence of

pain radiation or other neurologic-type symptoms. He claims that the notes following the

May 23, 2013 accident reveal a lower-back condition that becomes progressively worse

with burning and radiating pain. Foxx contends that he was recommended for physical

therapy and that the medical note of August 5, 2013, shows a progression of the lumbar

radiation into his hamstring. He argues that the progression was shown to be objective by

MRIs showing postoperative changes and herniations. He argues that there is no proof that

the lumbar problems he had before the May 23, 2013 accident included any “significant

post-operative changes.” Dr. Abraham opined that the postoperative changes were caused

by the May 2013 accident, and Foxx argues that this opinion is consistent with the record.

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Thus, he claims that the Commission arbitrarily disregarded Dr. Abraham’s opinion. See

Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000).

Foxx argues that even though he had some prior lumbar issues, they did not prevent

him from performing his job duties. After the injury, his condition became significantly

worse so that his treatment was altered to include physical therapy; pain radiating into his

lower leg, and postoperative changes in his lumbar spine were diagnosed. He asserts that

these factors would lead a fair-minded person to conclude that the May 2013 work accident

caused additional lumbar problems or aggravated the preexisting lumbar problems so that

an objective spinal injury was present.

Bill’s contends that substantial evidence supports the Commission’s decision that

Foxx failed to prove that he sustained a compensable neck or back injury. We agree. In

Arkansas workers’-compensation law, a compensable injury includes accidental injuries that

cause physical harm requiring medical services when they occur in the course of

employment. Ark. Code Ann. § 11-9-102(4)(A)(i). Compensable injuries must be

established by objective findings, Ark. Code Ann. § 11-9-102(4)(D), and “objective

findings” are those findings that cannot come under the voluntary control of the patient.

Ark. Code Ann. § 11-9-102(16)(A)(i). Furthermore, complaints of pain and muscle

tenderness are not considered objective findings under the statute. Pafford Med. Billing Servs.,

Inc. v. Smith, 2011 Ark. App. 180, at 7–8, 381 S.W.3d 921, 926.

Foxx testified that he had prior workers’-compensation claims and that he knew to

report an injury. Wally Orr testified that Foxx reported that he had hurt his groin and leg,

that he did not report an injury to his neck or back, and that Orr knew nothing about the

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claimed injuries until November 2014 when Foxx filed a Form C with the Commission.

Orr testified that Foxx worked at Bill’s until October 2014, and Orr had regular interaction

with Foxx. He said that Foxx’s job performance never changed and that no modifications

were made to his job. Foxx admitted that he did not disclose the alleged back and neck

injuries on his claim for benefits. There was also a discrepancy in Foxx’s deposition

testimony and hearing testimony regarding the onset of his neck pain. Foxx is on Social

Security disability because of his back issues. Foxx received continuous treatment for his

lower back before the May 23, 2013 incident. Foxx did not have any treatment for cervical

issues until an MRI was done on August 2, 2014. He told Dr. Abraham that his neck

problems started over the past six months when he was examined on October 6, 2014,

which does not comport with an injury in May 2013. Foxx never reported neck injuries

to his employer even though he continued to work until October 2014.

Accordingly, substantial evidence supports the Commission’s decision.

Affirmed.

HARRISON and KLAPPENBACH, JJ., agree.

Orr Willhite, PLC, by: M. Scott Willhite, for appellant.

Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellees.

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