Leming v. La-Z-Boy, Inc.

Cite as 2015 Ark. App. 336

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-17

LARRY EVERETT LEMING Opinion Delivered MAY 20, 2015
APPELLANT
APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION
[NOS. G400539 and G400540]
LA-Z-BOY, INC., and SEDGWICK CMS
APPELLEES
AFFIRMED

CLIFF HOOFMAN, Judge

Appellant Larry Everett Leming appeals from the Arkansas Workers’ Compensation

Commission’s (Commission) decision, affirming and adopting the opinion of the

Administrative Law Judge (ALJ) finding that Leming failed to prove by a preponderance of

the evidence that he suffered a compensable injury to his lower back. On appeal, Leming

argues that (1) the opinion of the ALJ does not make specific findings of fact to support the

decision and remand is appropriate; (2) the Commission’s decision that he failed to prove that

he sustained a compensable injury to his lower back on July 8, 2013, is not supported by

substantial evidence; and (3) the Commission’s decision that he failed to prove that he

sustained a compensable injury to his lower back on July 15, 2013, is not supported by

substantial evidence. We affirm.

Leming, who was thirty-six years old at the time of his injury, was employed by

appellee La-Z-Boy, Inc. (La-Z-Boy) as a material handler. Leming stated that on July 8,
Cite as 2015 Ark. App. 336

2013, he was stacking wood on a pallet at work when he “felt like something pulled in his

back.” He continued to work his full shift, indicating that the pain was annoying but that

it did not prevent him from performing his work duties. Leming testified that he did not

report the injury, as required under La-Z-Boy’s policies, because he believed the pain was

only temporary. When he woke the next morning, however, Leming stated that his back

was very stiff, so he sought treatment with Dr. Jeffery Jenkins at the emergency room. An

x-ray was taken of his lumbar spine, but no abnormalities were revealed.

Leming testified that he also sought treatment on July 9, 2013, at Northeastern

Oklahoma Community Health Center (NeoHealth), which he considered to be his primary-

care facility, and he was instructed not to return to work until July 15, 2013. Leming stated

that his girlfriend, who also worked at La-Z-Boy, gave the doctor’s note to his employer.

He remained off work as instructed and did not fill out an injury report or otherwise notify

La-Z-Boy about the July 8, 2013 injury.

Leming stated that his pain completely subsided and that he returned to work on July

15, 2013. Later that morning, he was picking up a 30- to 40-pound box of springs when he

felt something “pop” in his back, forcing him to drop the box. He indicated that this injury

was much different than the one he had suffered the week before and that he could barely

move. Leming stated that this injury was in his lower back and that he was not sure if it was

in the exact same spot as his prior injury. He testified that he immediately went to notify his

supervisor, Neil Erter, who was in a meeting at the time. After Erter was notified about the

injury, Leming stated that Erter and the employer’s safety coordinator, Michael Frawley, met

2
Cite as 2015 Ark. App. 336

him in the safety office, where Frawley rubbed cream on his back and placed a rubber glove

filled with warm water on it. Leming indicated that they did not send him to the doctor and

that an incident report was not filed, even though he told Erter and Frawley that the injury

happened at work. Leming did, however, fill out Family Medical Leave Act (FMLA)

paperwork at that time.

Later that day, Leming sought treatment on his own with Dr. Jenkins, who prescribed

medication. Dr. Jenkins’s report states that Leming “re-hurt” his back by picking up a box

of springs and that he wanted his FMLA and short-term disability paperwork to be filled out.

After a follow-up visit on July 22, 2013, Dr. Jenkins recommended physical therapy and

noted that an MRI and surgical intervention might be necessary. Dr. Jenkins further noted

that he had spoken extensively with Leming regarding whether this was a workers’

compensation matter that needed to be discussed with his employer and that Leming

indicated it was not.

On September 6, 2013, Leming was referred to Dr. Nihat Gurkan, an orthopedic

surgeon, who stated that the physical-exam findings were consistent with L4-5 and L5-S1

foraminal stenosis and disk herniation. Dr. Gurkan ordered an MRI on September 25, 2013,

which revealed a lateral disk protrusion at the L3-4 level. Leming was then referred to a

spine specialist, Dr. Gregory Wilson, on December 10, 2013. In his report, Dr. Wilson

noted with regard to the history of the injury that Leming stated that he had been doing

some work at home in July 2013 when he felt a “small pop in his low back.” The report

further stated that Leming felt the onset of pain at that time but that when he went to work

3
Cite as 2015 Ark. App. 336

the next day, he experienced “an additional pop that has persisted.” Dr. Wilson referred

Leming for epidural steriod injections and stated that if there was no improvement, a

microdiscectomy would be considered.

Leming filed claims for workers’ compensation benefits in January 2014, indicating

that he had suffered work-related injuries on both July 9 and 15, 2013.1 Appellees

controverted the claims in their entirety, and a hearing was held on July 9, 2014. Leming

testified that he has not been able to return to work since July 15, 2013, due to his back

injury. He indicated that he had been on medical leave and had received short-term

disability benefits through mid-December 2013, after which time he had been terminated

from his employment with La-Z-Boy. Leming stated that he was in need of additional

medical treatment but could not afford it. He claimed that Dr. Wilson’s report was incorrect

when it stated that he had hurt his back at home, although he admitted that he had told

Frawley on July 15 that he did not know if his back injury was due to a work-related

incident.

Frawley testified that he was responsible for overseeing and investigating all work-

related injuries at La-Z-Boy. He stated that it was La-Z-Boy’s policy that such injuries be

reported as soon as possible both to him and to the employee’s supervisor. Frawley testified

that it was in December 2013 when he first became aware that Leming was claiming that he

had suffered a work-related injury instead of a personal injury. According to Frawley, he did

1
Leming later clarified at the hearing that the correct date was July 8, 2013, not July
9, and the parties’ stipulations were changed to indicate the correct date.

4
Cite as 2015 Ark. App. 336

not receive a report of a work injury to Leming on July 8, 2013, and he did not see the

doctor’s note excusing Leming from work for a week. Frawley testified that Leming came

to his office on July 15, 2013, and complained of trouble with his back. When Frawley

asked Leming when his back trouble began, Leming told him that it was from an incident

at home. Frawley testified that at no time on July 15 did Leming state that he was injured

at work on either that day or July 8. He stated that he rubbed some Bio-Freeze on Leming’s

back and told him to go to his own physician because it was not a work-related injury.

According to Frawley, it is La-Z-Boy’s procedure to make the doctor’s appointment for an

employee if the injury is work related. Frawley testified that Erter, Leming’s supervisor, was

in a meeting and was not present when Leming reported his back issue.

In his deposition testimony, Erter confirmed that he was in a morning meeting when

Leming reported his back injury to Frawley on July 15, 2013. Erter recalled that Frawley had

already left to take Leming to the doctor by the time his meeting had ended. According to

Erter, he never spoke with Leming about the injury after that date or filled out an incident

form, even though it was standard practice to do so for a work-related injury. Leming’s

time-sheet information had a notation on July 8 that stated “unexcused sick” and a notation

on July 15 that he had left early due to the “same injury as last week.” Erter testified that he

was convinced that Leming injured his back at work; however, he stated that he had no

direct knowledge of where Leming suffered the injury and that he would not dispute

Frawley’s testimony that Leming did not report a work-related injury.

Following the hearing, the ALJ found that Leming had failed to prove by a

5
Cite as 2015 Ark. App. 336

preponderance of the evidence that he had suffered a compensable injury to his lower back

on either July 8 or 15, 2013. The Commission affirmed and adopted the findings and

conclusions of the ALJ in an opinion filed on November 4, 2014. Leming timely appealed

from the Commission’s decision.

When the Commission denies a claim, the substantial-evidence standard of review

requires us to affirm if its opinion displays a substantial basis for the denial of relief. Wright

v. Conway Freight, 2014 Ark. App. 451, 441 S.W.3d 45. In making this determination, we

view the evidence and all reasonable inferences deducible therefrom in the light most

favorable to the findings of the Commission. Id. This court must affirm the decision of the

Commission if it is supported by substantial evidence. Id. Substantial evidence is that

evidence which a reasonable mind might accept as adequate to support a conclusion of the

Commission. Id. The issue on appeal 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. Id. Furthermore, we defer to

the Commission’s determinations of credibility and its resolution of conflicting testimony.

Id. When the Commission, as it did in this case, affirms and adopts the ALJ’s findings, this

court considers both the ALJ’s decision and the Commission’s opinion. Montgomery v. J &

J Lumber Co., 2011 Ark. App. 129.

Leming first argues on appeal that the ALJ’s decision, which was then adopted by the

Commission, fails to contain sufficient factual determinations to enable this court to review

the Commission’s conclusion that he failed to meet his burden of proving a compensable

6
Cite as 2015 Ark. App. 336

back injury. He therefore contends that we must reverse and remand on this basis.

We disagree that the ALJ’s opinion fails to contain the factual findings necessary for

this court to conduct a meaningful review on appeal. As Leming asserts, the Commission’s

decision must set forth its findings and conclusions with sufficient detail and particularity to

allow us to decide whether its decision is in accordance with the law, although a full

recitation of the evidence is not necessary. Clark v. Peabody Testing Serv., 265 Ark. 489, 579

S.W.2d 360 (1979); Parker v. Advanced Portable X-Ray, LLC, 2014 Ark. App. 11, 431 S.W.3d

374.

The ALJ’s opinion in this case not only included two pages of “Factual Background,”

it also contained four pages of “Adjudication,” wherein the ALJ set forth the burden of

proof, the applicable law, and an analysis of the relevant testimony and evidence. With

regard to the alleged July 8, 2013 injury, the ALJ specifically found that there were no

objective findings establishing an injury. As to the July 15, 2013 injury, the ALJ noted that

the evidence was conflicting as to whether Leming suffered a work-related injury and thus

concluded that Leming failed to meet his burden of proof to establish a compensable injury.

These findings and conclusions are sufficient for this court to review the issues presented on

appeal in this case.

In his second point on appeal, Leming contends that the Commission’s decision that

he failed to prove that he sustained a compensable injury to his lower back on July 8, 2013,

is not supported by substantial evidence and is contrary to the facts and the law. To prove

the occurrence of a specific-incident compensable injury, the claimant must establish that (1)

7
Cite as 2015 Ark. App. 336

an injury occurred arising out of and in the scope of employment; (2) the injury caused

internal or external harm to the body which required medical services or resulted in disability

or death; (3) the injury is established by medical evidence supported by objective findings, as

defined in Ark. Code Ann. § 11-9-102(16); and (4) the injury was caused by a specific

incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-

102(4)(A)(i) (Repl. 2012). The claimant has the burden of proving these elements by a

preponderance of the evidence. Ark. Code Ann. § 11-9-102(4).

In finding that Leming failed to meet his burden of proof with respect to his July 8,

2013 injury, the ALJ noted that Leming did not report this alleged work-related injury to La-

Z-Boy, even though he was aware of the company requirement that all injuries must be

reported to the safety office. In addition, he sought medical treatment on his own and did

not request workers’ compensation benefits for the week he remained off work for this injury.

While Leming argues that these facts, by themselves, should not lead to the inference that he

did not suffer a compensable injury, the ALJ did not rely solely on this evidence to deny his

claim. Instead, the ALJ also found that there was no medical evidence supported by objective

findings to establish an injury on that date. As the ALJ noted, the x-ray of Leming’s lumbar

spine on July 9, 2013, was unremarkable, and the remaining medical records related to that

injury do not contain any other objective findings. Because the medical records indicate that

he was discharged from the hospital on July 9 in a wheelchair and that he was restricted from

lifting heavy objects for one week, Leming contends that there are objective findings of an

injury. However, pursuant to Arkansas Code Annotated section 11-9-102(16), “[o]bjective

8
Cite as 2015 Ark. App. 336

findings are those findings which cannot come under the control of the patient[,]” and all of

the medical evidence related to the July 8 injury, other than the x-ray, were based on

Leming’s subjective complaints. Therefore, the Commission’s decision finding that he failed

to prove by a preponderance of the evidence a compensable back injury on July 8, 2013, is

supported by substantial evidence, and we affirm on this point.

In his final point on appeal, Leming argues that the Commission’s decision that he

failed to prove a compensable injury to his lower back on July 15, 2013, is also not supported

by substantial evidence and is contrary to the facts and the law. With respect to this

particular injury, the ALJ first recited the evidence in the record that supported Leming’s

claim, then detailed all the evidence that contradicted the claim. The ALJ assigned little

weight to Erter’s testimony, noting that it contradicted other evidence and that Erter

admitted to having no direct knowledge of the circumstances surrounding the injury. The

opinion then concluded,

In summary, claimant has the burden of proving by a preponderance of the
evidence that he suffered a compensable injury or an aggravation of a pre-existing
condition on July 15, 2013. While there is certainly evidence in the record which
corroborates claimant’s testimony that he suffered an injury to his low back on that
date, there is also evidence in the record which contradicts claimant’s testimony.
Claimant admitted at the hearing that he told Frawley that he did not know whether
he had suffered a work-related accident. In addition, according to Dr. Jenkins he had
an extensive discussion with claimant as to whether this was a workers’ compensation
claim and claimant indicated that it was not. Given these contradictory statements,
I find that claimant has failed to meet his burden of proving by a preponderance of
the evidence that he suffered a compensable injury to his back while working for
respondent on July 15, 2013.

Leming contends that the conflicting evidence discussed by the ALJ to support the

denial of his claim was “immaterial” and “nothing more than a recital of contradictory

9
Cite as 2015 Ark. App. 336

testimony and medical records.” He argues that much of this evidence related to whether

he gave sufficient notice of an injury and that the ALJ effectively considered his conflicting

statements to his employer about the “nature” of his injury to instead be evidence of non-

compensability. However, it was Leming’s burden to prove that his back injury arose out

of and in the course of his employment, in addition to the other requirements for a

compensable injury. Thus, his conflicting statements regarding the cause of his injury were

indeed relevant to the ALJ’s and Commission’s determination of whether he proved that he

sustained a compensable injury. The ALJ did not deny Leming’s claim based on a failure to

give sufficient notice, and Leming’s discussion of Williams Mfg. Co. v. Walker, 206 Ark. 392,

175 S.W.2d 380 (1943), and Siders v. S. Mattress Co., 240 Ark. 267, 398 S.W.2d 901 (1966),

both of which involved the specific statutory notice required for a hernia injury, is therefore

inapposite.

Leming further challenges the ALJ’s resolution of the conflicting evidence and argues

that there is no reasonable justification to disregard his testimony, which was supported by

medical evidence, in favor of the uncorroborated testimony of Frawley, an interested witness.

Contrary to Leming’s argument, the ALJ did not disregard his testimony. Instead, the ALJ

noted that Leming’s statement to Frawley that he did not know whether his back injury was

work related, as well as his indication to Dr. Jenkins that this was not a workers’

compensation matter, contradicted his other statements to medical personnel and his

testimony at the hearing that the injury was caused by his work duties. Furthermore,

Frawley’s testimony was corroborated by Leming’s own statements, as contained in the

10
Cite as 2015 Ark. App. 336

medical reports of Dr. Jenkins and Dr. Wilson, who indicated that the injury was not work

related. While Leming refuted the statement in Dr. Wilson’s report, it was the Commission’s

responsibility to determine credibility and resolve conflicting testimony. Wright, supra.

When there are contradictions in the evidence, it is the Commission’s duty to

reconcile conflicting evidence and to determine the true facts. Hickman v. Kellogg, Brown &

Root, 372 Ark. 501, 277 S.W.3d 591 (2008). In addition, the Commission is not required

to believe the testimony of the claimant or any other witness, but may accept and translate

into findings of fact only those portions of the testimony that it deems worthy of belief. Id.

Based on the conflicting evidence regarding whether Leming’s July 15, 2013 back injury was

caused by his employment, the ALJ found that Leming failed to meet his burden of proving

a compensable injury. This finding is supported by substantial evidence, and we affirm on

this point as well.

Affirmed.

KINARD and WHITEAKER, JJ., agree.

Odom Law Firm, P.A., by: Conrad T. Odom, for appellant.

Bassett Law Firm LLP, by: Curtis L. Nebben, for appellee.

11