Galloway v. Tyson Foods, Inc.

378 S.W.3d 210, 2010 Ark. App. 610, 2010 Ark. App. LEXIS 664
CourtCourt of Appeals of Arkansas
DecidedSeptember 22, 2010
DocketNo. CA 10-219
StatusPublished
Cited by11 cases

This text of 378 S.W.3d 210 (Galloway v. Tyson Foods, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Galloway v. Tyson Foods, Inc., 378 S.W.3d 210, 2010 Ark. App. 610, 2010 Ark. App. LEXIS 664 (Ark. Ct. App. 2010).

Opinion

LARRY D. VAUGHT, Chief Judge.

|! Kelly Galloway appeals the decision of the Workers’ Compensation Commission finding that he failed to prove that he sustained a gradual-onset compensable injury to his right shoulder. He argues that there is a lack of substantial evidence supporting the finding. We affirm.

Galloway worked for appellee Tyson Foods, Inc., on three occasions. His most recent employment began in January 2004. He worked in the “live hang” department, where he hung chickens. His goal was to hang thirty-five chickens per minute, but he was unable to do it. After three months, he transferred to a department where he maintained knives, working there for one and a half years. In October 2006, he moved to the packing line where he worked until February 12, 2007. There, his jobs were varied. He stacked tubs that weighed seventy-pounds, hung chickens, pushed tubs filled with chickens, packed birds into boxes, and made boxes. He testified that whatever he did in the packing department, he did it over and over as quickly as he could. On February 12, 2007, he was transferred to sanitation, where he cleaned equipment. | ¡After a couple of weeks, he returned to the packing line, where he remained until May 30, 2007, when he took a leave of absence from work. After a one-year leave, Galloway’s employment with Tyson was terminated.

According to Galloway, sometime in early 2007, while working on the packing line, he began to experience pain in his right shoulder. In his deposition, he stated that the pain began in January 2007. At the hearing, he testified that the pain began in February 2007. The first medical report reflecting Galloway’s complaints of shoulder pain (and right elbow pain) was on March 15, 2007. On that date, Galloway went to his family physician, Dr. Robert Williams, who noted that Galloway’s pain started Monday, March 12, 2007. While the report did not mention that his pain was work related, Galloway testified that he told Dr. Williams that his elbow and shoulder pain were caused by his work. Dr. Williams took Galloway off work, which Galloway testified improved his condition. But once he went back to work, the pain returned.

Galloway was seen again by Dr. Williams on April 11, 2007. There was no mention in that report that his complaints were caused by work activities. Galloway was given a cortisone shot, which provided some relief, but ultimately, the pain returned, and he took a leave of absence from work. He testified that he took the leave because of his shoulder pain; however, he conceded that when he filled out the paperwork for the leave, he stated that his requested leave was non-work related. It was his testimony that he was afraid that he would be fired and lose his insurance if he stated that it was work related. And while he admitted that, when he filled out the leave form, he reported to the human-resource manager that it was possible that he injured his shoulder doing yard work, he testified that he did not injure his shoulder that way.

RGalloway continued to receive treatment from Dr. Williams on June 1, 2007, who noted the possibility of a rotator-cuff injury. There was no mention that the shoulder pain was work related. Dr. Williams referred Galloway to orthopedic surgeon Dr. Kevin Rudder, who first saw Galloway on June 28, 2007. This report reflected a cause of Galloway’s shoulder pain — “[h]e evidently was lifting something at work and reportedly he was having pain.” Dr. Rudder diagnosed “impingement syndrome with probable rotator cuff tear.” A subsequent MRI did not reveal a rotator-cuff tear, but did reveal tendinosis and significant degenerative changes. Dr. Rudder’s new diagnosis was “long term overuse impingement syndrome,” and he performed surgery on Galloway’s shoulder on August 20, 2007. No rotator-cuff injury was identified during surgery. While Galloway appeared to be improving at his October 30, 2007 visit with Dr. Rudder, the following month Dr. Rudder opined that Galloway “cannot go back to work to [lifting chickens].”

On February 18, 2008, Dr. Rudder performed a second surgery. During this surgery, a small rotator-cuff injury was discovered and repaired. While Galloway was doing “extremely well” ten days after surgery, his problems had returned by April 2008, and Dr. Rudder questioned Galloway’s ability to return to work at Tyson. On May 15, 2008, Dr. Rudder opined that Galloway had reached maximum medical improvement and stated that he should not return to work at Tyson that included substantial overhead lifting. In a June 4, 2008 letter, Dr. Rudder stated that

it is my medical opinion that this patient’s injury was definitely a cause of repeated motion stacking and lifting heavy tubes [sic] of ice and chicken at Tyson’s. I have discussed this with him and I have told him that going back to work at Tyson is likely |4going to be unreasonable to try and do.

Dr. Rudder subsequently issued Galloway a twenty-percent impairment rating. Galloway stated that because of his injury, he was unable to return to work at Tyson.

At the hearing, Galloway stated that prior to March 2007, he reported his right-shoulder pain to the company nurse, Kristy Stancil, and to his supervisor, Cassandra Looney. He stated that he was aware that he was supposed to fill out worker’s compensation papers for his injury, but that no one offered him these papers. He did not fill out the workers’ compensation forms until December 2007.

Looney, who was called by Galloway, worked at Tyson until February 2007, supervising the packing line. She said that during that time Galloway was rotated around to different jobs in the department. She further stated that she did not remember him complaining of shoulder or elbow pain. She also did not remember him working as a tub stacker, which was a permanent assignment job. Stancil, the company nurse, also had no record of Galloway reporting a shoulder problem, although she did have records reflecting that he complained of right-elbow pain in February and March 2007.

The ALJ issued an opinion denying benefits to Galloway, finding that he failed to prove that his right-shoulder problems were caused by a specific incident or gradual onset while working at Tyson. The ALJ specifically found that Galloway failed to establish a causal connection between the injury and his employment at Tyson or that his work was rapid and repetitive. In reaching these findings, the ALJ questioned Galloway’s credibility and found the testimony of Looney (who no longer worked for Tyson) and Stancil credible. The Commission lfiaffirmed and adopted the ALJ’s findings.

Galloway’s sole point on appeal is that substantial evidence fails to support the Commission’s finding that he failed to prove that he sustained a gradual-onset injury. In appeals involving claims for workers’ compensation, our court views the evidence in a light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Holland Group, Inc. v. Hughes, 95 Ark. App. 369, 371, 237 S.W.3d 120, 122 (2006). Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Hughes, 95 Ark. App. at 371, 237 S.W.3d at 122. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision.

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Cite This Page — Counsel Stack

Bluebook (online)
378 S.W.3d 210, 2010 Ark. App. 610, 2010 Ark. App. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galloway-v-tyson-foods-inc-arkctapp-2010.