Jordan v. Tyson Foods, Inc.

911 S.W.2d 593, 51 Ark. App. 100, 1995 Ark. App. LEXIS 589

• Court: Court of Appeals of Arkansas
• Decided: December 6, 1995
• Docket: CA 94-705
• Status: Published

Opinions

Judith Rogers, Judge.

We previously rendered an unpublished opinion in this case, Jordan v. Tyson Foods, CA 94-705 slip op. (Ark. App. June 7, 1995), reversing and remanding the case back to the Commission. In response to this opinion, Tyson Foods petitioned this court for rehearing contending that we erred in our decision to reverse the Commission’s decision. After thoroughly reviewing the case en banc, we grant Tyson’s petition for rehearing and now affirm the Commission’s decision.

On June 4, 1990, Jack Jordan sustained a compensable injury to his right shoulder while working for Tyson Foods. Compensation was paid, and Mr. Jordan was off work for thirty days. In December of 1990, Mr. Jordan voluntarily quit working for Tyson. Mr. Jordan has not been employed since that time. On April 26, 1991, Mr. Jordan claimed that while he was getting out of bed he stretched his arms and his right shoulder dislocated. Subsequently, he filed a claim for additional benefits on June 28, 1991. The Commission found that Mr. Jordan had failed to prove by a preponderance of the evidence that he remained within his healing period from April 26, 1991, through December 2, 1991.

On appeal, Mr. Jordan argues that the Commission’s finding that he failed to prove entitlement to additional benefits is not supported by substantial evidence. We disagree.

In workers’ compensation cases, the claimant has the burden of proving by a preponderance of the evidence the com-pensability of his claim. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. 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 it deems worthy of belief. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). And, the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Id.

First, we note that Mr. Jordan failed to abstract any medical evidence presented in this case. The only evidence in this case that Mr. Jordan chose to abstract was a portion of his testimony and a portion of his wife’s testimony. It is well established that appellant is required to abstract all relevant material pertaining to the issues on appeal. Ark. Sup. Ct. R. 4-2(a)(6). In this case appellant has failed to adequately abstract all relevant evidence and comply with Rule 4-2(a)(6). See Rapley v. Lindsey Const. Co., 5 Ark. App. 31, 631 S.W.2d 844 (1982).

Despite Mr. Jordan’s flagrantly deficient abstract, the record indicates that there is no evidence restricting or prohibiting Mr. Jordan from working between April 26,1991, and December 2,1991. In fact, Mr. Jordan testified that he had been actively seeking employment during this time. The Commission found that Mr. Jordan offered insufficient medical evidence indicating that he remained within his healing period or that he remained totally incapacitated from working during that period of time. The Commission noted that “any indication that claimant was totally incapacitated from working comes directly from the claimant. ... Claimant’s testimony when considered in conjunction with the other evidence of the record does not constitute the preponderance of the credible evidence.” After reviewing the record, we cannot say that there is no substantial basis for the Commission’s denial of additional temporary total benefits.

Next, Mr. Jordan argues that there is no substantial evidence to support the Commission’s finding that Tyson is not liable for his additional medical expenses.

The record reveals that Mr. Jordan did not notify Tyson until after he sought medical treatment and after surgery had been performed. It is also clear that Mr. Jordan did not return to his primary treating physician who treated him at the time of his com-pensable injury. The record indicates that Mr. Jordan was treated by an unauthorized physician. The record also reveals that Mr. Jordan filed the claim for medical benefits with his wife’s insurance, then waited several months after his surgery and after he had hired an attorney to notify Tyson that he had had a recurrence of his compensable injury and was in need of treatment.

Arkansas Code Annotated § 11-9-514 (Supp. 1993) provides that treatment or services furnished or prescribed by any physician other than the ones selected according to the statute, except for emergency treatment, shall be at the claimant’s expense. The Commission found that the medical treatment received by Mr. Jordan was unauthorized and, therefore, Mr. Jordan was responsible for the costs. We cannot say that there is no substantial evidence to support the Commission’s decision based on the record before us.

Mr. Jordan also contends that the Commission failed to make findings as to whether his medical treatment was emergency treatment.

As Tyson points out in its brief and as the record displays, this argument was not raised below before the ALJ or before the Commission. Because we do not consider issues raised for the first time on appeal, we decline to address Mr. Jordan’s final point. See Mosley v. McGehee School Dist., 36 Ark. App. 11, 816 S.W.2d 891 (1991).

In conclusion we note that in the previous appeal of this case, we stated that it appeared that the April 26,1991, occurrence was related to the June 1990 injury and, therefore, compensable. This determination constituted a de novo review rather than a review of the evidence in the strongest light in favor of the Commission’s findings. We erroneously weighed the evidence at the appellate level, and perhaps inadvertently overlooked that the Commission’s findings of fact may have been based on credibility determinations that we could not make. Since a thorough review of the record has precipitated that decision, it is our conclusion to grant the petition for rehearing and reverse ourselves on matters where we may have misspoken. Our error was not one of willfulness, but was an honest attempt to reconcile the later injuries with the earlier accident. We were wrong in our review and reverse our earlier opinion. In sum, we grant the petition for rehearing and affirm the Commission’s decision denying additional temporary total benefits.