Leming v. La-Z-Boy, Inc.

2015 Ark. App. 336, 463 S.W.3d 719, 2015 Ark. LEXIS 341, 2015 Ark. App. LEXIS 409
CourtCourt of Appeals of Arkansas
DecidedMay 20, 2015
DocketCV-15-17
StatusPublished

This text of 2015 Ark. App. 336 (Leming v. La-Z-Boy, 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
Leming v. La-Z-Boy, Inc., 2015 Ark. App. 336, 463 S.W.3d 719, 2015 Ark. LEXIS 341, 2015 Ark. App. LEXIS 409 (Ark. Ct. App. 2015).

Opinion

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 compen-sable 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, |22013, 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, Lem-ing stated that Erter and the employer’s safety coordinator, Michael Frawley, met | shim 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 |4the 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 microdiscec-tomy 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 Ap-pellees 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 Fraw-ley, he did 1 snot 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 Lem-ing 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 Fraw-ley, 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 Lem-ing 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.

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Bluebook (online)
2015 Ark. App. 336, 463 S.W.3d 719, 2015 Ark. LEXIS 341, 2015 Ark. App. LEXIS 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leming-v-la-z-boy-inc-arkctapp-2015.