Cite as 2019 Ark. App. 569 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.09 11:16:54 DIVISION I -05'00' No. CV-19-540 Adobe Acrobat version: 2022.001.20169 Opinion Delivered December 4, 2019 M.A. MORTENSON COMPANIES AND ARCH INSURANCE APPEAL FROM THE ARKANSAS COMPANY/GALLAGHER BASSETT WORKERS’ COMPENSATION SERVICES, INC. COMMISSION APPELLANTS [NO. G708560]
V. AFFIRMED MAE REED APPELLEE
N. MARK KLAPPENBACH, Judge
Appellants M.A. Mortenson Companies, Arch Insurance Company, and Gallagher
Bassett Services, Inc., appeal the decision of the Arkansas Workers’ Compensation
Commission awarding benefits to appellee Mae Reed. Appellants contend that substantial
evidence does not support the Commission’s conclusion that Reed’s right shoulder injury
is compensable. We affirm.
Reed was employed by M.A. Mortenson Companies as an assembler of solar panels.
She was the only witness to testify at the hearing before the administrative law judge (ALJ),
and her deposition was also admitted into evidence. According to her testimony, she was
injured on Saturday, November 18, 2017, when a gust of wind blew a solar panel she was
holding into the air and blew her arm back over her head. She was not in pain at that time
and continued working, but she did stop the employer’s “safety man,” Joe Pena, as he drove
around checking on employees. Reed said that after she told Pena what had happened, he contacted her supervisor on his walkie-talkie, and two more employees were sent to help
Reed and her coworkers. Reed said that work ended early that day due to strong winds
and heavy rain.
The day of the incident was Reed’s last scheduled day of work before leaving on a
trip out of the country on Tuesday, November 21. She acknowledged that on Monday
before her trip, a coworker called and told her that the whole crew was being laid off;
however, Reed was not contacted by the employer. Reed said that her pain started Tuesday
night, but she did not get any medical treatment while out of the country because no one
there spoke English. Reed arrived back home in the early morning hours of November 28
and immediately went to the emergency room.
Reed testified that she told emergency-room personnel that the problems with her
shoulder were from a work-related accident; however, the emergency-room records do not
reflect this. A “triage note,” which provides that Reed was seen at 4:13 a.m., states that
“[p]atient states that about a week ago threw right [arm] up and felt like it pulled something,
now it hurts all the time since then.” The next page of the records provides the following:
“Mechanism of injury comment: About a week ago, snatched right shoulder up too quick,
hurt ever since, painful and hard to lift.” Reed was diagnosed with a strained shoulder and
told to follow up with her family physician, Dr. Dennis Yelvington.
Later that same morning, Reed went to the job site to report her injury. She said
that the employer became upset with her and wanted to know why she had not let go of
the panel when it was blown by the wind. Reed testified that they were taught to not let
go of panels because someone could be injured, and on this occasion there were people
2 working behind her. She said that she spoke to Pena, and he remembered her telling him
about the incident with the panel; however, Reed’s boss told her shortly thereafter that
Pena said he did not remember anything. A handwritten statement by Pena dated
December 4, 2017, was admitted into evidence. Pena wrote that Reed had made a
comment that the winds were making it difficult for her to secure panels, but he said that
there was no other conversation about any incident or injury.
Reed saw Dr. Yelvington for her shoulder injury on December 1 and again on
December 12. Both office notes state in part that “[t]his is a new problem. The current
episode started 1 to 4 weeks ago.” Reed testified that she told Dr. Yelvington that she had
hurt herself at work, and she did not know where the time frame in the notes came
from. The December 1 note does not address how Reed hurt herself, but the December
12 note recounts the wind-blown-panel incident. Dr. Yelvington ordered an MRI and
recommended steroid injections and physical therapy for bursitis and “AC joint
arthritis.” Reed subsequently saw Dr. Kirk Reynolds, whose notes recount the incident on
November 18 and that Reed’s pain worsened several days later. Dr. Reynolds
recommended an injection and physical therapy for a rotator-cuff strain. Reed said that a
doctor had told her that fluid was building up in her arm and that this explained why her
shoulder did not hurt immediately. She testified that she had never had another shoulder
injury.
The ALJ found that Reed had sustained a compensable injury and was entitled to
temporary total-disability benefits and reasonably necessary medical treatment. The
Commission affirmed and adopted the decision of the ALJ.
3 When reviewing a decision of the Arkansas Workers’ Compensation Commission,
this court views the evidence and all reasonable inferences deducible therefrom in the light
most favorable to the findings of the Commission. Pafford Med. Billing Servs., Inc. v. Smith,
2011 Ark. App. 180, 381 S.W.3d 921. We 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 is not whether this court might have reached a different result
from the Commission. Lexicon Holding Co. v. Howard, 2015 Ark. App. 292, 462 S.W.3d
696. If reasonable minds could have reached the Commission’s result, then we
affirm. Id. Questions regarding the credibility of witnesses and the weight to be given their
testimony are within the exclusive province of the Commission. Pafford, supra.
To prove the occurrence of a specific-incident compensable injury, the claimant
must establish by a preponderance of the evidence (1) that an injury occurred arising out of
and in the scope of employment; (2) that the injury caused internal or external harm to the
body that required medical services or resulted in disability or death; (3) that the injury is
established by medical evidence supported by objective findings; and (4) that the injury was
caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code
Ann. § 11-9-102(4) (Repl. 2012).
Appellants argue that substantial evidence does not support the Commission’s finding
that Reed met her burden of proving that her injuries arose from the alleged work-related
incident. They note that the testimony of an interested party is always considered to be
controverted, Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000), and argue that
4 the only evidence that the alleged incident even occurred is Reed’s self-serving testimony.
Appellants argue that Reed only reported having shoulder pain three days later after she was
told she was being laid off. They point out that neither the emergency-room records nor
the records from Reed’s first visit to Dr. Yelvington reflect that the injury arose from a work
incident on November 18 or that the pain began three days later.
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Cite as 2019 Ark. App. 569 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.09 11:16:54 DIVISION I -05'00' No. CV-19-540 Adobe Acrobat version: 2022.001.20169 Opinion Delivered December 4, 2019 M.A. MORTENSON COMPANIES AND ARCH INSURANCE APPEAL FROM THE ARKANSAS COMPANY/GALLAGHER BASSETT WORKERS’ COMPENSATION SERVICES, INC. COMMISSION APPELLANTS [NO. G708560]
V. AFFIRMED MAE REED APPELLEE
N. MARK KLAPPENBACH, Judge
Appellants M.A. Mortenson Companies, Arch Insurance Company, and Gallagher
Bassett Services, Inc., appeal the decision of the Arkansas Workers’ Compensation
Commission awarding benefits to appellee Mae Reed. Appellants contend that substantial
evidence does not support the Commission’s conclusion that Reed’s right shoulder injury
is compensable. We affirm.
Reed was employed by M.A. Mortenson Companies as an assembler of solar panels.
She was the only witness to testify at the hearing before the administrative law judge (ALJ),
and her deposition was also admitted into evidence. According to her testimony, she was
injured on Saturday, November 18, 2017, when a gust of wind blew a solar panel she was
holding into the air and blew her arm back over her head. She was not in pain at that time
and continued working, but she did stop the employer’s “safety man,” Joe Pena, as he drove
around checking on employees. Reed said that after she told Pena what had happened, he contacted her supervisor on his walkie-talkie, and two more employees were sent to help
Reed and her coworkers. Reed said that work ended early that day due to strong winds
and heavy rain.
The day of the incident was Reed’s last scheduled day of work before leaving on a
trip out of the country on Tuesday, November 21. She acknowledged that on Monday
before her trip, a coworker called and told her that the whole crew was being laid off;
however, Reed was not contacted by the employer. Reed said that her pain started Tuesday
night, but she did not get any medical treatment while out of the country because no one
there spoke English. Reed arrived back home in the early morning hours of November 28
and immediately went to the emergency room.
Reed testified that she told emergency-room personnel that the problems with her
shoulder were from a work-related accident; however, the emergency-room records do not
reflect this. A “triage note,” which provides that Reed was seen at 4:13 a.m., states that
“[p]atient states that about a week ago threw right [arm] up and felt like it pulled something,
now it hurts all the time since then.” The next page of the records provides the following:
“Mechanism of injury comment: About a week ago, snatched right shoulder up too quick,
hurt ever since, painful and hard to lift.” Reed was diagnosed with a strained shoulder and
told to follow up with her family physician, Dr. Dennis Yelvington.
Later that same morning, Reed went to the job site to report her injury. She said
that the employer became upset with her and wanted to know why she had not let go of
the panel when it was blown by the wind. Reed testified that they were taught to not let
go of panels because someone could be injured, and on this occasion there were people
2 working behind her. She said that she spoke to Pena, and he remembered her telling him
about the incident with the panel; however, Reed’s boss told her shortly thereafter that
Pena said he did not remember anything. A handwritten statement by Pena dated
December 4, 2017, was admitted into evidence. Pena wrote that Reed had made a
comment that the winds were making it difficult for her to secure panels, but he said that
there was no other conversation about any incident or injury.
Reed saw Dr. Yelvington for her shoulder injury on December 1 and again on
December 12. Both office notes state in part that “[t]his is a new problem. The current
episode started 1 to 4 weeks ago.” Reed testified that she told Dr. Yelvington that she had
hurt herself at work, and she did not know where the time frame in the notes came
from. The December 1 note does not address how Reed hurt herself, but the December
12 note recounts the wind-blown-panel incident. Dr. Yelvington ordered an MRI and
recommended steroid injections and physical therapy for bursitis and “AC joint
arthritis.” Reed subsequently saw Dr. Kirk Reynolds, whose notes recount the incident on
November 18 and that Reed’s pain worsened several days later. Dr. Reynolds
recommended an injection and physical therapy for a rotator-cuff strain. Reed said that a
doctor had told her that fluid was building up in her arm and that this explained why her
shoulder did not hurt immediately. She testified that she had never had another shoulder
injury.
The ALJ found that Reed had sustained a compensable injury and was entitled to
temporary total-disability benefits and reasonably necessary medical treatment. The
Commission affirmed and adopted the decision of the ALJ.
3 When reviewing a decision of the Arkansas Workers’ Compensation Commission,
this court views the evidence and all reasonable inferences deducible therefrom in the light
most favorable to the findings of the Commission. Pafford Med. Billing Servs., Inc. v. Smith,
2011 Ark. App. 180, 381 S.W.3d 921. We 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 is not whether this court might have reached a different result
from the Commission. Lexicon Holding Co. v. Howard, 2015 Ark. App. 292, 462 S.W.3d
696. If reasonable minds could have reached the Commission’s result, then we
affirm. Id. Questions regarding the credibility of witnesses and the weight to be given their
testimony are within the exclusive province of the Commission. Pafford, supra.
To prove the occurrence of a specific-incident compensable injury, the claimant
must establish by a preponderance of the evidence (1) that an injury occurred arising out of
and in the scope of employment; (2) that the injury caused internal or external harm to the
body that required medical services or resulted in disability or death; (3) that the injury is
established by medical evidence supported by objective findings; and (4) that the injury was
caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code
Ann. § 11-9-102(4) (Repl. 2012).
Appellants argue that substantial evidence does not support the Commission’s finding
that Reed met her burden of proving that her injuries arose from the alleged work-related
incident. They note that the testimony of an interested party is always considered to be
controverted, Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000), and argue that
4 the only evidence that the alleged incident even occurred is Reed’s self-serving testimony.
Appellants argue that Reed only reported having shoulder pain three days later after she was
told she was being laid off. They point out that neither the emergency-room records nor
the records from Reed’s first visit to Dr. Yelvington reflect that the injury arose from a work
incident on November 18 or that the pain began three days later.
Reed argues that her account of the events has not changed even though a report
that her pain began earlier would be favorable to her position. She contends that even
though the incident did not immediately cause her pain, she considered it significant enough
to report it. She further notes that she visited the emergency room in the middle of the
night upon returning from her international trip and reported her injury to the employer
that same day.
We agree with Reed that the Commission accepted her testimony as credible and
that its decision should be affirmed. It is the Commission, not this court, that gets to resolve
contradictions, determine the credibility of witnesses, and weigh the evidence. Marten
Transp., Ltd. v. Morgan, 2017 Ark. App. 608, 532 S.W.3d 139. In Pafford, supra, the claimant
testified that she did not report the incident the day it occurred or seek immediate medical
treatment because she did not think it was “any big deal” initially and thought that she had
only strained a muscle. The employer argued that the only evidence with regard to the
incident came from the claimant’s “vague and uncorroborated” testimony. In affirming, we
held that the claimant’s credibility was exclusively for the ALJ and the Commission to
decide, and they had found her to be “an extremely credible witness.” As in Pafford, Reed’s
failure to immediately report an injury or provide corroboration regarding the incident is
5 not fatal to her claim because the ALJ and the Commission apparently found her to be a
credible witness.
While the emergency-room records do not reflect that Reed reported her injury
being work related, Reed testified that she did inform hospital personnel, as well as Dr.
Yelvington, of this fact. The fact that Dr. Yelvington’s notes from the first visit do not state
that the injury was work related is immaterial because those notes do not include any
remarks regarding how the injury occurred. Furthermore, we agree with Reed’s suggestion
that the notation by Dr. Yelvington from both office visits that Reed’s pain began “1 to 4
weeks ago” is more likely a time frame chosen by the doctor than reported by Reed. The
matter of Reed’s credibility was exclusively for the ALJ and the Commission to decide. We
hold that substantial evidence supports the decision.
Affirmed.
ABRAMSON and GLADWIN, JJ., agree.
Dover Dixon Horne PLLC, by: Joseph H. Purvis and Monte D. Estes, for appellants.
The Law Office of Furonda Brasfield, PLLC, by: Furonda Brasfield, for appellee.