Mooney v. AT & T

378 S.W.3d 162, 2010 Ark. App. 600, 2010 Ark. App. LEXIS 641
CourtCourt of Appeals of Arkansas
DecidedSeptember 15, 2010
DocketNo. CA 10-51
StatusPublished
Cited by7 cases

This text of 378 S.W.3d 162 (Mooney v. AT & T) 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
Mooney v. AT & T, 378 S.W.3d 162, 2010 Ark. App. 600, 2010 Ark. App. LEXIS 641 (Ark. Ct. App. 2010).

Opinion

RAYMOND R. ABRAMSON, Judge.

1, Homer Mooney claimed that he sustained either a specific-incident or gradual-onset injury to his back during his employment with AT & T. He sought workers’ compensation benefits for his alleged injury. The Administrative Law Judge denied compensability. The Workers’ Compensation Commission affirmed and adopted the ALJ’s opinion. Mooney now appeals.

I.

Mooney has a long history of back problems. He first injured his back when he was in the Army in 1973. In 1987, he received a 10% disability rating for this injury. He continued to have back problems over the years. By 2000, his disability rating had increased to 60%. From the time he was injured, Mooney frequently sought treatment for his back problems, including just before he began working at AT & T in the summer of 2001.

| gMooney began working at AT & T as a supply attendant in August 2001. He would load various items and boxes onto a truck and deliver them to locations around the state. There was some initial confusion amongst the parties about when Mooney’s alleged injury occurred. It appears from the record that the parties ultimately settled on November 27 or 28, 2005 as the injury date. It was around this time that Mooney called his supervisor, Russell Han-nahs, claiming that he had injured his back. Mooney was off work and receiving short-term disability benefits from December 4, 2005 until February 25, 2006. He then returned to work, with restrictions, until September 24, 2006. At that point, AT & T let him go because it was no longer able to provide restricted work. Mooney then again went on short-term disability until June 2, 2007. He filed this workers’ compensation claim in March 2007.

II.

In deciding whether substantial evidence supports the Commission’s decision, this Court views the evidence (and the inferences deducible therefrom) in the light most favorable to the Commission’s findings. Walker v. Cooper Automotive, 104 Ark.App. 175,176, 289 S.W.3d 184, 186 (2008). We affirm if reasonable minds could reach the Commission’s conclusion, always remembering that weighing the evidence and making credibility determinations are within the Commission’s province, not ours. Walker, 104 Ark.App. at 176-77, 289 S.W.3d at 186. When the Commission, as it did here, affirms and adopts the ALJ’s opinion, we consider both the ALJ’s decision and the Commission’s majority opinion. Fayetteville School Dist. v. Kunzelman, 93 Ark.App. 160, 162, 217 S.W.3d 149, 151 (2005).

lsTo prove that he suffered a com-pensable specific-incident injury, Mooney had to show “(1) That the injury arose out of and occurred in the course of the employment; (2) That the injury was caused by a specific incident; (3) That the injury is identifiable by time and place of occurrence; (4) That the injury caused internal or external physical harm to [his] body; [and] (5) That the injury required medical services or resulted in disability.” Hargis Transport v. Chesser, 87 Ark.App. 301, 310, 190 S.W.3d 309, 316 (2004) (citing Ark.Code Ann. § ll-9-102(4)(A)(i)). In addition, Mooney had to establish his injury with “medical evidence supported by objective findings.” Ark.Code Ann. § 11-9-102(4)(D) (Supp.2009). “[Objective medical evidence is necessary to establish the existence and extent of an injury, but it is not essential to establish the causal relationship between the injury and the job.” Wal-Mart Stores, Inc. v. Leach, 74 Ark.App. 231, 284, 48 S.W.3d 540, 542 (2001).

The requirements for proving a compensable gradual-onset injury are similar. As with specific-incident injuries, Mooney had to provide medical evidence supported by objective findings establishing his injury. Ark.Code Ann. § 11 — 9— 102(4)(D). He also had to prove that “(1) the injury arose out of and in the course of his ... employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment.” Wal-Mart Stores, Inc. v. Leach, 74 Ark.App. at 234, 48 S.W.3d at 542.

III.

I/The ALJ denied Mooney’s claim on two primary bases. First, the ALJ found that Mooney failed to provide medical evidence supported by objective findings establishing either a specific-incident or gradual-onset injury. And second, the ALJ found that Mooney failed to prove that he was injured during the course of his employment at AT & T — a requirement for proving both specific-incident and gradual-onset injuries. We discuss each of these bases in turn.

Objective Medical Findings

Mooney points to the notations that he was experiencing muscle spasms following his alleged November 2005 injury as objective medical proof of his injury. On this point, the ALJ made an error: he overlooked the finding in the November 29, 2005 progress report from the V.A. noting that Mooney was experiencing muscle spasms in his lower back. The ALJ’s opinion incorrectly states that the first notation of muscle spasms after Mooney’s alleged injury was not recorded in the medical records until January 2007, when Dr. Charles Schultz noted that Mooney was experiencing muscle spasms. This error, however, is of no consequence.

A finding of muscle spasms can fulfill the statutory objective-findings requirement. Wal-Mart Stores, Inc. v. Sands, 80 Ark.App. 51, 55, 91 S.W.3d 93, 96 (2002). But here, the record shows that Mooney had been experiencing muscle spasms for years. In May 2001, about three months before Mooney started work at AT & T, Mooney presented to Dr. Schultz complaining of persistent back pain that registered nine out of ten on the pain scale. In his |5report, Dr. Schultz noted that Mooney experienced muscle spasms in his lower back during the exam. Mooney saw Dr. Schultz again in July 2001, just a couple of weeks before he began working at AT & T. At that visit, Mooney said his back pain registered six out of ten on the pain scale with exacer-bations flaring to eight out of ten on the pain scale. Dr. Schultz again noted that Mooney experienced muscle spasms during the examination. Because Mooney was experiencing muscle spasms in his back since before he started work at AT & T, the ALJ concluded that the muscle spasms findings after the alleged injury in both the V.A. and Dr. Schultz’s notes did not satisfy the objective-findings requirement.

Like the 2005 and 2007 muscle spasms findings, Dr. Schultz’s January 2007 finding that Mooney had “evidence of a left L5-S1 radiculopathy on EMG” was not new. Dr. Schultz noted, in his May 2001 report, that Mooney was experiencing “[l]ow back pain with radicular pain into the lower extremities with paresthesias.” The ALJ therefore found that Dr. Schultz’s 2007 finding about “left L5-S1 radiculopathy” did not satisfy the objective-medical-findings requirement because Mooney had been experiencing radicular pain in his lower back and lower extremities since before his employment at AT & T.

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Cite This Page — Counsel Stack

Bluebook (online)
378 S.W.3d 162, 2010 Ark. App. 600, 2010 Ark. App. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mooney-v-at-t-arkctapp-2010.