Sally v. Service Master

301 S.W.3d 7, 2009 Ark. App. 209, 2009 Ark. App. LEXIS 223
CourtCourt of Appeals of Arkansas
DecidedMarch 18, 2009
DocketCA 08-847
StatusPublished
Cited by13 cases

This text of 301 S.W.3d 7 (Sally v. Service Master) 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
Sally v. Service Master, 301 S.W.3d 7, 2009 Ark. App. 209, 2009 Ark. App. LEXIS 223 (Ark. Ct. App. 2009).

Opinions

KAREN R. BAKER, Judge.

| Appellant Robert Sally challenges the Workers’ Compensation Commission’s denial of benefits asserting that no substantial evidence supports the decision of the Commission reversing the administrative law judge’s findings that appellant sustained a work-related injury for which ap-pellees, employer Service Master and insurance carrier A.I.G. Claim Services, were liable. We find merit to appellant’s argument and reverse and remand for an award of benefits.

In this case, there is no dispute that appellant suffered from carpal-tunnel syndrome that was the sole cause of his disability and need for treatment. The issue to be resolved is whether appellant’s injuries are compensable because they were work related. Appellant worked as a janitor for various companies for approximately twenty years before going to |2work for appellee Service Master. The record contains no medical reports evidencing that appellant had received treatment relative to upper extremity (wrist) soreness, numbness, tingling, or swelling prior to August 2006. He began working for appellee in June 2005. He first experienced pain in his hands a year later, June 2006, corresponding with additional duties involving the use of a floor scrubber. Prior to the change in duties, appellant successfully performed his assigned job duties throughout the summer of 2006, and the regular school year of 2005 through 2006. However, during the summer of 2006, appellant’s job duties and work location changed. He was assigned to work on the floor crew, maintaining the floors at two facilities. During his eight-hour shift, appellant spent a substantial amount of time stripping floors, which included operating a motorized side-by-side scrubber, running continuously, moving cleaning liquid over the floors. To operate the machine, appellant gripped levers located at both sides of the scrubber handle, held down both levers, and maintain that grip for a minimum of twenty-five-minute intervals. The machine, which resembled a lawnmower with a two-foot pad instead of wheels, would move from side to side during this operation. Appellant would then use a large wet/dry vacuum to remove the cleaning liquid from the floors.

Appellant testified that starting in June 2006, and coinciding with the change in duties, he began to experience pain symptoms in his upper extremities, the left worse than the right. The claimant testified that the pain was in the middle of his wrists. He explained that he could not bend his left wrist, and, assuming he had sprained it, he purchased an|simmobilizing device for his left wrist from Walgreens. Despite his efforts, the pain gradually worsened until August 31, 2006 when he went to the emergency room. He was examined, treated, and diagnosed with carpal tunnel syndrome.

The medical history of the August 31, 2006, emergency room visit reflected that appellant had experienced intermittent pain which had become constant, resulting in his seeking emei-gency treatment. He received treatment during the August 31/September 1, 2006 emergency room visit, as well as a diagnosis of his complaint. Medical directives required him to remain off work the following day as well as the date of the diagnostic test. Appellant was also provided medication and prescriptions for additional medication. The administrative law judge found that “credible evidence reflects that [appellant] was unaware of the ailment ‘carpal tunnel syndrome’ prior to his August 31, 2006, visit to the emergency room ...” and that he first learned that he had carpal tunnel syndrome on that visit.

In addition, appellant testified that he notified his employer on September 1, of the diagnosis. The employer denied this and claimed that sometime in August appellant said he suffered from carpal tunnel syndrome. A nerve conduction test objectively confirmed gradual onset injuries on September 7, 2006. On September 20, 2006, he notified his employer that he was claiming a workers’ compensation injury. By October 10, 2006, the condition prevented him from working.

The administrative law judge awarded benefits. The majority of the Commission reversed and denied benefits stating that appellant “cannot prove that his injury arose out|4of Ms employment.” The Commission reasoned that appellant “never told the respondent employer when he was seeking medical attention that it was for a work-related injury.” It further justified the denial by stating that it gave more weight to the employer’s statement that appellant had told his employer in August just before school started that he had carpal tunnel rather than the .September 1 date of notice testified to by appellant.

In giving more weight to the employer’s testimony, the Commission reasoned as follows:

Uncorroborated testimony of an interested party is always considered to be controverted. This rule applies to a non-party witness whose testimony might be biased. Burnett v. Philadelphia Life Ins. Co., 81 Ark.App. 300, 101 S.W.3d 843 (2003). It is not arbitrary to choose not to credit such testimony. Id. The testimony of an interested party is taken as disputed as a matter of law whether offered on his own behalf or on the behalf of another interested party. Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989). Therefore, we find that [appellant] has failed to prove by a preponderance of the evidence that his carpal tunnel arose out of and in the course and scope of his employment.

In reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Arkansas Dep’t of Health v. Williams, 43 Ark.App. 169, 863 S.W.2d 583 (1993). Substantial evidence exists if reasonable minds could have reached the same conclusion. Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). Matters of credibility are exclusively within the Commission’s domain, id., and 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). Despite this deferential standard | .^regarding credibility issues on appellate review, the Commission must be able to clearly state the reasons for its determination of credibility, especially when that determination is contrary to the findings of the administrative law judge (AL J) who actually observed the witnesses, because the Commission is limited to reviewing the record. Patterson v. Frito Lay, Inc., 66 Ark.App. 159, 992 S.W.2d 130 (1999) (holding that Workers’ Compensation Commission’s bare statement that it had reviewed the record and determined that the claimant lacked credibility was insufficient to support such a finding, absent any identified reasons for statement or evidence to support finding, and thus Commission arbitrarily disregarded the testimony of the witnesses and reached its conclusion based on speculation and conjecture).

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Sally v. Service Master
301 S.W.3d 7 (Court of Appeals of Arkansas, 2009)

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Bluebook (online)
301 S.W.3d 7, 2009 Ark. App. 209, 2009 Ark. App. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sally-v-service-master-arkctapp-2009.