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Garcia v. Jensen Construction Co.

Court of Appeals of Arkansas, Division II

September 13, 2017

GABRIEL GARCIA APPELLANT
v.
JENSEN CONSTRUCTION COMPANY and ARCH INSURANCE COMPANY APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G409589]

          McKinnon Law Firm, by: David L. Schneider, for appellant.

          One brief only.

          OPINION

          WAYMOND M. BROWN, Judge

         This is a one-brief appeal from the Arkansas Workers' Compensation Commission's (Commission) October 14, 2016 opinion reversing the February 10, 2016 opinion of the administrative law judge (ALJ) by finding that appellant failed to prove by a preponderance of the evidence that he sustained a compensable injury. Appellant's sole argument on appeal is that the Commission erred in finding that appellant failed to prove he sustained a compensable injury while acting in the course and scope of his employment. We affirm.

         On March 11, 2014, having worked for appellee for eight years, appellant was working pouring concrete in a hole when he slipped on a piece of rebar that was being used as a ladder. He fell and his feet became twisted in the rebar, but he was in a harness and that kept him from hitting the ground. He has no memory of how he got out of the hole. His coworkers raised him to the ground in a "man basket." He initially refused to go to the hospital, but was taken to Baptist Health Stuttgart four hours later by Grand Prairie Emergency Medical Services (GPEMS) after he had a seizure. He was discharged on March 13, 2014, with no brain or head injury diagnoses from Dr. Dennis Yelvington.

         Appellant was taken to another emergency room on April 11, 2014, after suffering another seizure; he had not been working for appellee at the time. A CT scan showed swelling and suggested a laceration according to Dr. Ralph Noah. Dr. Merlin Kilbury found appellant's head to be "normocephalic" and diagnosed him with grand mal seizures. On April 15, 2014, appellant was diagnosed with convulsions by Dr. James Rutter at the Internal Medicine Clinic. On May 1, 2014, Dr. Rutter stated that appellant no longer had seizures and permitted him to return to work with restrictions on May 2, 2014. Appellant continued treatment for seizures with Dr. Ornette Gaines at the Community Clinic.

         A hearing on appellant's claim was held on November 13, 2015, during which appellant and two coworkers were the sole witnesses.[1] The issues before the ALJ were compensability; reasonable and necessary benefits; appellant's entitlement to temporary-total-disability benefits from March 11, 2014, to a date yet to be determined; and controverted attorney's fees. In his February 10, 2016 opinion, the ALJ found that

2. The employment relationship existed on March 11, 2014, during which time the claimant earned an average weekly wage of $660.00, generating weekly compensation benefit rates of $440.00/$330.00, for temporary total/permanent partial disability.
3. On March 11, 2014, the claimant sustained an injury arising out of and in the course of his employment when he suffered an accidental fall and suffered a blow to the head.
4. The claimant was temporarily totally disabled as a result of the March 11, 2014, compensable injury for the period commencing March 12, 2014, through March 18, 2014, and April 11, 2014, continuing though the end of his healing period, a date to be determined.
5. The respondents shall pay all reasonable hospital and medical expenses arising out of the injury of March 11, 2014.

         Appellees filed their notice of appeal to the full Commission on February 24, 2016. The Commission filed its order on October 14, 2016, finding that appellant did not establish a compensable injury by medical evidence supported by objective findings. This timely appeal followed.

         I. Standard of Review

         In reviewing decisions from the Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission's decision and affirm if it is supported by substantial evidence.[2] Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.[3] The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision.[4] We defer to the Commission's findings of credibility and the resolution of conflicting evidence.[5]

         A compensable injury is an accidental injury causing internal or external harm that arises out of and in the course of employment.[6] A compensable injury must be established by medical evidence supported by objective findings, which are findings that cannot come under the voluntary control of the patient.[7] A claimant bears the burden of proving a compensable injury by a preponderance of the credible evidence.[8]

         Appellant's sole argument on appeal is the Commission erred in its findings that appellant failed to prove he sustained a compensable injury while acting in the course and scope of his employment. He makes several sub-arguments in support thereof, which this court addresses as follows.

         II. Credibility

         Appellant mainly argues that his "credible" testimony supports a finding that he was injured while performing employment activities, specifically that he hit his head during the fall which thereby caused the seizures. Matters of credibility are exclusively within the Commission's domain and the testimony of an interested party is always considered to be controverted.[9]

Appellant testified:
I fell when we were pouring concrete and one of the iron strings slid to one side and I fell back. After that I ...

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