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Foxx v. Bill's Superfoods, Inc.

Court of Appeals of Arkansas, Division I

October 25, 2017



          Orr Willhite, PLC, by: M. Scott Willhite, for appellant.

          Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellees.

          ROBERT J. GLADWIN, Judge

         The Arkansas Workers' Compensation Commission (Commission) denied Harold L. Foxx's claim for neck and back injuries. On appeal, Foxx argues that the Commission erred by failing to admit additional evidence and by determining that the claim was not compensable. We affirm.

         Foxx worked part time for appellee Bill's Superfoods, Inc. (Bill's), when he sustained a compensable injury to his right leg and groin on May 23, 2013. When Foxx later made claims for neck and back injuries from the same accident, Bill's controverted the claims. At the hearing before the administrative law judge (ALJ), Foxx testified that he is sixty-two years old and that until 2007 he was a truck driver, but he "blew-out" his back and had been on disability for that since 2009. He said that he had three lower-back surgeries before 2013, and he began working at Bill's in 2011, stocking freezers and lifting no more than fifty to sixty pounds. He said that he had no difficulties performing his duties before May 23, 2013. On that date, he fell while pulling an ice tub out of the freezer. He said that he reported the injury to his supervisors, and he wrote in the report that he had hurt his "right leg and groin."

         He said that before May 23, 2013, he never had problems with his neck and had never had an MRI or a CT scan of it. He said that he had a partial rotator-cuff tear from a slip and fall from his truck that had occurred before the May 23 incident, and he thought the tear was the reason his neck was hurting after the incident. He said that his neck began to tighten a couple of months after the May 23, 2013 accident, but he later admitted that he had said in his deposition that his neck began to hurt a couple of weeks after the accident. He said that he never went back and told his supervisors that he had hurt his neck or back on May 23, 2013. He also said that before the May 2013 accident, he had played tennis.

         Foxx continued to work without restrictions following the May 23, 2013 fall. He said that his physical condition deteriorated until he quit working in October 2014, and he underwent a cervical MRI. He told Dr. Abraham, whom he saw on October 6, 2014, that he had "left shoulder problems that progressed into [his] neck over the last six months." Dr. Abraham suggested a cervical discectomy and fusion in Foxx's cervical area, but no surgery has been performed.

         Foxx described his previous injuries that included a lower-back injury in a 1979 traffic accident, which was work related; a workers'-compensation claim for carpal tunnel syndrome in his arms and wrists that was denied in the 1980s; and a 2004 work accident that hurt his back and resulted in three back surgeries. Foxx said that he began receiving disability benefits for his back injury in 2009, and he now receives $1200 a month. He settled his claim from the accident that involved the back surgeries for $97, 000. He said that his back was fine between 2009 and 2013.

         Foxx said that in July 2014, he and his wife were involved in an accident when an ice cream truck "t-boned" their vehicle. Foxx said that his medical bills from that accident were paid for and he also received $9000. He also admitted that he had seen Dr. Brenza on March 11, 2013, complaining of lower-back pain and right-hip pain to his groin. He had indicated to the doctor that he was an active tennis player.

         Walter Glenn Orr testified that he co-owns Bill's and supervises all locations. He said that Foxx had signed a form indicating that he had hurt his groin and leg. Foxx never came back and told him about his neck or back being hurt. Foxx worked until October 2014, and the first Orr knew about Foxx's claiming a neck injury was when Foxx filed with the Commission in November 2014.

         By an opinion filed February 19, 2016, the ALJ found that Foxx failed to prove by a preponderance of the evidence that he sustained either a low-back injury or cervical injury as a result of the May 23, 2013 work incident. Further, Foxx failed to prove by the same standard that his need for treatment associated with his low back and neck were causally related to the work incident on May 23, 2013. The ALJ acknowledged that Dr. Abraham had noted objective findings of a cervical injury, as well as objective postoperative changes in Foxx's lumbar spine which "could have been aggravated" by the May 23, 2013 accident. The ALJ found that this opinion was entirely based on Foxx's history of an event that had occurred a year and a half earlier. Further, Foxx conceded that he only complained of his groin and right leg when he filled out the incident report.

         Foxx appealed to the Commission on March 10, 2016. However, before the Commission's decision was issued, Foxx filed with the Commission a petition to consider additional evidence that he had seen a specialist on June 20, 2016, and obtained a medical report that was not available to him before the hearing. On August 19, 2016, the Commission denied Foxx's request to introduce the follow-up medical report.

         On November 22, 2016, the Commission affirmed the ALJ's finding that Foxx failed to prove that he sustained a ...

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