HAROLD L. FOXX APPELLANT
BILL'S SUPERFOODS, INC. APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Willhite, PLC, by: M. Scott Willhite, for appellant.
Worley, Wood & Parrish, P.A., by: Melissa Wood, for
J. GLADWIN, Judge
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.
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."
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.
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.
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.
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.
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.
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.
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.
November 22, 2016, the Commission affirmed the ALJ's
finding that Foxx failed to prove that he sustained a