Glenn Carter v. Gea North America,, Inc. , 2023 Ark. App. 134 ( 2023 )

Cite as 2023 Ark. App. 134ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-22-320
Opinion Delivered March 8, 2023
GLENN CARTER
APPELLANT
APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION
GEA NORTH AMERICA, INC.; AND [NO. H010320]
SENTRY INSURANCE COMPANY
INSURANCE CARRIER/TPA
APPELLEES AFFIRMED
RITA W. GRUBER, Judge
Glenn Carter appeals from a decision of the Arkansas Worker’s Compensation
Commission (Commission) finding that Carter failed to prove by a preponderance of the
evidence that he suffered a compensable injury to his low back on November 24, 2020, and
denying his claim for medical treatment and temporary total-disability (TTD) benefits.
Appellees are Carter’s employer, GEA North America, Inc. (GEA), and Sentry Insurance
Company Insurance Carrier/TPA. The only issue on appeal is whether the evidence is
sufficient to support the Commission’s decision. We affirm.
On September 8, 2021, a hearing was held before the administrative law judge (ALJ)
to litigate (1) the compensability of Carter’s lumbar spine condition; (2) whether Carter was
entitled to reasonable and necessary medical treatment; (3) whether Carter was entitled to
TTD; and (4) attorney’s fees. The parties had previously stipulated that (1) the Commission
had jurisdiction of the claim; (2) on November 24, 2020, the relationship of employee-
employer-carrier existed among the parties; and (3) the compensation rates were $711 weekly
for TTD benefits and $533 for permanent partial-disability benefits.
On November 24, 2020, Carter, a traveling service technician for GEA, was rear-
ended in his company truck. Carter refused medical treatment at the scene, the airbags did
not deploy, his truck remained operable, and Carter drove it home.
The next day, Carter worked his regular schedule, which involved driving to
Fayetteville. While in Fayetteville, Carter sought treatment at an emergency room (ER) for
complaints of left shoulder pain along with some right shoulder pain. He specifically denied
any lower-back pain. During the exam, his treating physician noted a complete absence of
tenderness or other symptoms with respect to his back (“negative for arthralgia, back pain,
or myalgia”), documenting that there were “no other injuries or complaints” beyond Carter’s
shoulder. The ER records also reflected “no spinal tenderness to palpation.” The x-ray results
indicated “degenerative changes of the left shoulder with no evidence of acute fracture or
traumatic malalignment.”
Carter continued working until December 5, 2020, when he testified that he woke
up and his left leg was numb. Carter was seen in an ER that day, with an admissions diagnosis
of “dorsalgia, unspecified” and a final principal diagnosis of lumbago with sciatica,
unspecified site, as well as “other muscle spasm.” His chief complaint was lower-back pain or
“discomfort” radiating down into both of his legs, with some occasional numbness. His exam
reflected “positive for back pain and myalgias” and negative for “arthralgias, joint swelling,
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neck pain and neck stiffness,” with “normal range of motion,” and generally “no swelling or
signs of injury.” Carter also exhibited “tenderness and spasm” in his lumbar back. The
findings of Carter’s lumbar spine x-ray were as follows:
the lumbar spine demonstrates no acute compression deformity. The T12-L1
disc is severely narrowed with endplate sclerosis and spurring. The L4-5 disc is
severely narrowed. There is slight anterolisthesis of L3 on L4. No acute
compression deformity is seen. There is severe apophyseal joint degenerative
hypertrophy. There is mild S-shaped curvature of the thoracolumbar spine.
The impression was “severe degenerative disease with no acute osseous abnormality.” Carter
was diagnosed with arthritis in his lumbar spine and was told to continue taking medications
and use a heating pad as needed and, if there was no improvement, to consider a follow up
with an MRI. Carter responded that the pain was “not bad,” and he was “not interested in
surgery” at that time.
On December 15, 2020, Carter was treated at Mercy Clinic Ortho and Sports by Dr.
Dominic Jacobelli. An x-ray reflected “severe degenerative disease with no acute osseous
abnormality.” Dr. Jacobelli prescribed Carter oral medication and referred him for physical
therapy (PT), which Carter received on December 21, 23, 28, and 30, 2020, and January 4,
6, 12, 14, 19, and 21, 2021. At the December 30 PT visit, Carter reported that “he has been
doing fine. He has not dealt with too much soreness, pain, or stiffness.” Carter was treated
by Dr. Jacobelli again on January 11, 2021, for complaints of low-back pain. Dr. Jacobelli’s
records reflect that previous x-rays and a CT scan showed no acute fracture. Those records
also reflect that Carter reported having pain in his lower back prior to the “injury” and that
Dr. Jacobelli “explained to Carter in detail that he does not have a [sic] injury.” On February
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3, 2021, Carter received an MRI, which reflected a number of degenerative issues, none
acute. Dr. Jacobelli referred Carter to a pain clinic for lumbar injections.
On February 11, 2021, Carter was seen by Dr. David Benson at Mercy Pain Clinic in
Rogers. On February 19, Carter treated with a chiropractor. On February 22, Carter received
epidural injections for pain management. On April 14, Carter was seen by Dr. Christopher
Carter, his primary care physician, for a follow-up visit regarding “chronic low back pain.”
Carter received TTD benefits and medical benefits from GEA through March 22,
2021. GEA then denied further benefits, and Carter filed a claim with his group health
insurance, CIGNA.
On June 15, 2021, Dr. Charles Jones, a neurosurgeon, performed an L3-L4-L5
posterolateral spinal fusion, an L3-4 bilateral decompressive laminectomy with partial medial
facetectomies, an L4-5 bilateral decompressive laminectomy with partial medial
facetectomies, and removal of benign intracanal extradural mass (facet joint synovial cyst) on
Carter. Dr. Jones noted postoperatively that Carter had “severe degeneration at L3-5,” and
he “did not see any acute trauma,” but “severe degeneration . . . causing stenosis in
conjunction with the spondylolisthesis at L4-5.”
That surgery was paid for by CIGNA. CIGNA had initially declined to pay for the
surgery due to its position that the surgery should be covered by GEA’s workers’-
compensation provider. However, after consulting with Dr. Jones, CIGNA changed its
position and covered the surgery.
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Carter testified that he has a history of low-back pain; he began receiving chiropractic
treatment at Hines Chiropractic Clinic in Rogers in 1983; he was continually treated by a
chiropractor every three to four months; and he was fairly certain that he was treated for low-
back pain sometime in 2020. Carter described the previous pain as more of a muscle spasm,
an aching kind of pain; whereas after the accident, it has been more of a specific grinding,
burning pain that occurred over his right hip bone and that he was experiencing low-back
pain that radiated into his right leg, all of which was new. However, Carter’s testimony
confirmed that he had radiculopathy in both legs, spasms, and sharp low-back pain before
the accident, and his previous pain levels were higher on the pain scale.
On September 29, 2021, the ALJ issued an opinion determining that Carter had not
proved by a preponderance of the evidence that he had sustained a compensable injury to
his lumbar spine due to a work-related injury sustained on November 24, 2020, or an
exacerbation of a preexisting condition. Therefore, he was not entitled to additional TTD or
medical benefits. As a result, all other issues and associated benefits with his claim were
rendered moot and were not discussed in the opinion. On October 5, 2021, Carter appealed
to the Full Commission, and on January 25, 2022, the Full Commission filed an opinion
affirming and adopting the ALJ’s decision. This timely appeal followed.
When the Commission affirms and adopts the ALJ’s opinion, thereby making the
findings and conclusions of the ALJ the Commission’s findings and conclusions, we consider
both the ALJ’s opinion and the Commission’s opinion in our review. Watson v. Highland
Pellets, LLC, 2022 Ark. App. 132, at 5, 643 S.W.3d 267, 270. When the Commission denies
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benefits because the claimant has failed to meet his or her burden of proof, the substantial-
evidence standard of review requires that we affirm if the Commission’s decision displays a
substantial basis for the denial of relief. Id. The issue is not whether the appellate court might
have reached a different result from the Commission but whether reasonable minds could
reach the result found by the Commission; if so, the appellate court must affirm. Id.Credibility questions and the weight to be given to witness testimony are within the
Commission’s exclusive province. Id. It is also within the Commission’s province to weigh
all the medical evidence and to determine what is most credible. Id. We have long held that
the Commission’s decision to accept or reject medical opinions and how it resolves
conflicting medical evidence has the force and effect of a jury verdict. Id.An employer takes the employee as the employer finds him, and employment
circumstances that aggravate preexisting conditions are compensable. Vaughn v. Midland Sch.
Dist., 2012 Ark. App. 344, at 2. A preexisting disease or infirmity does not disqualify a claim
if the employment aggravated, accelerated, or combined with the disease or infirmity to
produce the disability for which workers’-compensation benefits are sought. Id. An
aggravation of a preexisting noncompensable condition by a compensable injury itself is
compensable. Webb v. Wal-Mart Assocs., Inc., 2018 Ark. App. 627, at 5, 567 S.W.3d 86, 90.
An aggravation is a new injury resulting from an independent incident, so it must meet the
definition of a compensable injury to establish compensability for the aggravation. Liaromatis
v. Baxter Cty. Reg’l Hosp., 95 Ark. App. 296, 299, 236 S.W.3d 524, 527 (2006). A compensable
injury must be established by medical evidence supported by objective findings, which are
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findings that cannot come under the control of the patient, such as complaints of pain or
tenderness. Ozark Nat. Food v. Pierson, 2012 Ark. App. 133, at 9, 389 S.W.3d 105, 110. As
interpreted by our appellate courts, this means that an aggravation, being a new injury, must
be evidenced by objective medical findings of a new injury to the preexisting condition.
Vaughn, 2012 Ark. App. 344, at 2. It is the injury for which appellant seeks benefits that
must be supported by objective medical findings. Liaromatis, 95 Ark. App. at 299, 236
S.W.3d at 527.
In order to prove a compensable injury as a result of a specific incident that is
identifiable by time and place of occurrence, a claimant must establish the following by a
preponderance of the evidence: (1) an injury arising out of and in the course of employment;
(2) that the injury caused internal or external harm to the body which required medical
services or resulted in disability or death; (3) medical evidence supported by objective
findings, as defined in Ark. Code Ann. § 11-9-102(16) (Repl. 2012), establishing the injury;
and (4) that the injury was caused by a specific incident identifiable by time and place of
occurrence. Odd Jobs & More v. Reid, 2011 Ark. App. 450, at 4–5, 384 S.W.3d 630, 632
(citing Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2009)).
On appeal, Carter contends that the ALJ erred in finding that he failed to prove by
preponderance of the evidence that he suffered either a compensable injury or an
exacerbation of a preexisting injury to his low back on November 24, 2020. He argues that
the objective medical evidence more than supported his burden of proof because, while it
was “no secret” that he received chiropractic care for low-back pain “for decades,” he had
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not been to the chiropractor since 2018. Carter further argues that his claim should not have
been denied because prior to the accident, he had never required treatment from a
neurosurgeon or surgery, and the low-back pain he experienced prior to the accident was
different from the low-back pain he experienced after it. GEA responds that Carter lacked
credibility as a witness, his low-back problems predated the accident, and he failed to provide
evidence of new objective findings of an acute injury.
We now turn to the Commission’s decision. The ALJ, after reviewing all the evidence
in the case, specifically determined that Carter had an extensive history of low-back pain,
and Carter’s testimony that his pre-accident pain was different than his post-accident pain
was contradicted by his medical records. The ALJ further relied on the fact that, while
Carter’s last visit to Hines Chiropractic Clinic was in August 2018, Carter admitted that he
received chiropractic care for his lower back from Dr. Josh Jones in 2020. The ALJ further
found that Carter’s testimony that immediately after the accident he felt like he had “been
hit in the back with a sledgehammer” was belied by the incontrovertible evidence that he
had been treated the day after the accident in an ER only for complaints of shoulder pain,
he made no complaints about back pain, and his examination was negative for back pain.
The ALJ also found relevant that Carter did not seek any further medical treatment until
December 5, after having been off work for several days due to the Thanksgiving holiday and
after having driven to Broken Bow, Oklahoma, to inspect thirteen compressors for GEA.
Carter bears the burden of proving by a preponderance of the evidence that he
suffered a compensable injury to his lower back on November 24, 2020. Here, the
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Commission credited Carter’s medical records, including statements contained within his
medical records by him, rather than his testimony. It is undisputed that Carter’s low-back
complaints predated the accident, and he presented no evidence of new objective findings
of an acute injury. His medical records reflected that he suffered from degenerative issues—
not an acute injury. Carter did not establish by medical evidence supported by objective
findings that he had sustained a new injury or an aggravation of a preexisting injury. See
Liaromatis, supra; Ozark Nat. Food, supra. Carter essentially asks us to reweigh the evidence
and credibility findings made by the Commission; however, once the Commission has made
its decision on issues of credibility, we are bound by that decision. Watson, supra. The
Commission’s denial of benefits was supported by substantial evidence, and reasonable
minds could have reached the result found by the Commission. As such, we affirm.
Affirmed.
ABRAMSON and BARRETT, JJ., agree.
Caddell Reynolds, by: Matthew J. Ketcham, for appellant.
Worley, Wood Parrish, P.A., by: Jarrod S. Parrish, for appellees.
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