Foxx v. Bill's Superfoods, Inc.

Cite as 2017 Ark. App. 551
ARKANSAS COURT OF APPEALS
DIVISION I
CV-17-38
No.
OPINION DELIVERED: OCTOBER 25, 2017
HAROLD L. FOXX
APPELLANT APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G408922]
BILL'S SUPERFOODS, INC.
APPELLEE AFFIRMED
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
Cite as 2017 Ark. App. 551
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
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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.
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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 compensable neck or back injury. The Commission stated,
The evidence before the Commission does not demonstrate that the claimant
injured his neck or back when he slipped and fell on May 23, 2013. Dr. Brenza
examined the claimant’s back on May 29, 2013 and noted “ttp,” viz., “tenderness to
palpation” over the claimant’s lumbar spine. “Tenderness” is not an objective
medical finding establishing an injury. See Rodriguez v. M. McDaniel Co., Inc., 98 Ark.
App. 138, 252 S.W.3d 146 (2007). The claimant continued to follow up with Dr.
Brenza for low back pain, which pain the claimant admitted had been present since
1979.
An MRI of the claimant’s cervical spine in August 2014 showed “Severe
multilevel degenerative disc disease.” The record does not show that the
degeneration reported in the claimant’s cervical spine was causally related to the May
2013 injury to the claimant’s right leg and groin. The claimant signed a Form AR-
C, Claim for Compensation, in November 2014 and reported that he had injured
his neck and back on May 23, 2013. In workers’ compensation cases, the
Commission functions as the trier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297,
757 S.W.2d 569 (1988). The determination of the credibility and weight to be given
a witness’s testimony is within the sole province of the Commission. Murphy v.
Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007). In the present matter, the
record does not corroborate the claimant’s assertion that he injured his neck and back
on May 23, 2013. The Full Commission finds that the claimant was not a credible
witness.
Dr. Abraham reported in December 2014 that a lumbar MRI showed bulging
and post-operative changes. Nevertheless, the Full Commission notes that similar
abnormalities were reported in a December 2011 MRI, before the accidental injury
occurring May 23, 2013. Dr. Abraham filled out a questionnaire and opined that the
claimant had injured his cervical spine and lumbar spine on May 23, 2013. It is within
the Commission’s province to weigh all of the medical evidence and to determine
what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d
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151 (1999). The record does not corroborate Dr. Abraham’s opinion in the present
matter, stated in December 2014, that the claimant injured his cervical and lumbar
spine on May 23, 2013. Dr. Abraham’s opinion regarding causation is not supported
by the evidence and is entitled to minimal evidentiary weight. Nor does the record
show that the abnormalities reported on the August 19, 2015 cervical and lumbar
MRI were causally related to the May 23, 2013 compensable injury to the claimant’s
right leg and groin.
Foxx filed a timely notice of appeal, and this appeal followed.
I. Additional Evidence
Arkansas Code Annotated section 11-9-705(c)(1)(B) (Repl. 2012) provides that each
party shall present all evidence at the initial hearing. And Haygood v. Belcher, 5 Ark. App.
127, 133, 633 S.W.2d 391, 394 (1982), sets forth the prerequisites for allowing submission
of newly discovered evidence: (1) Is the evidence relevant? (2) Is it cumulative? (3) Would
it change the result? (4) Was the movant diligent? The Commission has broad discretion
with reference to the admission of evidence, and its decision will not be reversed absent a
showing of abuse of discretion. Coleman v. Pro Transp., Inc., 97 Ark. App. 338, 249 S.W.3d
149 (2007).
Foxx argues that the Commission erred by failing to admit additional evidence. He
contends that after the appeal, but before the date the Commission’s opinion was issued, he
was able to secure an MRI and a CT scan of his right hip. He contends that the medical
records generated six days after the injury show a right-hip injury with a history of a fall on
ice in a freezer on May 23, 2013. He argues that “it is historically certain that lower back
issues commonly involve hip and leg symptoms.”
Foxx contends that he continued to experience symptoms in both his lower back
and right hip and in December 2014 he was “finally allowed to be evaluated with an MRI
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of his lower back.” The report recognized Foxx’s preexisting lower-back surgery, but
“revealed that post-operative changes were present.” He argues that, despite his complaints
of pain in the right hip and groin dating back to the time of the initial injury, the need for
cervical surgery overshadowed the need for treatment to other body parts, so no further
evaluation was immediately performed on his right hip. It was not until June 20, 2016, that
he was first able to obtain a thorough evaluation of his right-hip condition through
diagnostic testing. He argues that the Commission has discretion under the statute to
consider additional evidence, even though medical evidence should be submitted no less
than seven days before the hearing. See Ark. Code Ann. § 11-9-705(c)(3).
Foxx argues that Bill’s claimed that the new report was not relevant because it
involved Foxx’s right hip rather than his neck or lower back. Foxx contends that many
lower-back claims involve foot, leg, and hip symptoms and may even find their genesis as a
complaint of leg pain. Foxx contends, “Therefore, what the appellant and some of his
physicians apparently believed was some form of a lower-back problem was later identified
as an objective hip problem.” He argues that because this information “did not become
apparent” until it was too late, he has no remedy. He maintains that the purpose of the
workers’-compensation statutes is to pay reasonable and necessary medical expenses, Ark.
Code Ann. § 11-9-101, and that it would be appropriate “to avoid requiring the appellant
to accurately self-diagnose his condition and distinguish between a lower back or hip
condition.” He asks that the additional medical report be admitted; alternatively, he asks
that the case be remanded for consideration of a claim for additional benefits for the admitted
right-hip injury.
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Bill’s contends that Foxx has submitted no valid reason why the materials should be
allowed into the record. Bill’s agrees that the evidence is not cumulative but claims that the
other three requirements under Haygood, supra, have not been met. First, they are irrelevant
because the issues litigated were compensability of alleged back and neck issues. The
proffered medical record shows that Dr. Swymn is recommending a right-hip replacement,
and Bill’s contends that treatment for the right hip was never at issue. Bill’s also argues that
the result of the Commission’s decision would not change based on the proffered evidence
because there was no finding regarding hip compensability or treatment. Finally, Bill’s
claims that Foxx was not diligent in the generation of the report.
Bill’s cites cases holding that the absence of evidence establishing that the moving
party was diligent is enough to reject requests for introduction of additional evidence. See
St. Joseph’s Mercy Med. Ctr. v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45; Wayne Smith
Trucking v. McWilliams, 2011 Ark. App. 414, 384 S.W.3d 561. We are persuaded that the
Commission did not abuse its discretion in denying Foxx’s motion because Foxx did not
obtain the examination and resulting report until several months after the ALJ had denied
his claims.
II. Compensability
The standard of review in workers’-compensation cases is well settled. On appeal,
this court views the evidence in the light most favorable to the Commission’s decision and
affirms the decision if it is supported by substantial evidence. Schall v. Univ. of Ark. for Med.
Scis., 2017 Ark. App. 50, at 2, 510 S.W.3d 302, 303. Substantial evidence exists if reasonable
minds could reach the Commission’s conclusion. Id. The issue is not whether the appellate
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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. 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.
Foxx argues that the Commission erred by failing to determine that he sustained
compensable neck and back injuries. Foxx contends that the Commission totally discounted
Dr. Robert Abraham’s opinion that Foxx’s cervical and lumbar injuries were objective and
were the result of his May 23, 2013 accident. The Commission stated that these opinions
were not supported by the evidence and were entitled to minimal evidentiary weight. Foxx
contends that “there is no sufficient explanation for this conclusion.” He argues that “many
cervical problems begin with similar complaints of pain in the shoulder area.” The MRI
report of August 2, 2014, contains a history of a fall one year prior with neck and shoulder
pain. It also shows objective problems at two different levels of the cervical spine. The
medical notes indicate that Foxx presented with neck pain “caused by a fall that occurred
in May 2013.” On December 15, 2014, Dr. Abraham indicated that the objective cervical
problems (herniation at three cervical levels, as well as spinal-cord impingement) resulted
from the May 23, 2013 work accident.
Foxx argues that the evidence is that he reported symptoms related to his back almost
immediately after the accident. On May 29, 2013, the medical notes show that he
complained of pain in his lower back, hip, and knee. He argues that each of these symptoms
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can be evidence of a lower-back injury. He also argues that he was not having difficulties
performing his work duties before the May 23, 2013 accident and that no credible evidence
suggests that. Dr. Abraham stated that there were postoperative changes and other objective
problems after an MRI of the lumbar spine. On December 15, 2014, Dr. Abraham opined
that the May 23, 2013 accident resulted in a lumbar injury with positive objective findings.
Foxx points to the August 26, 2015 medical notes of Dr. Abraham that show severe lower-
back pain with radiation into the lower-right extremity and groin, and a constant burning
sensation. The corresponding MRI revealed a recurrent disc herniation with severe
effacement of the right lateral recess.
Foxx argues that even if he had some preexisting lumbar issues, he could not have
worked as a stocker carrying heavy frozen food with the injuries reflected in the record. He
argues that the medical notes from doctor visits before May 23, 2013, show no evidence of
pain radiation or other neurologic-type symptoms. He claims that the notes following the
May 23, 2013 accident reveal a lower-back condition that becomes progressively worse
with burning and radiating pain. Foxx contends that he was recommended for physical
therapy and that the medical note of August 5, 2013, shows a progression of the lumbar
radiation into his hamstring. He argues that the progression was shown to be objective by
MRIs showing postoperative changes and herniations. He argues that there is no proof that
the lumbar problems he had before the May 23, 2013 accident included any “significant
post-operative changes.” Dr. Abraham opined that the postoperative changes were caused
by the May 2013 accident, and Foxx argues that this opinion is consistent with the record.
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Thus, he claims that the Commission arbitrarily disregarded Dr. Abraham’s opinion. See
Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000).
Foxx argues that even though he had some prior lumbar issues, they did not prevent
him from performing his job duties. After the injury, his condition became significantly
worse so that his treatment was altered to include physical therapy; pain radiating into his
lower leg, and postoperative changes in his lumbar spine were diagnosed. He asserts that
these factors would lead a fair-minded person to conclude that the May 2013 work accident
caused additional lumbar problems or aggravated the preexisting lumbar problems so that
an objective spinal injury was present.
Bill’s contends that substantial evidence supports the Commission’s decision that
Foxx failed to prove that he sustained a compensable neck or back injury. We agree. In
Arkansas workers’-compensation law, a compensable injury includes accidental injuries that
cause physical harm requiring medical services when they occur in the course of
employment. Ark. Code Ann. § 11-9-102(4)(A)(i). Compensable injuries must be
established by objective findings, Ark. Code Ann. § 11-9-102(4)(D), and “objective
findings” are those findings that cannot come under the voluntary control of the patient.
Ark. Code Ann. § 11-9-102(16)(A)(i). Furthermore, complaints of pain and muscle
tenderness are not considered objective findings under the statute. Pafford Med. Billing Servs.,
Inc. v. Smith, 2011 Ark. App. 180, at 7–8, 381 S.W.3d 921, 926.
Foxx testified that he had prior workers’-compensation claims and that he knew to
report an injury. Wally Orr testified that Foxx reported that he had hurt his groin and leg,
that he did not report an injury to his neck or back, and that Orr knew nothing about the
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claimed injuries until November 2014 when Foxx filed a Form C with the Commission.
Orr testified that Foxx worked at Bill’s until October 2014, and Orr had regular interaction
with Foxx. He said that Foxx’s job performance never changed and that no modifications
were made to his job. Foxx admitted that he did not disclose the alleged back and neck
injuries on his claim for benefits. There was also a discrepancy in Foxx’s deposition
testimony and hearing testimony regarding the onset of his neck pain. Foxx is on Social
Security disability because of his back issues. Foxx received continuous treatment for his
lower back before the May 23, 2013 incident. Foxx did not have any treatment for cervical
issues until an MRI was done on August 2, 2014. He told Dr. Abraham that his neck
problems started over the past six months when he was examined on October 6, 2014,
which does not comport with an injury in May 2013. Foxx never reported neck injuries
to his employer even though he continued to work until October 2014.
Accordingly, substantial evidence supports the Commission’s decision.
Affirmed.
HARRISON and KLAPPENBACH, JJ., agree.
Orr Willhite, PLC, by: M. Scott Willhite, for appellant.
Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellees.
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