Mayweather v. Mangum Contracting, Inc.

Josephine Linker Hart, Judge.

Appellant, Elmer J Mayweather, appeals from the Workers’ Compensation Commission’s decision finding that he failed to show by a preponderance of the evidence that he sustained an accidental injury arising out of and in the course of his employment with appellee, Mangum Contracting, Inc. We affirm the Commission’s decision.

Our standard of review is well-settled. On appeal, we review the evidence in the light most favorable to the Commission’s decision and affirm if the decision is supported by substantial evidence. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). Evidence is substantial if reasonable minds could reach the same conclusion. Id. When the Commission denies benefits because the claimant has failed to meet his burden of proof, we affirm the Commission’s decision if the decision displays a substantial basis for the denial of relief. Id.

To be compensable, an accidental injury must arise out of and in the course of employment. Ark. Code Ann. § ll-9-102(4)(A)(i) (Supp. 1999). Appellant testified that on September 4, 1998, a Friday, he sustained an injury to his back while lifting rebar and that the pain worsened on September 8, 1998, the Tuesday following Labor Day, when he entered the cab of a pickup truck at work and twisted his back. In support of appellant’s testimony, appellant’s supervisor testified about appellant reporting an injury to his back that occurred while working with rebar; however, the supervisor was unable to recall the date of appellant’s report. The Commission, discounting the supervisor’s testimony, found that appellant’s testimony was not credible and denied benefits because it concluded that his injury did not arise out of and in the course of his employment.

The Commission relied on the testimony of the company owner, who testified that while appellant reported the September 8, 1998, incident, appellant did not report an injury on September 4, 1998, and, contrary to appellant’s claim, his employees were not working with rebar that day. The owner also recalled that while reporting the September 8, 1998, incident, appellant had advised him that his back began bothering him at home on the previous Saturday. The owner also testified that appellant reported an injury on September 23, 1998, after working with rebar.

The Commission also noted that when appellant was examined by a physician on September 8, 1998, appellant failed to mention the September 4, 1998, incident in his written report of where and how the accident occurred, instead fisting September 8, 1998, as the date of the accident and writing, “Well I had a small ache started Saturday. When I got into our work truck this morning I twisted it the wrong way.” In a document dated October 8, 1998, appellant stated that the accident occurred on September 8, 1998, and wrote, “As I was getting up into the work truck I twisted my back in a manner where I injured my disk.”

The Commission further noted that in a letter dated October 16, 1998, appellant’s attending neurosurgeon reported that appellant’s injury occurred “after he had been bending and picking up stainless steel pipe, metal rods and casings all day,” and that “[sjhortly after completing this he went to climb into the truck when he felt the pop in his lower back.” The certificate of the attending neurosurgeon, dated December 18, 1998, noted that the accident occurred September 8, 1998. In a letter dated December 28, 1998, the neurosurgeon wrote that appellant “relates his pain to a work accident that occurred several weeks ago. In the process of moving a concrete finishing machine, he felt a pop and burning type pain in his low back.” In his deposition of April 21, 1999, the neurosurgeon reported that appellant twisted or wrenched his back while using a motor-driven concrete finisher and that he attributed appellant’s injury to the use of the finisher.

The Commission concluded as follows:

The evidence shows that the claimant subsequently stated that he hurt his back lifting rebar on September 4, 1998; that he twisted his back on September 8 after a small ache the previous Saturday; and that he in fact hurt his back while lifting rebar on September 23, 1998[,] rather that September 4. The claimant later said that his compensable injury arose from picking up material all day on an unspecified date, and later that the compensable injury resulted from working with a concrete finishing machine. In comparing the varied and multiple accounts of an accidental injury alleged by the claimant with the preponderance of credible evidence of record, we must find that the claimant is not credible. Therefore, we find that the claimant failed to show that he sustained an accidental injury which arose out of and in the course of his employment with the respondent-employer.

Viewing the evidence in the light most favorable to the Commission’s decision, the Commission’s assertion that appellant’s testimony is not credible is a conclusion that reasonable minds could reach. Based on this conclusion, and particularly focusing on appellant’s report that his back began hurting on Saturday, September 5, 1998, appellant failed to establish that he sustained an accidental injury that arose out of and in the course of his employment. Thus, we hold that substantial evidence supported the Commission’s denial of benefits. See Frances, supra (reversing this court and upholding the Commission’s denial of benefits where claimant reported incidences other than the accident occurring at work as the cause of his injuries).

Affirmed.

Robbins, C.J., and Jennings, Crabtree, and Meads, JJ., agree. Griffen, J„ dissents.