Gladden v. Georgia Pacific Corp.

ROBERT J. GLADWIN, Judge,

dissenting.

I would affirm the Commission because there is substantial evidence to support the finding that appellant failed to prove by a preponderance of the evidence that he sustained a compensable, left-shoulder injury arising out of and in the course of his employment on December 12, 2007. As a result of this finding, it is unnecessary to determine or address the issue of aggravation to appellant’s left shoulder. .

The parties agreed that appellant sustained a compensable neck injury arising out of the accident on December 12, 2007, but litigated whether appellant sustained compensable injuries to his right and left shoulders. The Commission, which adopted the ALJ’s findings, found that appellant did not prove that he suffered a left-shoulder injury on December 12, 2007.

On the day following the accident, appellant reported to the Dallas County Medical Center. The Center’s reports show that appellant reported pain to his right shoulder and neck. The report makes no mention of a left-shoulder injury. Following this visit, appellant received treatment for his right shoulder from Dr. Payne, Dr. Pennington, and Dr. Schock. On May 1, 2008, Dr. Schock found that appellant did not have a shoulder injury. Appellant was ultimately treated by Dr. Lytle. Dr. Ly-tle’s report from December 11, 2008, stated that appellant “is a 44-year-old man who complains of bilateral shoulder pain, the left side is worse.” Surgery was performed on appellant’s left shoulder on January 29, 2009. Appellant 18testified under oath that he had no previous problems with his shoulder, but his medical records showed otherwise.

Appellant must show proof by a preponderance of evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Ark.Code Ann. § 11 — 9—102(4)(A)(i) (4) (Supp.2009). It is the exclusive function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Murphy v. Forsgren, Inc., 99 Ark.App. 223, 258 S.W.3d 794 (2007). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial evidence standard of review requires the court to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).

The facts that (1) appellant did not report a left-shoulder injury the day after the accident; (2) Dr. Schock found that he had no shoulder injury on May 1, 2008; and (3) appellant was not truthful about previous treatment to his shoulder, support the finding that he did not suffer a compensable left-shoulder injury on December 17, 2007. This finding of fact makes it unnecessary to determine if appellant aggravated his shoulder on that day. Logic compels us to conclude that if appellant did not injure his left shoulder that day, he also did not aggravate it. I would affirm.

HENRY, J., joins.