Glenn Carter v. Gea North America,, Inc.

                                 Cite as 2023 Ark. App. 134
                    ARKANSAS 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,


                                              2
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


                                              3
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.




                                               4
       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


                                              5
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

                                                6
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


                                             7
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


                                              8
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.




                                                9