Grantham v. Hornbeck Agricultural Group, LLC

Cite as 2017 Ark. App. 520

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-91

Opinion Delivered: October 4, 2017

RANDY GRANTHAM
APPELLANT
APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION
HORNBECK AGRICULTURAL GROUP, [NO. G505008]
LLC, AG-COMP SIF CLAIMS, AND
DEATH & PERMANENT TOTAL
DISABILITY TRUST FUND
APPELLEES AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Randy Grantham appeals the decision of the Arkansas Workers’

Compensation Commission (Commission) finding that he failed to establish that he

sustained a compensable back injury while working for appellee Hornbeck Agricultural

Group, LLC (Hornbeck). On appeal, Grantham argues that the Commission’s decision was

not supported by substantial evidence. We affirm.

Grantham began working for Hornbeck in July 2007, processing soybeans. He was

promoted to a general manager in 2011 and supervised three other employees. At the

hearing before the ALJ, Grantham testified that he injured his back on October 16, 2013,

while placing an auger. He described the accident as follows:

On that day, we had a soybean crush facility, which was not really designed to store
grain in, but Jon and them had it sitting idle, so we had a company in and change
Cite as 2017 Ark. App. 520

some piping so we could take grain out the side of the building. We had to put an
auger underneath a drop pipe that came down, and we were placing that auger that
morning, and I had the two Mexican boys, and we put a tarpaulin under it to catch
any splash grain that came out the sides, and then they pulled it back to where my
feet were. I just was holding it in, and it backed up, and they scooted it back a little
bit more, and I backed up a little bit more and I sat it down and when [I] set it on
the ground, something popped in my back. I do not know. I was sort of bent over
forward at the time.

. . . .

I picked up about fifty or sixty pounds when my back hurt. It was not an extreme
amount of weight. I got into a backward position when I backed my feet up, and it
was not a normal position since my hands were extended in front of me. When this
happened, my pain was about belt high when it popped, and I have still got the same
pain that started with so I do not know what it is, and it felt high in the back. I felt
pain go down my left leg and then it started getting more numb. The pain went
down the back of my leg, outside my calf and into my foot. I have what they call
drop foot, and my left leg is numb, and my ankle is weak. When it occurred, I
backed up and went to the scale room. I was working with two Mexican national
workers who are Alejandro and Jose, and I did not show them that I was hurt. I
have talked with them lately. When I got to the office, I sat in the chair in the scale
room and tried to figure out what was hurting so bad and why, and I could not sit.
I sat there for a few hours and went home and lay down in bed, took some Tylenol
and went to bed.

He stated that he received a text message later that day from Jon Hornbeck, the manager,

informing him that Jeff was about to start hauling corn again. He testified he responded to

Jon, saying, “I will contact Tim, and I have pulled something in my lower back. Burleson

who is my local doctor cannot get me in until tomorrow.”

Grantham presented to his primary physician, Dr. Stanley Burleson, on October 17,

2013, with complaints of significant back pain and left-leg numbness. Dr. Burleson noted

that Grantham had acute back pain and scheduled him for an MRI. The MRI, taken on

November 27, 2013, revealed (1) multilevel disc degeneration with annular tears through

midline without disc extrusion and (2) foraminal stenosis which appears most significant at

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Cite as 2017 Ark. App. 520

L4-5. It was noted that the MRI only “partially visualized L1 vertebral body.” Dr. Burleson

referred Grantham to Dr. Scott Schlesinger.

Grantham was seen by Dr. Schlesinger on December 9, 2013, and informed Dr.

Schlesinger that he had had “a mild pain in his lower back for several years but it worsened

in 11/2013 while he was lifting a heavy object at work. He was in a car accident in the

1970s which has caused some back pain on and off over the years.” Dr. Schlesinger

reviewed the MRI of Grantham’s back and noted the following abnormalities: (1)

moderately-severe degenerative changes, L3-4, L4-5, L5-S1; (2) mild-moderate neural

foramen stenosis L4-5, L5-S1 bilaterally; (3) mild-moderate lateral recess stenosis from the

mid part of L4 to the mid part of L5 bilaterally, left worse than right; and (4) moderately-

severe lateral recess stenosis from the mid part of L5 to the mid part of L5 on the left. Dr.

Schlesinger ordered x-rays of Grantham’s back, which revealed moderate degenerative

findings throughout the lumbar spine. Grantham was diagnosed with leg pain, low-back

pain, lumbar spine stenosis, lumbar degenerative disc disease, and hyperreflexia. Dr.

Schlesinger recommended epidural steroid injections and physical therapy. Grantham

received the injections but subsequently complained to Dr. Burleson that the injections

provided him with no relief. A physical-therapy note dated December 8, 2013, stated that

Grantham reported that his injury “is not workers comp.” Dr. Schlesinger noted on January

17, 2014, that Grantham had recurring back pain but that it worsened in November 2013

and had gotten progressively worse with time. Dr. Schlesinger opined,

Although the accident/injury did not or may or may not have caused the actual
radiological findings. I believe with a reasonable degree of medical certainty (greater
than 50%), that based upon the patient’s history the current complaints are a result
of the injury. The injury seems to have caused the onset of symptoms even if the

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Cite as 2017 Ark. App. 520

radiological findings were already present based upon the sequence of events and the
historical information provided by the patient.

Grantham subsequently underwent three back surgeries. 1 On November 4, 2015,

Dr. Burleson wrote a letter in which he opined that Grantham was “totally disabled” and

that no further intervention was warranted due to the failed back surgeries and chronic pain

in Grantham’s back. Grantham continued to work for Hornbeck during this time and

remained a salaried employee until the company closed in February 2015, at which time

Grantham received two weeks’ severance pay. He filed a workers’-compensation claim

concerning the injury on July 13, 2015. Up until that point, he had paid for his medical

treatment with health insurance provided through Hornbeck. Grantham’s claim was

denied, and he filed a complaint with the administrative law judge (ALJ) seeking benefits.

A hearing took place on February 26, 2016. Grantham filed a motion to supplement

the record on March 7, 2016. Hornbeck objected to the motion. The ALJ sustained

Hornbeck’s objection in a letter dated March 18, 2016. The ALJ filed an opinion on May

17, 2016, finding that Grantham had failed to prove that he suffered a compensable injury.

The opinion stated in pertinent part:

In this case, the claimant had a long standing history of back symptoms and chronic
degenerative changes. In order for the claimant to establish an aggravation of a
preexisting condition, a traumatic injury must first be identified. Pearline Williams
v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). Dr. Schlesinger’s
report of January 17, 2014, does not identify the traumatic injury that was aggravated
or combined with the pre-existing condition. And the use of the wording “did not
or may or may not” is insufficient to establish causation. Crudup v. Regal Ware,
Inc., 341 Ark. 804, 20 S.W.3d 900 (2000), Frances v. Gaylord Container Corp., 341
Ark. 527, 20 S.W.3d 280 (2000). Therefore, it is unclear if the treatment prescribed
1
January 23, 2014, April 8, 2014, and August 6, 2014.

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Cite as 2017 Ark. App. 520

was for a traumatic injury or pre-existing condition. Treatment for stenosis caused
by degeneration would not be considered a traumatic injury.

. . . .

2. The claimant has failed to prove by a preponderance of the credible evidence
that he sustained a compensable injury, caused by a specific incident, arising out of
and in the course of his employment which produced physical bodily harm,
supported by objective findings, requiring medical treatment or producing disability,
pursuant to Ark. Code Ann. § 11-9-102. The claimant has also failed to prove that
an injury supported by objective findings aggravated or combined with a pre-existing
condition based on Dr. Schlesinger’s report of January 17, 2014.

Grantham appealed to the Commission, which adopted and affirmed the ALJ’s opinion. He

timely appeals the Commission’s decision. He argues that the Commission’s decision is not

supported by substantial evidence.

In reviewing decisions from the Commission, we view the evidence and all

reasonable inferences deducible therefrom in the light most favorable to the Commission’s

findings. 2 When the Commission denies benefits because the claimant has failed to meet

his 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. 3 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. 4 Questions concerning the credibility of witnesses and the

2
Ganus v. St. Bernard’s Hosp., LLC, 2015 Ark. App. 163, 457 S.W.3d 683.
3
Willis v. Great Dane Trailers, 2014 Ark. App. 547, 444 S.W.3d 423.
4
Id.

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Cite as 2017 Ark. App. 520

weight to be given to their testimony are within the exclusive province of the Commission. 5

Once the Commission has made its decision on issues of credibility, the appellate court is

bound by that decision. 6

To prove a compensable injury as a result of a specific incident that is identifiable by

time and place of occurrence, the claimant must establish 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 that required medical services or resulted in

disability or death; (3) medical evidence supported by objective findings, as defined in

Arkansas Code Annotated section 11-9-102(16), 7 establishing the injury; and (4) that the

injury was caused by a specific incident identifiable by time and place of occurrence. 8 For

purposes of workers’-compensation law, an employer takes the employee as it finds him,

and an aggravation of a preexisting noncompensable condition by a compensable injury is,

itself, compensable. 9

The Commission, by adopting the ALJ’s opinion, found that Grantham failed to

prove through credible evidence that the injury caused internal or external harm to the body

that required medical services or resulted in disability. It also found that he failed to prove

5
Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
6
Mack-Reynolds Appraisal Co. v. Morton, 2010 Ark. App. 142, 375 S.W.3d 6.
7
(Repl. 2012).
8
Ark. Code Ann. § 11-9-102(4)(A)(i).
9
Jackson v. O’Reilly Auto., Inc., 2013 Ark. App. 755.

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Cite as 2017 Ark. App. 520

an aggravation of a preexisting injury. In denying Grantham’s claim for benefits, the

Commission focused on Dr. Schlesinger’s medical note of January 17, 2014, giving

significant weight to his statement that, “Although the accident/injury did not or may or

may not have caused the actual radiological findings.” It is the Commission’s duty to weigh

the medical evidence. 10 In this case, the Commission assigned much weight to the statement

above and little weight to the statements that followed. We hold that substantial evidence

supports the Commission’s finding that Grantham failed to prove physical bodily harm,

supported by objective findings, requiring medical treatment or producing disability. 11

Affirmed.

GRUBER, C.J., and WHITEAKER, J., agree.

Brent Baber and Robert S. Tschiemer, for appellant.

Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Phillip M. Brick, Jr., for

appellees Hornbeck Agricultural Group, LLP, and AG-Comp SIF Claims.

10
Loar v. Cooper Tire & Rubber Co., 2014 Ark. App. 240.
11
Although Grantham includes several subpoints in his argument, we do not address
them because they have no bearing on the issue of compensability under the specific facts
of this case.

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