A.E.R.T., Inc. v. Estrada

Cite as 2016 Ark. App. 604

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-608

Opinion Delivered December 14, 2016

A.E.R.T., INC. AND NATIONAL APPEAL FROM THE ARKANSAS
UNION FIRE INSURANCE WORKERS’ COMPENSATION
APPELLANTS COMMISSION
[NO. G208219]
V.

MARIA ESTRADA
APPELLEE AFFIRMED ON DIRECT APPEAL;
AFFIRMED ON CROSS-APPEAL

BRANDON J. HARRISON, Judge

In 2012, Maria Estrada claimed she suffered a gradual-onset back injury while

working for AERT, Inc. The Arkansas Workers’ Compensation Commission denied her

claim, reasoning that the statute of limitations had run on her claim. We reversed the

Commission’s statute-of-limitations decision and remanded the case in November 2014.

Estrada v. Aert, Inc., 2014 Ark. App. 652, 449 S.W.3d 327. The Commission, in turn,

remanded Estrada’s claim to an administrative law judge to “adjudicate the case in

accordance with the instructions from the Court of Appeals.”

The case was not reopened for new evidence, so the law judge decided it based on

the same evidentiary record the parties had developed. On remand, the law judge decided

that Estrada had failed to prove that she suffered a gradual-onset low back-injury around

1 February 2012, because she had “failed to provide medical evidence in the form of

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objective medical findings to support her claim.” The law judge reasoned that no medical

records indicated that Estrada’s issues were work related and that no objective medical

findings connected her low-back pain and the need for surgery to her work.

The Commission reversed the law judge’s decision and held that Estrada had

“established a compensable injury supported by objective findings, namely, the spasm shown

in the December 2011 MRI and the disc bulge shown in the August 2012 CT.” The

Commission found that these objective findings were causally related to the compensable

injury and not caused by a prior injury or preexisting condition. The Commission made

AERT responsible for benefits from 28 September 2012 forward. AERT appealed the

Commission’s decision. Estrada cross-appealed.

I. AERT’s Appeal

AERT argues that the Commission viewed the evidence for Estrada instead of

weighing the documentary and testimonial evidence impartially. As AERT correctly notes,

“[t]he injured party bears the burden of proof in establishing entitlement to benefits under

the Workers’ Compensation Act and must sustain that burden by a preponderance of the

evidence.” Hughes Sch. Dist. v. Bain, 2010 Ark. App. 204, at 4, 374 S.W.3d 173, 176. But

we disagree that there is a burden-of-proof error. Here are the Commission’s own words:

In the present matter, the Full Commission finds that the claimant
proved by a preponderance of the evidence that she sustained a compensable
injury. The claimant became employed with the respondents in 2005 and her
work was labor-intensive. The claimant’s work duties for the respondent
employer included lifting and stacking wood, 12 hours per shift. The claimant
began seeking medical treatment for back pain in December 2009. The
treating physician noted at that time that the claimant was suffering from pain
as a result of “standing all day.” The record does not indicate that the
claimant’s back pain resulted from any condition other than the claimant’s
work for the respondents.
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The claimant began treating with Dr. Sewell for back pain in 2011.
Dr. Sewell returned the claimant to work, “No bending, twisting, or
stacking.” The record therefore indicates that Dr. Sewell connected the
claimant’s back pain to her work for the respondents.

The Commission specifically recited that Estrada had met her burden of proof, and

it correctly identified the burden. Regarding the Commission’s statement that “[t]he record

does not indicate that the claimant’s back pain resulted from any condition other than the

claimant’s work for the respondents,” that is a causation-related conclusion that it made

based on all the evidence before it.

AERT claims that the Commission “manufactured a medical opinion concerning

causation” and relied on two statements in Estrada’s medical records that “simply do not

exist.” AERT rightly observes that the Commission wrongly cited to a 2009 report from

Dr. Lawrence Schemel. But the oversight is immaterial on the whole. The Commission’s

opinion (that we also quoted above) states,

The claimant began seeking medical treatment for back pain in
December 2009. The treating physician noted at that time that the claimant
was suffering from pain as a result of “standing all day.”

The quote “standing all day” came from a Dr. Schemel medical record dated 1 March 2010.

There, the doctor noted that Estrada had “some leg pain when [she] is standing all day,”

and he recommended that she “use support stocking for legs when working.” A separate

December 2009 report from Dr. Schemel stated that Estrada “has some low back pain—this

is bothering her nearly every day and she has been taking ibuprofen for this.” Given these

two statements, we disagree that the Commission “manufactured” medical evidence. True,

Dr. Schemel did not technically state his observation about Estrada’s pain and her standing

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all day “at the time” Estrada first started treatment. But the substance of Dr. Schemel’s

statements overall was not misrepresented by the Commission. Though more precision is

preferred, the mistaken reference is not legally significant in this case.

AERT also challenges another Commission statement: “The claimant began treating

with Dr. Sewell for back pain in 2011. Dr. Sewell returned the claimant to work, ‘No

bending, twisting, or stacking.’ The record therefore indicates that Dr. Sewell connected

the claimant’s back pain to her work for the respondents.” AERT believes the Commission

made this information up, too. Let’s put the Commission’s words to the test.

The work release signed by Dr. Sewell (dated 11 June 2012) includes the words

“twisting or stacking.” Dr. Sewell did not, however, give any express medical opinion on

whether Estrada’s back pain was work related. In fact, AERT is correct that the record

contained no medical opinions specifically stating that Estrada’s back injury was caused by

her work. AERT also claims that Estrada never made a causal link between her employment

and back condition to any of her doctors until she filed a claim several months after her back

surgery. It points to medical records where Estrada could have, but did not, indicate to her

doctors that her back problems were work related. For example, on an injury form Estrada

filled out on 2 February 2012, she marked “no” when asked if her condition related to an

injury. A record from a June 2012 visit to Dr. Sewell indicated that Estrada had not stated

the “setting in which [her symptoms] first occurred.” AERT believes this silence speaks

against her. Here the Commission found:

In the present matter, the Full Commission finds that the claimant
proved by a preponderance of the evidence that she sustained a compensable
injury. The claimant became employed with the respondents in 2005 and her
work was labor-intensive. The claimant’s work duties for the respondent-
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employer included lifting and stacking wood, 12 hours per shift. . . . The
record does not indicate that [Estrada’s] back pain resulted from any condition
other than [her] work for [AERT].
....
The Full Commission recognizes that, when the claimant presented
for treatment with Dr. Cannon in February 2012, she circled “No” after the
question, “Is your condition related to an injury?” Nevertheless, the claimant
plainly testified that her condition arose gradually and was not the result of a
specific incident or accidental injury. The record shows that the claimant’s
back condition was clearly related to her work duties for the respondents.

A CT of the claimant’s lumbar spine in August 2012 showed findings
including a broad-based disc bulge at L4-L5. Dr. Standefer performed surgery
on August 30, 2012. The claimant reported in September 2012, “I injured
my low back while working.” Dr. Standefer reported in October 2012 that
the claimant’s physical condition had improved following surgery.

A legal hurdle here for AERT is that an employee like Estrada is not necessarily

required to have a treating doctor state to a reasonable degree of medical certainty that

stacking large volumes of wood planks, for 12-hour shifts, over 5 years, caused her injury

to meet her burden of proof. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990

S.W.2d 522 (1999) (medical evidence on the issue of causation is not required in every

case). While AERT may be correct that a chiropractor’s instructions for an employee to

avoid some of the more physically demanding parts of her job does not equal a causation

opinion, an expert medical-causation opinion is not required in this case in any event.

Reasonable minds could conclude, as the Commission did, that Estrada’s gradual-onset back

injury was caused by her lifting and stacking wood at work. See Freeman v. Con-Agra Frozen

Foods, 344 Ark. 296, 40 S.W.3d 760 (2001) (standard of review).

In Wal-Mart Stores, Inc. v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001), we

affirmed the Commission’s award for a gradual-onset back injury when the evidence showed

that the claimant’s job required her to lift heavy boxes, and there was no indication that she
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had suffered a herniated disc before working for the employer. Like Leach, the Commission

had sufficient evidence that Estrada’s job required her to perform voluminous lifting. The

Commission was entitled to credit Estrada’s testimony that she worked 12-hour shifts, for

more than 5 years, lifting and stacking wood; it could also credit her testimony that her back

pain was first manageable with ibuprofen but escalated for years until it became unbearable

from a herniated disc. We affirm.

II. Estrada’s Cross-Appeal

Estrada appeals the Commission’s finding that the start date of her benefits should be

in September 2012, not February 2012. She argues that the eligibility date should be in

February because that is when AERT had actual notice of her back injury. The

Commission ruled that Estrada provided notice to her employer on 28 September 2012, the

day when she filed the AR-C form.

Arkansas Code Annotated section 11-9-701 provides in part that

(a)(1) Unless an injury either renders the employee physically or
mentally unable to do so, or is made known to the employer immediately
after it occurs, the employee shall report the injury to the employer on a form
prescribed or approved by the Workers’ Compensation Commission and to a
person or at a place specified by the employer, and the employer shall not be
responsible for disability, medical, or other benefits prior to receipt of the
employee’s report of injury.
....
(b)(1) Failure to give the notice shall not bar any claim:

(A) If the employer had knowledge of the injury or death;

(B) If the employee had no knowledge that the condition or
disease arose out of and in the course of the employment; or

(C) If the commission excuses the failure on the grounds that
for some satisfactory reason the notice could not be given.

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Ark. Code Ann. § 11-9-701 (Supp. 2012).

Estrada argues that her employer learned that she had suffered a work-related injury

because she “continually told her supervisor that her back was hurting, and that she was

receiving treatment” and that her supervisor moved her to a lighter-duty position. She also

says that she did not understand the company policy about reporting injuries and was afraid

of being fired and that no supervisor or human-resource manager ever asked her how she

had been injured.

We affirm the Commission here, too. Estrada did not give formal notice, as required

by Ark. Code Ann. § 11-9-701(a)(1), until September 2012. The Commission found that

she did not prove by a preponderance of the evidence that AERT knew that her injury was

work-related before the AR-C form was filed. The only evidence before the Commission

supporting Estrada’s view on the notice issue was her own. But the Commission is not

required to believe her testimony and may accept and translate into findings of fact only

those portions of testimony it deems worthy of belief. Wise v. Vill. Inn, 2015 Ark. App.

406, at 4–5, 467 S.W.3d 186, 189. We affirm on cross-appeal.

Affirmed on direct appeal; affirmed on cross-appeal.

GLADWIN, C.J., and VAUGHT, J., agree.

Worley, Wood & Parrish, P.A., by: Jarros S. Parrish, for appellants.

Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellee.

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