Northwestern National Insurance v. Weast , 253 Ark. 710 ( 1972 )

Frank Holt, Justice.

Appellee sustained a back injury which required surgery for ruptured discs. The Workman’s Compensation Commission, in affirming a referee’s opinion, found that appellee had not suffered her alleged compensable claim during her employment with appellant Bearden Enterprises; also, that appellee’s disability was the result of a non-compensable injury caused by appellee’s fall in her yard. On appeal the Circuit Court held there was no substantial evidence to support the finding of the Commission and that appellants’ counsel had waived the right to cross-examine claimant’s treating physicians. Accordingly, a deposition of Dr. Freeland was expunged from the record. From the judgment of the Circuit Court reversing and remanding the cause back to the Commission comes this appeal. Appellants contend for reversal of that judgment that the finding and action of the Workman’s Compensation Commission are supported by substantial evidence and, therefore, should be affirmed.

We first observe that the burden was on the appellee claimant to establish her claim for compensation by a preponderance of the evidence before the Commission and that the trial court and this court on appeal review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings which, like those of a jury, will be upheld if there is any substantial evidence to support the Commission’s action. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W. 2d 489 (1972), Mayner v. Flyer Garment Co., 249 Ark. 384, 459 S.W. 2d 413 (1970), Bentley v. Henderson, 251 Ark. 203, 471 S.W. 2d 548 (1971), and Dura Craft Boats v. Daugherty, 253 Ark. 340, 485 S.W. 2d 739. Evidence was adduced that appellee claimant injured her back at work around 8 a.m. on December 8, 1969, when she slipped from a toilet seat. She felt a sharp pain and immediately reported her injury to her supervisor. She worked that day and on the following day her local physician, Dr. Freeland, examined and Xrayed her. He diagnosed her injury as acute sprain with muscle spasm in the lumbosacral area of the back. He prescribed conservative treatment and observed her again on December 10, 12, 17 and 19. The Xrays revealed no evidence of fracture or displacement. Appellee complained of soreness in her right leg as well as her back. According to her doctor, she was improved with each visit and he discharged her on December 19. She returned to her job and worked on December 22 and 23. Upon returning from her work on December 23, appellee, as she was walking across her yard, fell face forward to the ground. Following this momentary fall, she was assisted by her husband into the house. The next day she did not work because of greater soreness about her back. After the Christmas holidays, she returned to work for a couple of weeks and then secured a leave-of-absence from her job for approximately two months because, according to her, of the problem with her back and the responsibility of taking care of her aging mother. Appellee, her coworkers, and other witnesses testified that she complained constantly after her December 8 back injury and, also, after her fall on December 23.

During her leave-of-absence, she saw her local physician, Dr. Freeland, on February 21 and 24. According to him, the nature of her complaint related to her menstrual irregularities, anxiety, and nervous tension. She did not complain or mention anything to him about her back injury or resulting pain on either of these visits. She returned to work on March 16. On April 4, she again saw Dr. Freeland and renewed her complaint about pain in her back. This time, however, she complained of pain in the left leg instead of the right leg. She did not tell him about the fall in her yard on December 23. On examination he found spasm of the muscles in the thigh and calf of her left leg and in the lumbosacral area of the back. He then diagnosed her condition as a possible ruptured disc and referred her to a specialist, Dr. Blackwell, who saw her on April 10 and hospitalized her for three weeks. During this time she responded to conservative treatment sufficiently to be discharged from the hospital. About a week later, since her pain persisted, Dr. Blackwell referred her to another specialist, Dr. Padberg. After performing certain tests, including a myelogram, he successfully performed surgery and repaired two large discal lesions in appellee’s back.

As we have previously said, the burden was upon the claimant to convince the Commission by a preponderance of the evidence that her first injury was the cause of her disability. We think what we said in Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950 (1972), is appropriate in the case at bar:

“The commission made a fact finding upon a close question of fact by resolving all inferences against appellants and by giving the evidence the most liberal construction possible in favor of the claimant. The question is not whether the testimony would have supported a finding contrary to the one made, but whether it is substantial in support of the one made. Since we cannot say that reasonable minds could not reach the commission’s conclusion from the evidence, that evidence was substantial.”

See, also, Wilson v. United Auto Workers, 246 Ark. 1158, 441 S.W. 2d 475 (1969), and Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W.2d 487 (1968).

In the case at bar, the day following appellee’s alleged compensable injury, her local physician, Dr. Free-land, examined her finding an acute sprain and muscle spasm in her lumbosacral back area. His Xrays showed no fractures or displacements. She responded to conservative treatments and after several visits to him, he discharged her as a patient. She immediately returned to work. During subsequent visits to Dr. Freeland, after returning to work and during her leave-of-absence, she made complaints about other physical conditions. She never mentioned to him anything about the second fall nor made a complaint that her back continued to cause her pain and suffering. Later when appellee did complain to him, she described the pain as existing in the left instead of the right leg. It could very well be that it is improbable that the second injury and not the first was the cause of claimant’s back condition. However, it is not shown that it was a physical or medical impossibility for such to occur. Since there is substantial evidence, as we have so many times defined that phrase, to support the Commission’s finding, the Circuit Court was without authority to reverse the Commission as fact finders.

Appellants next assert that the court erred in holding they had waived their right to cross-examine the treating physician. We agree. The medical reports of these doctors were submitted without objection approximately two months before the hearing. At the close of the hearing, before the referee, the appellants’ attorney was asked if he wished to cross-examine any of the doctors. The attorney responded that he would like to have a few days to consider the matter. By a letter, ten days later, the attorney advised the referee his clients insisted on the right of cross-examination of the doctors since at the hearing appellee admitted to having suffered a fall in her front yard following the alleged compensable injury. This fall occurred four days after she was discharged by Dr. Freeland. This attorney advised that after reading the medical reports he could not find that the claimant had ever informed any of her doctors that she had fallen subsequent to the alleged compensable injury.

Appellants’ requested cross-examination of Dr. Free-land was permitted over appellee’s objection. Ark. Stat. Ann. §.81-1327 provides:

“In *** conducting a hearing, the Commission shall not be bound by technical or statuatory rules of evidence or by technical or formal rules of procedure *** but may *** conduct the hearing in such a manner as will best ascertain the rights of the parties. ***”

Also, Rule 14 of the Commission provides that it is within the discretion of the hearing officer or the Commission to allow the introduction of medical reports of physicians even if proper notice is not given. The Commission had broad discretion with reference to the admission of evidence.

In the case at bar, we find no evidence of any abuse of discretion. Accordingly, the judgment of the Circuit Court is reversed and the cause remanded with directions to affirm the Commission’s dismissal of appellee’s claim.

Reversed and remanded.

Jones, J., dissents.