{ "id": 6141518, "name": "Elmer L. MAYWEATHER v. MANGUM CONTRACTING, INC.", "name_abbreviation": "Mayweather v. Mangum Contracting, Inc.", "decision_date": "2000-11-01", "docket_number": "CA 00-218", "first_page": "322", "last_page": "330", "citations": [ { "type": "official", "cite": "71 Ark. App. 322" }, { "type": "parallel", "cite": "29 S.W.3d 783" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "341 Ark. 527", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257722 ], "weight": 5, "year": 2000, "pin_cites": [ { "parenthetical": "reversing this court and upholding the Commission's denial of benefits where claimant reported incidences other than the accident occurring at work as the cause of his injuries" } ], "opinion_index": 0, "case_paths": [ "/ark/341/0527-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-704", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(c)(4)" } ], "opinion_index": 1 }, { "cite": "62 Ark. App. 78", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137113 ], "weight": 2, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/62/0078-01" ] }, { "cite": "992 S.W.2d 130", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6138674, 243436 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/ark-app/66/0159-01", "/ark/338/0215-01" ] }, { "cite": "66 Ark. App. 159", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138674 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/ark-app/66/0159-01" ] }, { "cite": "846 S.W.2d 188", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6137880 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/ark-app/40/0108-01" ] }, { "cite": "40 Ark. App. 113", "category": "reporters:state", "reporter": "Ark. App.", "year": 1993, "opinion_index": 1 } ], "analysis": { "cardinality": 639, "char_count": 16343, "ocr_confidence": 0.726, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17494687914237472 }, "sha256": "ff478f5117d9b54d1221edf47e5b68ae1440fb7c07b947568f2bbb4a03a28a50", "simhash": "1:e627a895abeb41fc", "word_count": 2690 }, "last_updated": "2023-07-14T17:32:31.293590+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Jennings, Crabtree, and Meads, JJ., agree.", "Griffen, J\u201e dissents." ], "parties": [ "Elmer L. MAYWEATHER v. MANGUM CONTRACTING, INC." ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nAppellant, Elmer J Mayweather, appeals from the Workers\u2019 Compensation Commission\u2019s decision finding that he failed to show by a preponderance of the evidence that he sustained an accidental injury arising out of and in the course of his employment with appellee, Mangum Contracting, Inc. We affirm the Commission\u2019s decision.\nOur standard of review is well-settled. On appeal, we review the evidence in the light most favorable to the Commission\u2019s decision and affirm if the decision is supported by substantial evidence. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). Evidence is substantial if reasonable minds could reach the same conclusion. Id. When the Commission denies benefits because the claimant has failed to meet his burden of proof, we affirm the Commission\u2019s decision if the decision displays a substantial basis for the denial of relief. Id.\nTo be compensable, an accidental injury must arise out of and in the course of employment. Ark. Code Ann. \u00a7 ll-9-102(4)(A)(i) (Supp. 1999). Appellant testified that on September 4, 1998, a Friday, he sustained an injury to his back while lifting rebar and that the pain worsened on September 8, 1998, the Tuesday following Labor Day, when he entered the cab of a pickup truck at work and twisted his back. In support of appellant\u2019s testimony, appellant\u2019s supervisor testified about appellant reporting an injury to his back that occurred while working with rebar; however, the supervisor was unable to recall the date of appellant\u2019s report. The Commission, discounting the supervisor\u2019s testimony, found that appellant\u2019s testimony was not credible and denied benefits because it concluded that his injury did not arise out of and in the course of his employment.\nThe Commission relied on the testimony of the company owner, who testified that while appellant reported the September 8, 1998, incident, appellant did not report an injury on September 4, 1998, and, contrary to appellant\u2019s claim, his employees were not working with rebar that day. The owner also recalled that while reporting the September 8, 1998, incident, appellant had advised him that his back began bothering him at home on the previous Saturday. The owner also testified that appellant reported an injury on September 23, 1998, after working with rebar.\nThe Commission also noted that when appellant was examined by a physician on September 8, 1998, appellant failed to mention the September 4, 1998, incident in his written report of where and how the accident occurred, instead fisting September 8, 1998, as the date of the accident and writing, \u201cWell I had a small ache started Saturday. When I got into our work truck this morning I twisted it the wrong way.\u201d In a document dated October 8, 1998, appellant stated that the accident occurred on September 8, 1998, and wrote, \u201cAs I was getting up into the work truck I twisted my back in a manner where I injured my disk.\u201d\nThe Commission further noted that in a letter dated October 16, 1998, appellant\u2019s attending neurosurgeon reported that appellant\u2019s injury occurred \u201cafter he had been bending and picking up stainless steel pipe, metal rods and casings all day,\u201d and that \u201c[sjhortly after completing this he went to climb into the truck when he felt the pop in his lower back.\u201d The certificate of the attending neurosurgeon, dated December 18, 1998, noted that the accident occurred September 8, 1998. In a letter dated December 28, 1998, the neurosurgeon wrote that appellant \u201crelates his pain to a work accident that occurred several weeks ago. In the process of moving a concrete finishing machine, he felt a pop and burning type pain in his low back.\u201d In his deposition of April 21, 1999, the neurosurgeon reported that appellant twisted or wrenched his back while using a motor-driven concrete finisher and that he attributed appellant\u2019s injury to the use of the finisher.\nThe Commission concluded as follows:\nThe evidence shows that the claimant subsequently stated that he hurt his back lifting rebar on September 4, 1998; that he twisted his back on September 8 after a small ache the previous Saturday; and that he in fact hurt his back while lifting rebar on September 23, 1998[,] rather that September 4. The claimant later said that his compensable injury arose from picking up material all day on an unspecified date, and later that the compensable injury resulted from working with a concrete finishing machine. In comparing the varied and multiple accounts of an accidental injury alleged by the claimant with the preponderance of credible evidence of record, we must find that the claimant is not credible. Therefore, we find that the claimant failed to show that he sustained an accidental injury which arose out of and in the course of his employment with the respondent-employer.\nViewing the evidence in the light most favorable to the Commission\u2019s decision, the Commission\u2019s assertion that appellant\u2019s testimony is not credible is a conclusion that reasonable minds could reach. Based on this conclusion, and particularly focusing on appellant\u2019s report that his back began hurting on Saturday, September 5, 1998, appellant failed to establish that he sustained an accidental injury that arose out of and in the course of his employment. Thus, we hold that substantial evidence supported the Commission\u2019s denial of benefits. See Frances, supra (reversing this court and upholding the Commission\u2019s denial of benefits where claimant reported incidences other than the accident occurring at work as the cause of his injuries).\nAffirmed.\nRobbins, C.J., and Jennings, Crabtree, and Meads, JJ., agree.\nGriffen, J\u201e dissents.", "type": "majority", "author": "Josephine Linker Hart, Judge." }, { "text": "Wendell L. GRIFFEN, Judge,\ndissenting. I cannot agree that we must defer to the Commission\u2019s findings in this case in the face of unmistakable proof that the Commission arbitrarily disregarded appellant\u2019s supervisor\u2019s corroborating testimony about the injury in this claim. While it is the function of the Workers\u2019 Compensation Commission, and not the appellate courts, to act as fact-finder in workers\u2019 compensation cases, it is the duty of the appellate courts to reverse the Commission\u2019s decisions when convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion reached by the Commission. Moser v. Arkansas Lime Co., 40 Ark. App. 113, 846 S.W.2d 188 (1993). This is such a case.\nAppellant began working as a concrete finisher for appellee in January 1993. He claimed that on September'4, 1998, he injured his back while picking up pieces of steel known as rebar. He testified that he \u201cfelt like a pop\u201d after picking up the rebar, and felt numbness go down his leg. However, he also stated that the injury was \u201cthe accumulation of the days work.\u201d He testified that on that same day, he reported the injury to his supervisor, Clarence McDaniel, who told him to report to Thomas Mangum, the owner. Appellant testified that McDaniel was present when he discussed his injury with Mangum, and that Mangum did not make a written report of the injury. He stated that Mangum told him if he got worse over the weekend to go to the emergency room. Appellant stated that he was in pain the remainder of that day, and that his back continued to hurt over the Labor Day weekend. He testified that on September 8, after he clocked into work, he twisted his back as he jumped into the company truck, and his pain subsequently worsened. He stated that he reported this injury to Man-gum, who sent appellant to see Doctor James Seale, Jr., on that same day.\nMangum testified that according to his records his employees were grouting a pump on September 4 and no rebar work was done on that date. He stated that appellant first reported the injury to him on September 8 and told him that he had twisted his back and was unable to get out of the truck. Mangum stated that appellant told him his back started hurting him while he was at home the previous Saturday (September 5). He testified that he told appellant that if his back continued to bother him to come back the next day, and he could then go see Dr. Seale. Mangum could not remember if McDaniel was present during this conversation.\nHe maintained that appellant subsequently reported an injury from rebar work on September 23, 1998, not on September 4. He stated that his wife filled out the injury report. Mangum explained that he did not understand appellant to have indicated when he twisted his back that it occurred on the job because appellant stated that it had been bothering him since Saturday and did not indicate that his injury was work-related.\nThe Commission expressly found that appellant was not a credible witness, and that he failed to prove that he received an injury on September 4. The Commission asserted that appellant\u2019s alleged September 4 injury was uncorroborated, in light of Mangum\u2019s testimony. Further, the Commission noted that the first medical report and the majority of the accompanying documents indicate that appellant\u2019s back began hurting on September 5. The Commission maintained that the evidence showed appellant\u2019s back began aching on Saturday; that he twisted his back on September 8, and that he subsequently stated that he injured his back on September 4 lifting rebar, when in fact he injured his back lifting rebar on September 23. The Commission further noted that the evidence showed appellant provided three different versions of how his injury occurred: he injured it on September 4 lifting rebar, he injured it on September 8 hopping into his work vehicle, and he injured it operating a concrete finishing machine. The Commission found that appellant\u2019s \u201cvaried and multiple accounts\u201d of his injury were not credible, and found that he failed to show by a preponderance of the evidence that he sustained an accidental injury that arose out of and in the course of his employment with appellee, identifiable by time and place.\nThe testimony in this case does involve varied accounts about the work appellant performed and when he reported his injury. However, contrary to the Commission\u2019s finding, appellant\u2019s testimony was not uncorroborated. McDaniel, appellant\u2019s supervisor, testified that appellant told him that he injured his back, but McDaniel was unsure about the date or circumstances of his injury. He testified that he knew it was near Labor Day. He testified that he believed they \u201cwere tying up steel or messing with some.\u201d However, he also stated that \u201c[appellant] told me that day that he twisted his back or something when he hopped up in the vehicle. Then on another occasion he said it was bothering him after he had been tying steel.\u201d McDaniel stated that Mangum told appellant if the pain got worse over the weekend to go to the emergency room, but he did not know whether Mangum filled out any paperwork. He testified that he was not present on September 8 when Mr. Mayweather hurt his back in the truck, but he returned to work later that same day. McDaniel stated:\nIn September of \u201998 the first time he had a complaint we were all out on the yard tying steel. That was the first complaint he had about his back and that is the time I told him to report to Mr. Mangum. I believe it was during this same day that I heard the conversation about, \u201cGo to the emergency room if you have to go on the weekend.\u201d\nThe only way the Commission could have concluded that appellant\u2019s testimony was uncorroborated was by disregarding the testimony from McDaniel.\nIt is true that appellant\u2019s testimony conflicts with Mangum\u2019s and that the documentation providing a date of injury lists the accident date as September 8, not September 4. However, the Commission arbitrarily disregarded McDaniel\u2019s testimony when it stated that appellant\u2019s testimony is uncorroborated and made only one reference to McDaniel\u2019s testimony: \u201cClarence McDaniel, the claimant\u2019s supervisor, also testified regarding an injury the claimant reported while tying steel. Mr. McDaniel testified that the claimant told him he had injured his back, but he was unsure of the date or circumstances under which the claimant\u2019s back had been hurt.\u201d McDaniel\u2019s testimony plainly did not end there. McDaniel testified that he knew it was near Labor Day when appellant first reported an injury to him. He also testified that he believed the employees \u201cwere tying up steel or messing with some.\u201d However, he also stated that \u201c[appellant] told me that day that he twisted his back or something when he hopped up in the vehicle. Then on another occasion he said it was bothering him after he had been tying steel.\u201d McDaniel confirmed that Mangum told appellant if the pain got worse over the weekend to go to the emergency room. That testimony was very crucial. September 4 was the Friday before Labor Day; September 8 was the Tuesday following Labor Day. Further, McDaniel testified that he was not present on September the 8, when Mr. Mayweather hurt his back in the truck. He stated:\nIn September of \u201998 the first time he had a complaint we were all out on the yard tying steel. That was the first complaint he had about his back and that is the time I told him to report to Mr. Mangum. I believe it was during this same day that I heard the conversation about, \u201cGo to the emergency room if you have to go on the weekend.\u201d\n(Emphasis added.)\nThus, McDaniel\u2019s testimony plainly corroborates appellant\u2019s assertion that he first reported his injury from lifting rebar before the Labor Day weekend. While it is the exclusive function of the Commission to determine witness credibility and resolve conflicting testimony, the Commission is not granted leeway to arbitrarily disregard the testimony of any witness. See Patterson v. Frito Lay, Inc., 66 Ark. App. 159, 992 S.W.2d 130 (1999); Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998). In this case the Commission arbitrarily disregarded testimony that directly supported the appellant\u2019s claim. That arbitrary disregard of testimony produced a biased fact-finding that we have no duty to disregard and a plain duty to overturn.\nObviously, both Mangum and appellant gave self-serving testimony. Appellant had an interest in receiving workers\u2019 compensation benefits; Mangum, a self-insured employer, obviously was motivated to avoid liability for benefits. By contrast, McDaniel\u2019s testimony was not selfi-serving and corroborated appellant\u2019s account. The Commission made no finding that McDaniel was not credible. In fact, McDaniel was the only impartial witness in the case. McDaniel\u2019s testimony corroborated appellant\u2019s account and directly contradicted Mangum\u2019s testimony. The Commission\u2019s disregard of McDaniel\u2019s testimony evidences a disquieting yet clear bias in favor of the employer. Given that McDaniel was a supervisor whose testimony corroborated that of appellant and constituted the only testimony from someone without a financial stake in the claim, the Commission\u2019s wholesale disregard of his testimony constitutes a flagrant breach of its duty to weigh evidence impartially without according any party the benefit of the doubt. See Ark. Code Ann. \u00a7 11-9-704(c)(4) (Repl. 1996).\nAppellate deference to the Commission in its role as trier of fact does not oblige us to slavishly affirm decision\u2019s based on biased fact-finding where the record plainly shows that the Commission has arbitrarily disregarded direct and unimpeached proof about a dispositive factual issue. What was true thousands of years ago holds true today: those who decide legal disputes must be even-handed. Society will understand and forgive imperfect legal outcomes by fair-minded decision makers. But no system of law can or should endure when people lose faith in the commitment of those who judge to be fair.\nI respectfully dissent.\n\u201cYou shall do no injustice in judgment; you shall not be partial to the poor nor defer to the great, but you are to judge your neighbor fairly.\u201d Leviticus 19:15 (New American Standard Version). Six thousand years of human experience has not lessened the truth of this command; rather, our experience has validated it.", "type": "dissent", "author": "Wendell L. GRIFFEN, Judge," } ], "attorneys": [ "Sheila F. Campbell, for appellant.", "Barber, McCaskill, Jones & Hale, P.A., by: Gail Ponder Gaines, for appellee." ], "corrections": "", "head_matter": "Elmer L. MAYWEATHER v. MANGUM CONTRACTING, INC.\nCA 00-218\n29 S.W.3d 783\nCourt of Appeals of Arkansas Division I and II\nOpinion delivered November 1, 2000\nSheila F. Campbell, for appellant.\nBarber, McCaskill, Jones & Hale, P.A., by: Gail Ponder Gaines, for appellee." }, "file_name": "0322-01", "first_page_order": 350, "last_page_order": 358 }