Weldon v. Pierce Bros. Constr.
Annotate this Case
A. G. WELDON v. PIERCE BROTHERS CONSTRUCTION,
Employers Mutual Casualty Co., and Second
Injury Fund
CA 95-853 ___ S.W.2d ___
Court of Appeals of Arkansas
En Banc
Opinion delivered July 3, 1996
1. Workers' compensation -- determining sufficiency of evidence
on review -- when decision of Commission will be reversed. --
In determining the sufficiency of the evidence to sustain the
findings of the Workers' Compensation Commission, the
appellate court reviews the evidence in the light most
favorable to the Commission's findings and affirms if they are
supported by substantial evidence; substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion; the court of appeals does
not reverse a decision of the Commission unless it is
convinced that fair-minded persons with the same facts before
them could not have reached the conclusion arrived at by the
Commission.
2. Workers' compensation -- recurrence of an injury -- when
liability will be imposed on second carrier. -- A recurrence
exists when the second complication is a natural and probable
consequence of a prior injury; only where it is found that a
second episode has resulted from an independent intervening
cause is liability imposed upon the second carrier.
3. Workers' compensation -- basis of Commission's decision not
limited to medical evidence -- Commission has duty to
translate evidence on all issues before it into findings of
fact. -- The Workers' Compensation Commission need not base a
decision on how the medical profession may characterize a
given condition, but rather primarily on factors germane to
the purposes of workers' compensation law; the Commission has
never been limited to medical evidence only in arriving at its
decision concerning the amount or extent of a claimant's
injury; rather, the Commission considers all competent
evidence, including medical, as well as lay testimony and the
testimony of the claimant himself; while medical opinions are
admissible and frequently helpful in workers' compensation
cases, they are not conclusive; it is the duty of the Workers'
Compensation Commission to translate the evidence on all
issues before it into findings of fact; the specialization and
experience of the Commission make it better equipped than the
appellate court to analyze and translate evidence into
findings of fact.
4. Workers' compensation -- appellant's argument without merit --
Commission's finding that incident was a recurrence of earlier
injury supported by substantial evidence. -- Appellant's
argument that the Commission erred in finding that the 1991
injury was a recurrence of the 1989 injury or the resulting
surgery was without merit where there was evidence that
appellant had been neither pain-free nor without back
difficulties after the 1989 accident; where his orthopedic
surgeon testified that he had assessed appellant's condition
after the 1991 injury as strained ligaments and possible
flare-up of an epidural scar and that there were no new
restrictions or limitations on appellant's activities from the
time he was released after surgery until the last time the
surgeon saw him in 1992; where appellant testified that after
surgery he was never again one-hundred percent; and where
appellant's housemate testified that his pain had not gone
away nor had he been without problems after the surgery and
that he had never regained his strength and stamina after the
1989 accident; substantial evidence supported the Commission's
finding that the 1991 incident was a recurrence of the 1989
injury rather than an aggravation as contended by appellant.
5. Workers' compensation -- no error found in Commission's denial
of wage-loss claim -- Commission's finding affirmed. -- Where
appellant failed to prove that either his degree of permanent
physical impairment or his degree of permanent partial
disability increased as a result of his recurrence, any wage
loss appellant suffered was a result of his 1989 injury and
not his 1991 recurrence; thus, the Commission's finding that
he was not entitled to wage-loss disability was affirmed.
Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
James F. Lane, for appellant.
Huckabay, Munson, Rowlett & Tilley, P.A., by: Jim Tilley and
Julia Busfield, for appellees.
John F. Stroud, Jr., Judge.
*ADVREP*CA10* EN BANC
A. G. WELDON
APPELLANT
V.
PIERCE BROTHERS CONSTRUCTION,
EMPLOYERS MUTUAL CASUALTY CO.,
and SECOND INJURY FUND
APPELLEES
CA 95-853
July 3, 1996
APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION [E116577]
AFFIRMED
John F. Stroud, Jr., Judge.
In August 1989, A. G. Weldon suffered compensable injuries
when he was rear-ended in a company van owned by Voss Heating and
Air Conditioning. He received medical treatment and in 1990
underwent lumbar surgery, resulting in restrictions on lifting and
preventing a return to his job with Voss. He was rated with a ten
percent permanent impairment rating in 1991. Two months later he
began working for Pierce Brothers Construction. He was pulling
electrical wires through a conduit on September 4, 1991, when he
suffered a second back injury. That injury is the subject of Mr.
Weldon's appeal to this court. He contends that the Workers'
Compensation Commission erred 1) in finding that his September 4,
1991, injury was a recurrence of the August 28, 1989, injury; and
2) in denying his wage loss claim. We affirm.
Appellant did not work after his 1991 injury until March 1992,
when he became a gate guard for T and T Security in Poteet, Texas.
He quit that job in November 1991 because of his back problems. In
December 1993 he began running a computer and maintaining inventory
records for Compton's Air Conditioning and Heating in Kerrville,
Texas. Because he had no medical insurance, he arranged with his
employer to be paid a wage which would not disqualify him from
receiving social security and Medicare benefits. He was employed
by Compton's in June 1994 when a hearing was held before the
administrative law judge on the compensability of the injury Mr.
Weldon suffered in 1991 while working for Pierce Brothers.
The Workers' Compensation Commission explained the findings of
the law judge by stating: "The Administrative Law Judge held that
claimant is entitled to an additional four percent permanent
anatomical impairment rating for an overall permanent partial
disability of 30 percent and that the Second Injury Fund is liable
for the amount of 16 percent." The Workers' Compensation
Commission reversed the decision, finding that the determination of
the ALJ was not supported by a preponderance of the evidence. The
Commission stated:
A preponderance of the credible evidence indicates that the
alleged incident that occurred in 1991 was a recurrence of his
1989 injury. Thus, the Second Injury Fund is not liable.
Furthermore, there is insufficient evidence of an increase
[sic] disability to hold respondent employer liable [for] any
additional benefits. Therefore, we reverse the decision of
the Administrative Law Judge.
Furthermore . . . a review of the evidence indicates
that claimant has set himself up to earn less than
[minimum] wage so that he can continue to receive $632
per month in social security benefits. While claimant
should be commended for returning to work, claimant
should not receive wage loss compensation where he is
deliberately contributing to his loss of wage earning
capacity. Therefore, we reverse the decision of the
Administrative Law Judge.
Appellant's first point is that the Commission erred in
finding that the 1991 injury was a recurrence of his 1989 injury.
He contends that there were no facts before the Commission from
which reasonable minds could have concluded that this was a
recurrence rather than an aggravation or a new injury. He points
out that nowhere in the testimony or medical records does the term
"recurrence " appear, and he has abstracted use of the term
"aggravation" by the doctor who performed his surgery.
In determining the sufficiency of the evidence to sustain the
findings of the Workers' Compensation Commission, the appellate
court reviews the evidence in the light most favorable to the
Commission's findings and affirms if they are supported by
substantial evidence. Grimes v. North American Foundry, 42 Ark.
App. 137, 856 S.W.2d 309 (1993). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App.
120, 842 S.W.2d 463 (1992). The Court of Appeals does not reverse
a decision of the Commission unless it is convinced that fair-
minded persons with the same facts before them could not have
reached the conclusion arrived at by the Commission. Wilmond v.
Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). A
recurrence exists when the second complication is a natural and
probable consequence of a prior injury. Aetna Insurance Co. v.
Dunlap, 16 Ark. App. 51, 696 S.W.2d 771 (1985). Only where it is
found that a second episode has resulted from an independent
intervening cause is liability imposed upon the second carrier.
Id.
The Commission need not base a decision on how the medical
profession may characterize a given condition, but rather primarily
on factors germane to the purposes of workers' compensation law.
Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348
(1990). As our supreme court has stated:
The Commission has never been limited to medical evidence
only in arriving at its decision as to the amount or
extent of a claimant's injury. Rather, we wrote that the
Commission should consider all competent evidence,
including medical, as well as lay testimony and the
testimony of the claimant himself. Further . . . while
medical opinions are admissible and frequently helpful in
workers' compensation cases, they are not conclusive.
Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 298 S.W.2d 521 (1989)
(citations omitted). In fact, it is the duty of the Workers'
Compensation Commission to translate the evidence on all issues
before it into findings of fact. Johnson v. General Dynamics, 46
Ark. App. 188, 878 S.W.2d 411 (1994). The specialization and
experience of the Commission make it better equipped than this
court to analyze and translate evidence into findings of fact.
Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162
(1987).
Appellantþs first point of appeal is that the Commission erred
in finding that the 1991 injury was a recurrence of the 1989 injury
or the resulting surgery. There was evidence presented at the
hearing, however, that appellant had been neither pain free nor
without back difficulties after the 1989 accident. His orthopedic
surgeon testified that he had assessed appellant's condition after
the 1991 injury as strained ligaments and possible flare-up of an
epidural scar, and that there were no new restrictions or
limitations on appellant's activities from the time he was released
after surgery until the last time the surgeon saw him in 1992.
Appellant testified that after surgery he was never again one-
hundred percent. Appellant's housemate testified that his pain had
not gone away nor had he been without problems after the surgery,
and that he had never regained his strength and stamina after the
1989 accident. We hold that substantial evidence supports the
Commissionþs finding that the 1991 incident was a recurrence of the
1989 injury rather than an aggravation as contended by appellant.
Appellantþs second point of appeal is that the Commission
erred in denying his wage loss claim. Wage loss is a component of
permanent partial disability benefits under Ark. Code Ann. 11-9-
502(b). A claimant may receive permanent partial disability
benefits to the extent that his disability exceeds his percentage
of physical impairment. Id. In response to appellant's claim for
additional permanent partial disability benefits, the Commission
found "there is insufficient evidence of an increase [sic]
disability to hold respondent employer liable of [sic] any
additional benefits."
In this case, appellant failed to prove that either his degree
of permanent physical impairment or his degree of permanent partial
disability increased as a result of his recurrence. Therefore, any
wage loss appellant has suffered is a result of his 1989 injury and
not his 1991 recurrence. Thus, the Commission's finding that he is
not entitled to wage-loss disability is affirmed.
Because we uphold the Commission's finding that appellant
sustained a recurrence of his 1989 injury and suffered no
additional impairment or disability as a result of that recurrence,
we do not address his argument that the Commission erred in
considering his deliberate suppression of his wages in determining
whether he was entitled to wage-loss disability.
Affirmed.
Cooper, Robbins, Rogers, and Neal, JJ., agree.
Mayfield, J., dissents. *ADVREP*CA10-A*
EN BANC
CA 95-853
JULY 3, 1996
A.G. WELDON AN APPEAL FROM THE ARKANSAS
APPELLANT WORKERS' COMPENSATION
COMMISSION
VS.
PIERCE BROTHERS CONSTRUCTION, DISSENTING OPINION
EMPLOYERS MUTUAL CASUALTY CO.,
and SECOND INJURY FUND
APPELLEES
Melvin Mayfield, Judge.
The appellant-claimant in this workers' compensation case
sustained a severe injury to his lower back and neck in a work-
related automobile accident when he was rear-ended on August 28,
1989, while employed by Voss Air Conditioning. Eventually surgical
intervention was required on appellant's lower back, and he finally
joint-petitioned the claim for over $12,000. On September 4, 1991,
while working for appellee Pierce Brothers Construction, appellant
again hurt his back. He suffered a ligamentous strain and
stretching of scar tissue. He filed this claim and the
administrative law judge held he was entitled to a 30 percent
permanent partial disability. He held Pierce Brothers liable for
a 4 percent permanent physical impairment and the Second Injury
Fund responsible for a 16 percent permanent partial disability. He
also awarded medical benefits and attorney's fees.
The Commission reversed and made the following findings:
A preponderance of the credible evidence indicates that
the alleged incident that occurred in 1991 was a
recurrence of the 1989 injury. Thus, the Second Injury
Fund is not liable. Furthermore, there is insufficient
evidence of an increase [sic] disability to hold
respondent employer liable [for] any additional benefits.
Therefore, we reverse the decision of the Administrative
Law Judge.
Furthermore, it should be noted that claimant is
presently working. Although claimant contends that he is
entitled to wage loss, a review of the evidence indicates
that claimant has set himself up to earn less than
minimal wage so that he can continue to receive $632 per
month in social security benefits. While claimant should
be commended for returning to work, claimant should not
receive wage loss compensation where he is deliberately
contributing to his loss of wage earning capacity.
Therefore, we reverse the decision of the Administrative
Law Judge.
I think we should reverse and remand because the Commission's
opinion does not make sufficient findings that will allow us to
conduct a meaningful review of the decision made. I will point out
the problems in that regard, but want to first cite some authority
for the rule that requires sufficient findings.
In Clark v. Peabody Testing Service, 265 Ark. 489, 507, 579 S.W.2d 360, 369 (1979), the Arkansas Supreme Court said: "We do
not deem a full recitation of the evidence to be required, so long
as the commission's findings include a statement of those facts the
commission finds to be established by the evidence in sufficient
detail that . . . the reviewing court may perform its function to
determine whether the commission's findings as to the existence or
non-existence of the essential facts are or are not supported by
the evidence."
And in Cagle Fabricating and Steel, Inc. v. Patterson, 309
Ark. 365, 369, 830 S.W.2d 857, 859 (1992), the court cited Jones v.
Tyson Foods, Inc., 26 Ark. App. 51, 759 S.W.2d 578 (1988), and said
that case "held that the Commission's decision did not make
specific findings that an appellate court could review." The
Arkansas Supreme Court then said the Commission's language in Cagle
was "similar to that used in Jones in that it is conclusory and
does not detail or analyze the facts upon which it is based."
See also Wright v. American Transportation, 18 Ark. App. 18,
709 S.W.2d 107 (1986); Hardin v. Southern Compress Co., 34 Ark.
App. 208, 810 S.W.2d 501 (1991); and Cook v. Alcoa, 35 Ark. App.
16, 20-21, 811 S.W.2d 329, 332 (1991), where we said, "In appeals
from the Commission, we cannot indulge the presumption used in
appeals from trial courts . . . that even if the court is correct
for the wrong reason, we will affirm if the judgment is correct."
In the instant case, the injury sustained by the appellant in
1989 while employed by Voss Air Conditioning had been joint-
petitioned, so if the 1991 incident, which occurred while working
for Pierce Brothers, was a recurrence of the 1989 injury þ as the
Commission found þ then Voss would not be liable because of the
joint-petition settlement, and the Second Injury Fund would not be
liable because there was no second injury to cause that liability
to "kick in." Thus, I wonder why the Commission holds "there is
insufficient evidence of an increase [sic] disability to hold
respondent employer liable [for] any additional benefits." There
is only one employer who is a party in this case þ- Pierce Brothers
Construction þ- and if the incident which occurred while appellant
was working for that employer was a recurrence and not an
aggravation þ- or new injury þ- then Pierce was clearly not liable,
Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983),
and the Commission's finding of "insufficient evidence of an
increase disability" to hold Pierce liable is indeed a mysterious
finding. Of course, if we were free to indulge in the presumption
used when reviewing appeals from trial courts, we could probably
square the uneven findings, but that is not our role in appeals
from the Commission, and we should remand when the language used by
the Commission is not sufficient for us to make a meaningful review
of the Commission's decision.
In addition, the last paragraph of the Commission's decision
concerns wage-loss disability in regard to appellant's acceptance
of a wage which was less than he could earn. Again, if the 1991
injury was a recurrence of the 1989 injury, then there can be no
liability on the 1991 employer for the 1989 injury because there
would be no liability on the 1991 employer for wage-loss disability
caused solely by the 1989 injury. But if the Commission is
actually adjudicating wage-loss disability in this case, I think
the finding that the appellant is not entitled to it because "he is
deliberately contributing to his loss of wage earning capacity"
overlooks the provisions of Ark. Code Ann. 11-9-522 (Repl. 1996),
which provides in subsection (b) that if an injured employee has
returned to work at wages equal to or greater than his average
weekly wage at the time of the injury, he shall not be entitled to
a wage-loss disability in addition to his physical impairment
rating; however, as provided in subsection (c) it is the burden of
the employer or his insurance carrier to prove the conditions set
out in (b). For a general discussion of this statute, see Belcher
v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993);
Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406
(1992); Cook v. ALCOA, 35 Ark. App. 16, 811 S.W.2d 329 (1991).
Therefore, while there might be evidence which would support
the denial of wage-loss disability, the findings set out in the
last paragraph of the Commission's decision do not meet the
requirements discussed above for sufficient factual findings that
will allow us to make a meaningful review of the Commission's
decision.
I would reverse and remand to the Commission with directions
that it make sufficient findings of fact that will enable us to
review those findings and determine if they support the
Commission's decision.
Therefore, I dissent from the majority opinion.
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