Langley v. Danco Constr. Co.

Isaac LANGLEY v. DANCO CONSTRUCTION COMPANY
and Bituminous Insurance Companies

CA 96-991                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions III & IV
                 Opinion delivered May 21, 1997


1.   Workers' compensation -- challenge to sufficiency of evidence
     -- factors on review. -- Where the sufficiency of the evidence
     is challenged on appeal in a workers' compensation case, the
     appellate court views the evidence in the light most favorable
     to the findings of the Commission and will affirm if those
     findings are supported by substantial evidence; substantial
     evidence is such relevant evidence as a reasonable mind might
     accept as adequate to support a conclusion; if reasonable
     minds could reach the Commission's conclusion it must be
     affirmed.

2.   Workers' compensation -- Commission has duty to weigh medical
     evidence -- Commission has duty to determine witness
     credibility. -- The Commission has the duty of weighing
     medical evidence as it does any other evidence, and the
     resolution of conflicting evidence is a question of fact for
     the Commission; the credibility of witnesses and the weight to
     be given their testimony are matters exclusively within the
     province of the Commission. 

3.   Workers' compensation -- Commission found compensable injury
     did not aggravate appellant's preexisting condition --
     Commission's determination supported by substantial evidence.
     -- Where the Commission noted that appellant testified he had
     never had problems with his left hip prior to the compensable
     injury,  although the medical evidence proved otherwise, the
     Commission determined that appellant's credibility was
     diminished as a result of his testimony, which was contrary to
     numerous medical reports generated; there was substantial
     evidence to support the Commission's determination that the
     July 13, 1993, compensable injury did not aggravate
     appellant's preexisting left hip condition and was not the
     major cause of the resulting left hip condition; affirmed.


     Appeal from Arkansas Workers' Compensation Commission;
affirmed.
     Barron & Barron, P.A., by:  Thomas L. Barron, for appellant.
     Anderson & Kilpatrick, by:  Randy P. Murphy, for appellees.

     Olly Neal, Judge.
     Appellant was employed as a laborer by Danco Construction
Company on July 13, 1993, when he sustained injuries after being
thrown approximately fifteen feet from a loader.  Appellant was
hospitalized for a week and received medical treatment from Dr.
Fred Nagel.  Dr. Nagel's notes reflect that appellant initially
made complaints of pain mostly in the sternum and right hip area. 
Appellees accepted compensability of appellant's right hip
condition and paid related medical and temporary total disability
benefits.  Appellant sought temporary total disability and medical
benefits based upon his left hip condition, which eventually
required a total hip replacement.  Appellees controverted
appellant's entitlement to benefits for his left hip condition. 
After conducting a hearing on the compensability of appellant's
medical and temporary total disability benefits for the treatment
of the left hip, the ALJ found that the July 13, 1993, compensable
injury aggravated the appellant's preexisting left hip condition so
as to entitle him to payment of related medical and disability
benefits.  Appellees appealed to the Commission, which reversed the
ALJ's decision.  Appellant argues that the Commission's decision is
not supported by substantial evidence.  We find substantial
evidence in support of the Commission's order and affirm.  
     Where the sufficiency of the evidence is challenged on appeal
in a workers' compensation case, we view the evidence in the light
most favorable to the findings of the Commission and will affirm if
those findings are supported by substantial evidence.  City of Ft.
Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). 
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.  Id.  The issue
is not whether we might have reached a different result or whether
the evidence would have supported a contrary finding; if reasonable
minds could reach the Commission's conclusion we must affirm its
decision.  Welch's Laundry and Cleaners v. Clark, 38 Ark. App. 223,
832 S.W.2d 293 (1992).
     Appellant contends that the condition of his left hip is the
result of an aggravation of a preexisting condition caused by the
compensable injury that occurred July 13, 1993.  Arkansas Code
Annotated  11-9-102(5)(F)(ii)(b)  (Repl. 1993), provides:
          If any compensable injury combines with a pre-
          existing disease or condition or the natural
          process of aging to cause or prolong disability
          or a need for treatment, permanent benefits 
          shall be payable for the resultant condition 
          only if the compensable injury is the major
          cause of the permanent disability or need for
          treatment.

Major cause means more than fifty percent of the cause.  Ark. Code
Ann.  11-9-102 (14)(A) (Repl. 1993).  Further, a finding of major
cause shall be established according to the preponderance of the
evidence. Ark. Code Ann.  11-9-102 (14)(B) (Repl. 1993).
     At the hearing before the ALJ, appellant testified that he was
injured at work in 1986, when a ditch caved in on him, and that he
had limped off and on as a result of injuries sustained in the
accident over the years.  Appellant then testified that he had
never experienced problems with his hip prior to July 13, 1993. 
However, a medical report written by Dr. DeLoach on December 22,
1992, detailed appellant's complaints of left thigh pain and some
left lower back pain, and also noted that appellant did not relate
a specific history of injuring himself at work.  Dr. DeLoach also
saw appellant on January 8, 1993, and January 25, 1993, and on both
occasions noted appellant's complaints of left leg pain.
     Appellant was referred to Dr. Jordan for treatment relative to
the complaints of back and left leg pain.  Dr. Jordan examined
appellant on January 28, 1993, and suggested that hip films be
made.  Dr. Jordan noted that he was certain that a great deal of
appellant's problems were coming from hip joint disease rather than
lumbar spine problems.  
     Upon admission to the hospital after being injured on July 13,
1993, appellant complained of pain across his anterior chest, lower
back, and in the right hip.  X-rays indicated advanced degenerative
changes in the left acetabulum and hip, and swelling over the right
buttock.  In notes dated July 23, and July 30, 1993, Dr. Nagel
noted appellant's complaints of pain over the right buttock,
sternum and the right hip.  Appellant did not complain of pain to
the left hip until September 3, 1993, approximately seven weeks
after the July 13, 1993, injury.  
     Appellant points to the testimony of Drs. Pearce and Nagel
that the lapse of time between the compensable injury and the first
complaint of left hip pain could be explained by the fact that
patients with multiple injuries might not become aware of an injury
until others have resolved.  We note that the Commission has the
duty of weighing medical evidence as it does any other evidence,
and the resolution of conflicting evidence is a question of fact
for the Commission.  Public Employee Claims Div. v. Tiner, 37 Ark.
App. 23, 822 S.W.2d 400 (1992).  Further, the credibility of
witnesses and the weight to be given their testimony are matters
exclusively within the province of the Commission.  Shaw v.
Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991).
     Although there was a probable explanation offered to explain
appellant's delay in reporting left hip pain, it is the province of
the Commission to determine the weight to be assigned all evidence. 
The Commission noted that appellant testified he had never had
problems with his left hip prior to the compensable injury, 
although the medical evidence proved otherwise.  The Commission
determined that appellant's credibility was diminished as a result
of his testimony which was contrary to numerous medical reports
generated.
     We find substantial evidence to support the Commission's
determination that the July 13, 1993, compensable injury did not
aggravate appellant's preexisting left hip condition and was not
the major cause of the resulting left hip condition.
     Affirmed.
     Pittman, Jennings, and Bird, JJ., agree.
     Griffen and Roaf, JJ., dissent.


             Andree Layton Roaf, Judge, dissenting.
     I respectfully dissent from the majorityþs opinion because I
do not agree that the Commissionþs finding that Langley did not
sustain a compensable left hip injury is supported by substantial
evidence.
     The majority concludes that Langleyþs seven-week delay in
reporting left hip pain, coupled with his þuntruthfulþ denial that
he had experienced problems with his left hip prior to the accident
of July 13, 1993, constitutes substantial evidence to support the
Commissionþs findings.  However, the majority, and the Commission,
have disregarded not only the explanation of both treating
physicians regarding the likely cause for the delay, but also the
fact that the nature of Langleyþs accident is indeed consistent
with the explanation suggested by his physicians.  Here, Langley
was thrown approximately twenty feet, knocked unconscious, was
hospitalized for one week, and suffered visible, external injuries
to both his chest area (multiple contusions) and his right hip and
buttock (large hematoma).  It is significant that Langleyþs right
hip area was still swollen and causing him significant pain more
than five weeks after the accident, such that his doctor considered
that surgical draining of the area might be required.
     I must also take issue with the conclusion that Langley was
untruthful when he denied that he had problems with his left hip
before the accident.  Nowhere in the medical records of Langleyþs
visits to three different physicians in 1992 and prior to the
accident in 1993 is there any indication that Langley ever
complained of hip pain.  Although he was diagnosed with hip joint
disease, Langley consistently complained of left leg and lower back
pain, not hip pain, to the several physicians who examined him
during this period.
     Finally, it was uncontroverted that Langleyþs preexisting hip
disease did not prevent him from performing his job as laborer, a
job he had held with this employer for some twenty-four years until
the accident of July, 1993.
     For the foregoing reasons, I do not believe that reasonable
minds could reach the Commissionþs decision that this man, thrown 
twenty feet through the air, and severely contused and bruised on
both the front and back of his body, did not suffer an aggravation
to his preexisting hip condition in this accident.
     Griffen, J., joins.