Richard Washburn v. Nabholtz Construction

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

RICHARD WASHBURN,

APPELLANT

V.

NABHOLTZ CONSTRUCTION,

APPELLEE

CA01-467

DECEMBER 12, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION,

NO. E908564

AFFIRMED

Appellant, Richard Washburn, brings this appeal from a decision of the Arkansas Workers' Compensation Commission that denied his claim for additional temporary total disability benefits and expenses of medical treatment, based upon a finding that his current period of disability was a consequence of a noncompensable injury that was the result of an independent intervening cause. On appeal, Washburn argues that the Commission's order is not supported by substantial evidence. We hold that substantial evidence supports the Commission's decision, and we affirm.

Washburn sustained a compensable accidental injury on June 14, 1999, while employed by Nabholtz Construction Company as a heavy equipment operator, when he twisted his right knee while laying pipe in a ditch. On October 26, 1999, Dr. RobertTomlinson performed arthroscopic surgery on Washburn's injured knee. Since the injury

was accepted as compensable, Nabholtz paid for the arthroscopic surgery and paid Washburn temporary total disability benefits during the healing period, which commenced October 26, 1999.

Following the surgery, Washburn saw Dr. Tomlinson several times. The last visit was on November 5, 1999, when Dr. Tomlinson gave Washburn a release to return to work, subject to certain restrictions. On November 16, three weeks after the arthroscopic surgery, Washburn slipped and fell at a Wal-Mart store, again injuring his right knee. Following the slip and fall, Washburn returned to Dr. Tomlinson for treatment, but did not return to work. Nabholtz discontinued the payment of benefits on the ground that Washburn had sustained an injury as a result of his fall at Wal-Mart, which it considered to be an independent intervening cause.

Washburn filed a claim for additional benefits, and a hearing was conducted. The administrative law judge ruled that Washburn had not shown by a preponderance of the evidence that his injury at Wal-Mart was a recurrence of his original injury and that his request for continuing temporary benefits and medical treatment expenses should not be granted. The full commission affirmed that decision and adopted the opinion of the administrative law judge.

For reversal, Washburn contends that the Commission erred in finding that there was an independent intervening cause that precluded his entitlement to additional medical benefits after the Wal-Mart incident. He argues that the preponderance of the evidencesupports the finding of a causal connection between the two injuries based on the fact that the slip occurred three weeks after the arthroscopic surgery, that his knee was weak due to the work-related injury, and that his knee simply "gave out" on him. Thus, he contends that he merely suffered a recurrence of his June 19 injury.

The Commission adopted the administrative law judge's finding that Washburn had failed to prove by a preponderance of the evidence that his need for medical treatment after November 16, 1999, was causally related to the June 14, 1999, injury. We hold that this finding is supported by substantial evidence.

The standard of review in Workers' Compensation Commission cases is well settled. In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. Moreover, we will not reverse the Commission's decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Id.

As the appellee, Nabholtz, notes in its brief, our analysis of the issue in this case must begin with Ark. Code Ann. § 11-9-102(4)(F)(iii)(Supp. 2000), which states:

Under this subdivision (4)(F), benefits shall not be payable for a conditionwhich results for a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.

In Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000), the Arkansas Supreme Court held that this statute did not repeal prior law on the subject of intervening injuries, but, instead, simply codified pre-Act 796 case law, specifically the test set forth in Guidry v. J & R Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). In Guidry, we held that the question is whether there is a causal connection between the primary injury and the subsequent disability, and, if there is a connection, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant that is unreasonable under the circumstances.

In applying these standards to the case at bar, the Commission concluded that there was no causal connection between Washburn's June 19 compensable injury and his slip and fall at Wal-Mart on November 16. The substantial evidence supporting this conclusion is found, first, in Dr. Tomlinson's medical records relating to his treatment of Washburn. These records reflect that Dr. Tomlinson examined Washburn on October 29, 1999, three days following the arthroscopic surgery, and reported that Washburn stated that "his knee felt great." On November 5, Dr. Tomlinson again examined Washburn and reported that Washburn was "doing well." The doctor also reported that he was pleased with Washburn's progress and released him to return to work subject to restrictions of no lifting, climbing, or carrying more than 40 pounds.

The Wal-Mart incident occurred eleven days later, and when Washburn returned to Dr. Tomlinson on November 24, the doctor noted complaints of pain and noted that Washburn reported that his knee "is not back to where it was postoperatively." In a December 8 report, Dr. Tomlinson stated that Washburn "has not improved since his slip and fall while at Wal-Mart on November 16, 1999. Previous to this, he was virtually pain free." In a December 10 report, Dr. Tomlinson explained the relationship between the two injuries:

[T]his is not the same injury as a result of Mr. Washburn's work-related injury. This is a separate incident which has caused his current condition, which I think may be a meniscal versus articular injury. He was doing extremely well following the arthroscopy as noted in his 11-5-99 visit, ten days following his surgery, he was doing extremely well with minimal complaints. In fact, he continued to improve until he injured his knee at Wal-Mart.

I find that these are two distinct different problems.

If Mr. Washburn's symptoms continue, I would recommend a diagnostic arthroscopy with evaluation and treatment of his meniscal and articular cartilage.

I would anticipate that without the accident, Mr. Washburn would be able to return to work without any restrictions at this time.

In a Form AR-3 Physician's Report filed on February 5, 2000, Dr. Tomlinson noted under the heading "Diagnosis," that "[w]ithout the recent reinjury it is likely Richard could have returned to work with restrictions on Nov. 17, 99."

There is no medical evidence presented that even suggests a causal relationship between the two injuries. The Commission obviously gave weight to Dr. Tomlinson's report and opinion in finding that there was no causal relationship between Washburn's knee injury on June 14, 1999, and his slip at Wal-Mart on November 16, 1999. This court recognizedthe role medical evidence plays in the Commission's decisions in Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 4, 751 S.W.2d 15, 16 (1988) stating:

It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. The testimony of medical experts is an aid to the Commission in its duty to resolve issues of fact. It has a duty to use its experience and expertise in translating that testimony into findings of fact.

Washburn's own testimony supports the Commission's conclusion that there was no causal connection between the two injuries. He agreed that he told Dr. Tomlinson that his knee felt great on October 29, and that Dr. Tomlinson was correct in his November 5 assessment that Washburn was "doing extremely well with very minimal complaints." Washburn acknowledged that he first believed that he had slipped on something like shampoo, but changed his mind and, instead, believed that the slip was caused by a weakness in his knee when he was informed by Wal-Mart that there was nothing on the floor. However, there is no evidence in the record that the slip was caused by a weakness in his knee. The medical evidence presented shows that Washburn's knee was healing prior to his second injury. In fact, Dr. Tomlinson released Washburn to return to work on November 5, 1999, with the restrictions of no lifting or carrying greater than forty pounds and no climbing. Dr. Tomlinson noted that there remained a trace of effusion in Washburn's knee, although he was deemed to have full range of motion. There was no medical evidence or testimony presented that Washburn's knee was weak enough to just "give out." Furthermore, Washburn reported the incident to a Wal-Mart store manager and questioned whether the store had any insurance to cover his medical bills, which is proof that he feltWal-Mart was responsible for the injury.

Viewing all the evidence in the light most favorable to the Commission's findings, there is substantial evidence to support the Commission's decision. Dr. Tomlinson's medical reports state that a separate incident, apart from the work-related incident, caused the second injury and his current condition. The Commission found these reports to be reliable and held Washburn's injuries were not a recurrence of the prior injury. We hold that there is substantial evidence to support the Commission's findings; accordingly, we affirm.

Affirmed.

Jennings and Roaf, JJ., agree.