Steven H. Anderson v. Roy Ross Ford Lincoln Mercury

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

STEVEN H. ANDERSON

APPELLANT

V.

ROY ROSS FORD LINCOLN MERCURY

APPELLEE

CA01-813

June 5, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E812077]

AFFIRMED

The appellant in this workers' compensation case was employed by the appellee automobile dealership when he began experiencing back symptoms on July 20, 1998. Appellant's symptoms were sufficiently severe that he underwent back surgery on October 22, 1998. He filed a claim for benefits asserting that he sustained a compensable aggravation of a pre-existing back condition on July 20, 1998. The Commission denied benefits, finding that the incident on July 20, 1998, was not an aggravation of appellant's pre-existing back condition but was instead a recurrence of long-standing back problems. From that decision, comes this appeal.

For reversal, appellant contends that the Commission erred in failing to conduct a de novo review of the decision of the administrative law judge; in finding that the incident of July 20, 1998, was a recurrence of appellant's pre-existing back condition rather than an aggravation thereof; and in failing to consider appellee employer's acceptance of two prior back injuries as compensable in finding that the July 20 incident was a recurrence. We affirm.

The record shows that this case was heard by an administrative law judge who issued an opinion denying benefits on October 24, 2000. In his opinion, the administrative law judge found, inter alia, that the incident on July 20, 1998, was a recurrence rather than an aggravation of appellant's pre-existing back problems. Appellant filed a notice of appeal to the full Commission, asserting that the opinion of the administrative law judge was contrary to the evidence and the law. On May 16, 2001, the Commission issued an opinion stating that it had carefully conducted a de novo review of the entire record; that it found that the findings and conclusions of the administrative law judge were correct; and that it adopted the decision of the administrative law judge as the decision of the full Commission on appeal.

Appellant asserts, without citation to authority, that the Commission erred in adopting the findings of the administrative law judge. We do not agree. It is true that the Commission has the duty to make findings of fact according to a preponderance of the evidence and does not merely review the decision of the administrative law judge for error. Thornton v. Bruce, 33 Ark. App. 31, 800 S.W.2d 723 (1990); Jones v. Tyson Foods, 26 Ark.App. 51, 759 S.W.2d 578 (1988). However, it is well-settled that, after conducting its de novo review, the Commission is permitted to adopt the administrative law judge's decision, which has the effect of making the findings and conclusions of the administrative law judge the findings and conclusions of the Commission. ITT/Higbie Manufacturing v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991); see Odom v. Tosco Corp., 12 Ark. App. 196, 672 S.W.2d 915 (1984). In the present case, the Commission's opinion recites that it made a de novo review of the record, and we will not presume otherwise. See Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991).

Next, appellant contends that the evidence is insufficient to support the Commission's finding that the incident of July 20, 1998, was a recurrence of appellant's pre-existing back condition rather than an aggravation. In determining the sufficiency of the evidence to support the findings of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we will affirm if those findings are supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Thompson v. Washington Regional Medical Center, 71 Ark. App. 126, 27 S.W.3d 459 (2000). The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Id.

In cases where a second period of medical complications follows an acknowledged compensable injury, the employer at the time of the acknowledged compensable injury remains liable if the second complication is found to be a natural and probable result of thefirst injury. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Such a complication is called a recurrence. See Weldon v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179 (1996). Only where it is found that the second episode has resulted from an independent intervening cause is that liability affected. Such a new injury resulting from an independent intervening cause is called an aggravation. Farmland Insurance Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). The basic test is whether there is a causal connection between the two episodes. Bearden Lumber Co. v. Bond, supra. In the present case, there was evidence that appellant had a compensable back injury while working for a different employer in 1983. Diagnostic studies conducted following this first injury indicated that appellant had a ruptured disc at L4-5, but appellant elected to be treated conservatively. There was also evidence that appellant continued to have incapacitating relapses (including incidents that the present employer accepted as compensable and for which it paid benefits), and was neither pain nor symptom free from 1983 until July 20, 1998, when he noticed the onset of back pain after assuming an unusual position while working on a vehicle. The pain was not severe, and it was not until several days afterward that appellant sought medical treatment. After informing his physician that he was tired of dealing with the pain, appellant then underwent back surgery to treat a disc herniation at L4-5. Dr. Foley, a neurosurgeon, testified that appellant's clinical examinations from 1983 and 1998 were essentially the same. We hold that the Commission's finding that appellant suffered a recurrence rather than a new injury is supported by substantial evidence.

Finally, appellant contends that the Commission erred by failing to consider appellee employer's acceptance of two prior back injuries as compensable in finding that the July 20 incident was a recurrence. Appellant summarizes his argument as follows:

The Administrative Law Judge and the Commission erred in failing to hold the employer liable because the employer had accepted compensability on the previous two back injuries and if the employer had accepted those two claims, they should not now be permitted to skip those two and go back fifteen years earlier and say that his condition was as a result of 1983 injury [sic].

We are unable to address this argument on appeal. First, despite appellant's assertion to the contrary, it is clear from the record that appellant did not argue to the administrative law judge that the employer's acceptance of prior claims precluded it from asserting that the latest incident was a recurrence, but instead merely remarked that the employer had been inconsistent in so doing. It is a basic rule of appellate procedure that a party cannot change arguments on appeal, and we do not address arguments that were not raised below. Holloway v. Stuttgart Regional Medical Center, 62 Ark. App. 140, 970 S.W.2d 301 (1998). Second, although appellant's argument is presumably based generally on principles of estoppel, he neither cites relevant authority nor offers convincing argument for his assertion. See Matthews v. Jefferson Hospital Association, 67 Ark. App. 55, 991 S.W.2d 629 (1999).

Affirmed.

Crabtree and Neal, JJ., agree.