Dependable Air Conditioning Company and State Automobile Insurance Company v. Thomas Ford

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION II

DEPENDABLE AIR CONDITIONING COMPANY and STATE AUTOMOBILE INSURANCE CO.

APPELLANTS

v.

THOMAS FORD

APPELLEES

CA02-892

MAY 7, 2003

APPEAL FROM THE WORKER'S COMPENSATION COMMISSION

[E804697, E606890]

AFFIRMED

Appellant employer, Dependable Air Conditioning Company, and appellant, State Automobile Insurance Co., appeal the Workers' Compensation Commission's awarding benefits after finding that appellee employee's injury aggravated a preexisting condition. We find no error and affirm.

This case returns to us after remand. See Ford v. Dependable Air and State Farm Insurance, CA01-685 (Dec. 12, 2001). On the first appeal, appellee, Thomas L. Ford, appealed the decision of the Arkansas Workers' Compensation Commission finding that he had failed to prove by a preponderance of the evidence that he was entitled to surgery performed March 29, 1999, and that he was not entitled to temporary total disability benefits from February 23, 1999, through August 2, 1999. It was undisputed that Mr. Ford sustained compensable injuries on April 15, 1998, while he was driving a van for his employer and was struck from the rear in an automobile accident.

However, the Commission originally denied benefits based on its finding that Mr. Ford suffered from stenosis, a degenerative condition which pre-existed the automobile accident. The Commission stated that while the automobile accident may have exacerbated the pain associated with the stenosis, the accident was not responsible for the stenosis itself, and therefore was not compensable. Because the Commission applied the incorrect legal standard, we reversed and remanded the entire matter to the Commission for findings of fact. Specifically, we noted that findings of fact were required that related to whether the April 15, 1998, automobile accident aggravated the pre-existing degenerative condition and whether the compensable injury was the major cause of the permanent disability or need for treatment. See Ark. Code Ann. § 11-9-102(F)(ii)(b) (Repl. 1996 & Supp. 2001).

On remand, the Commission found that Mr. Ford's injury did aggravate his preexisting condition and awarded benefits. Dependable Air and State Automobile Insurance Company brought this appeal from that decision. Appellants assert two arguments on appeal. First, they argue that the Commission erred in ruling on the issue of whether or not Mr. Ford's spinal stenosis surgery was compensable because of an aggravation of a preexisting condition without remanding the matter back to the administrative law judge (ALJ) for supplementation of the record. In support of their argument, appellants cite decisions where the Commission remanded matters back to the ALJ after the Court of Appeals remanded cases to the Commission.

However, they cite no authority for the proposition that the Commission is mandated to remand cases, and we reject that argument. We do not consider an argument on appeal which is not supported by convincing argument or authority unless it is apparent without further research that the asserted error is well taken. Weeks v. Coca Cola Bottling Co., 270 Ark. 151, 604 S.W.2d 566 (Ark. App.1980).

Furthermore, appellants candidly state that they are seeking the opportunity to present evidence and supplement the record in order to establish that Mr. Ford's automobile accident did not aggravate his spinal stenosis and that the March 29, 1999, surgery was not compensable. They claim that this issue was not developed initially because the issue before the ALJ was whether or not the surgery was a direct result of the compressed fractures in the lumbar caused by the automobile accident or whether the surgery was solely for the purpose of resolving a pre-existing disability. They claim that the record before the Commission was "void of any defense to an allegation of aggravation of a pre-existing condition because it was not an issue when the evidence was being presented to the ALJ."

Appellants are mistaken when they claim that Mr. Ford's preexisting condition was not at issue. Appellants' abstract indicates the hearing before the ALJ was "on additional temporary total disability benefits and additional medical expense" and that their defense to Mr. Ford's injury was "that the lumbar surgery is stenosis, a preexisting major cause."

A pre-existing disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Comm. v. Cox, 302 Ark. 69, 787 S.W.2d 64 (1990); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). In workers' compensation law, the employer takes the employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable. Nashville Livestock, supra.; Ark. Power & Light Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959).

The aggravation of a pre-existing, non-compensable condition by a compensable injury is itself compensable. See Hubley v. Best Western Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996). An aggravation is a new injury resulting from an independent incident. See MaverickTransp. v. Buzzard, 69 Ark.App. 128, 10 S.W.3d 467 (2000). A temporary aggravation of a preexisting condition is a compensable injury. See Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996). When an accidental injury aggravates a prior condition, an employer is liable for all of the consequences naturally flowing from that incident unless the aggravation is caused by an independent intervening event. See Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

Second, appellants argue that the Commission's findings are not supported by substantial evidence. This court reviews decisions of the Workers' Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). 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. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Cooperative v. Biles, 77 Ark. App. 1, 4-5, 69 S.W.3d 899, 902 (2002). Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000).

In explaining its findings in this case, the Commission noted that on September 8, 1997, Dr. Russell, who was Mr. Ford's treating physician, reported that he could "say unequivocally that I donot think surgery is warranted on the cervical spine." However, on August 3, 1998, after the April 1998 accident, Dr. Russell noted significant changes in Mr. Ford's spine. By April 1999, Dr. Russell stated that Mr. Ford's present condition appeared to be an aggravation of a preexisting condition. This opinion was reitereated by Dr. Allison in May 1999, when he found that "it is unlikely that his spinal stenosis is completely due to his accident. It is more likely that it was aggravated by the accident."

Based on the evidence before it, we cannot say that the Commission's finding that the injury that Mr. Ford suffered aggravated a preexisting condition and that this aggravation required the surgery was not supported by substantial evidence. Accordingly, we affirm.

Hart and Griffen, JJ., agree.