Rheem Manufacturing Company; Old Republic Insurance Company; and Wausau Insurance Company v. Jerry Thomas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

RHEEM MANUFACTURING CO.; OLD REPUBLIC INSURANCE CO.; and WAUSAU INSURANCE CO.

APPELLANTS

V.

JERRY THOMAS

APPELLEE

CA02-968

March 19, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

F014360; F103329; F103330

AFFIRMED

This is an appeal from a decision of the Workers' Compensation Commission finding that appellee Jerry Thomas proved that he sustained a compensable left-shoulder injury and that he suffered from a compensable occupational disease manifested by an elevated zinc level. Appellants raise three points of appeal: (1) the Commission's finding that appellee proved by a preponderance of the evidence a compensable November 15, 2000, left-shoulder injury, caused by a specific incident, identifiable by time and place of occurrence, causing internal physical harm to his body was erroneous and not supported by substantial evidence; (2) the Commission's finding that appellee sustained a compensable November 15, 2000, left-shoulder injury established by objective medical findings is not supported by substantial evidence; (3) the finding that appellee's last injurious exposure to zinc was subsequent to June 1999 is not supported by substantial evidence.

Appellee has been employed with Rheem for approximately twenty-five years. In 1999, after large levels of zinc were found in appellee's blood, he was moved from a welding position hehad held for almost fifteen years to another position. In 2000, appellee developed problems with his left shoulder, which he attributed to a November 15, 2000, incident. He filed workers' compensation claims for both the zinc exposure and the left-shoulder injury, which Rheem denied. After a hearing, the administrative law judge found in favor of appellee on both claims. Appellants appealed to the full Commission. The Commission affirmed and adopted in part and affirmed in part the decision of the ALJ. From that decision comes this appeal.

Our standard of review is well-settled. 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. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Id. 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. Id.

Appellants' first and second points of appeal will be discussed together because they amount to one argument, which is whether substantial evidence supports the Commission's finding that appellee sustained a compensable left-shoulder injury on November 15, 2000. A compensable injury is defined by Ark. Code Ann. § 11-9-102(4)(a)(i) (Supp. 2002) as "An accidental injury causing internal or external physical harm to the body...arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is `accidental' only if it is caused by a specific incident and is identifiable by time and place ofoccurrence[.]" Section 11-9-102(4)(D) (Supp. 2002) requires that "[a] compensable injury must be established by medical evidence supported by `objective findings' as defined in subdivision (16) of this section." Objective findings are "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102(16) (Supp. 2002).

In the first part of their argument, appellants contend that substantial evidence does not support the Commission's finding that appellee sustained a compensable injury to his left shoulder on November 15, 2000, because the evidence does not support a finding that appellee sustained a specific-incident injury. The ALJ found that appellee met his burden of proof based on the following evidence: appellee testified that on November 15 he had been stacking L-tubes for more than six hours, developed pain, and noticed a knot on his left shoulder. He testified that he put approximately 500 pieces of tubing in each wire basket and filled two baskets an hour. Over a five to six hour period, appellee would have stacked between 5000-6000 pieces and had to lift the tubes above his shoulders in order to fill the baskets. In addition, appellee testified that he felt specific pain that day and that the knot came up when he was stacking L-tubes that day. Appellee reported his shoulder problem to the company nurse on November 15, and an appointment was made for him to see the company doctor, Dr. Carson, who later referred him to Dr. Steven O. Smith.

The medical evidence further revealed that Dr. Carson saw appellee on December 4, 2000, and noted swelling of appellee's shoulder, which he attributed to the arthritis of his AC joint. He opined that appellee's job, which requires overhead lifting, could "conceivably aggravate the arthritis of the AC joint." Dr. Smith first saw appellee on December 29, 2000. Dr. Smith noted that appellee reported injuring his left shoulder while working and lifting an "L2-bin" at work and had been having difficulty with his shoulder over the last six weeks. Dr. Smith diagnosed AC joint arthritis in the left shoulder, performed surgery, and opined that he was "certain that [appellee's]work activity exacerbated his problem." The left shoulder arthroscopy and subacromial decompression surgery revealed a large subacromial spur.

Appellants argue that appellee's testimony indicates "more of a gradual onset injury" rather than a specific-incident injury. They point to the fact that appellee reported that he experienced left-shoulder pain in September 2000. Appellants cite Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997) in support of their argument that appellee did not sustain an accidental injury. Marsha Mikel had worked on an assembly line for several months before being switched to a new assembly line on January 24, 1994, which required her to use big clippers. She testified that after working five hours on the new line, something in her wrist snapped. She reported the injury to her supervisor on the same day, at which time Mikel claimed that her hand appeared swollen. The accident report reflected that the injury was reported on January 29 and that Mikel reported have problems with her hand since she began working for the appellee. The report did not mention swelling, and the supervisor did not testify that Mikel's hand was swollen. Mikel was seen by the company doctor who diagnosed a wrist sprain and possible early carpal tunnel syndrome, but no swelling was noted. The company doctor later referred Mikel to an orthopaedic surgeon who noted that she reported a gradual-onset problem and diagnosed carpal tunnel syndrome.

Reversing the decision of the ALJ, the Commission found that Mikel failed to prove that she sustained a compensable injury. On appeal, the issue was whether any medical evidence existed to support the fact that Mikel sustained an injury due to a specific incident as opposed to her injuries being gradual. We affirmed noting that neither doctor noted swelling as reported by Mikel or that Mikel's carpal tunnel syndrome was caused by a specific incident. We also emphasized the fact that Mikel told the orthopaedic surgeon that her pain was a result of a gradual onset of problems and that her symptoms began shortly after she began working for the appellee.

Unlike Mikel, there is no indication that appellee reported experiencing a gradual onset of problems. Rather, Dr. Smith's December 29, 2000, record indicates that appellee reported that he injured his shoulder while working and lifting a "L2 bin," began experiencing pain, and had had difficulty with it over the last six weeks. In addition, the ALJ classified the injury as an "injury/aggravation." According to the medical evidence, the condition for which appellee sought treatment turned out to be an aggravation of arthritis of the AC joint in his left shoulder, which was asymptomatic until the time of the aggravation. It is well settled that the employer takes an employee as he finds him. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). We conclude that there is substantial evidence to support the Commission's finding that appellee sustained a specific-incident injury on November 15, 2000.

Appellants also complain that there are no objective findings to support a specific incident causing appellee's shoulder problem. The statute only requires objective findings of an injury. See Ark. Code Ann. § 11-9-102(4)(D); Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). Moreover, the company doctor observed swelling. Thus, appellants' argument is without merit.

With respect to the shoulder injury, appellants' final contention is that appellee failed to establish a causal connection between his injury and his job. Dr. Carson only stated that appellee's job which involved overhead lifting could conceivably aggravate the arthritis of the AC joint. This statement, as appellants contend, lacks definiteness. However, Dr. Smith opined that he was certain that the work activity described by appellee exacerbated his problem. It was within the province of the commission to assess the credibility and the weight to be given the evidence. Biles, supra. Thus, we conclude that the Commission's finding of causal connection is supported by substantialevidence.

For their third point of appeal, appellants argue that the finding that appellee's last injurious exposure to zinc was subsequent to June 1999 is not supported by substantial evidence. The medical records indicate that appellee first complained of a problem with copper or zinc poisoning when he sought treatment from Dr. Hughes on June 25, 1999. Dr. Hughes noted that appellee gave a history of having been exposed to copper and copper fumes, and ordered a blood test to determine the claimant's blood toxicity. A first test revealed an elevated zinc level of over 16,000 ug/L. In July 1999, appellee was transferred from his welding position. He was later evaluated by Dr. Kyle on July 22, 1999, who recommended a recheck of appellee's zinc level and that appellee stay away from welding for the time being. The recheck revealed a zinc level of only 685 ug/L.

Based on the above evidence, the ALJ found that appellee established by clear and convincing evidence that his elevated zinc levels were causally related to his employment with appellant Rheem as a welder. The ALJ also addressed appellants' argument that appellee's claim was barred by the statute of limitations. The statute of limitations governing occupational diseases provides that a claim must be filed within two years of the last injurious exposure to the hazards of the disease or infection. Ark. Code Ann. § 11-9-702(a)(2). The ALJ reasoned that:

While the claimant was exposed to this zinc for over a period of years, he also testified that when he returned to work for the respondent following his shoulder surgery, that he returned to work on May 31, 2001, in the welding department. Thus, claimant's last injurious exposure occurred during the calendar year 2001 and this claim for compensation is not barred by the two year statute of limitations.

On appeal to the full Commission, appellants conceded that appellee's claim with regard to the 1999 exposure was not barred by the statute of limitations, but instead argued that the ALJ erroneously concluded that appellee's last injurious exposure was in 2001. The Commission did not adopt the ALJ's finding that appellants failed to establish that appellees's claim was barred by thestatute of limitations. Instead the Commission found that appellants conceded that the claim for exposure to zinc through June 1999 was not barred. The Commission went on to state "we need not reach the factual issue of whether or not the claimant also experienced additional injurious zinc exposure after May 2001 in order to resolve the statute of limitations issue presented in this case." Because the Commission did not adopt the statute of limitations finding, it did not address the ALJ's conclusion that appellee's last injurious exposure occurred in 2001. Thus, appellants' argument is moot.

Affirmed.

Pittman and Robbins, JJ., agree.