Wausau Insurance Companies v. Multistaff Leasing, Inc., Gallagher Bassett Services, Inc./Legion Insurance Company and Rita Blasingame

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

WAUSAU INSURANCE COMPANIES

APPELLANTS

v.

MULTISTAFF LEASING, INC., GALLAGHER BASSETT SERVICES INC./LEGION INSURANCE COMPANY & RITA BLASINGAME,

APPELLEE

CA03-546

NOVEMBER 5, 2003

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

NOS. F008967, F009694, & F105066

AFFIRMED

Sam Bird, Judge

The claimant in this workers' compensation case, Rita Blasingame, sustained a compensable injury to her back on April 8, 2000, while lifting a patient at the Fort Smith Nursing Center. She again suffered a compensable injury in the employment of the Fort Smith Nursing Center on July 6, 2000. At the time of Blasingame's first injury, the Fort Smith Nursing Center had Legion Insurance Company (Legion) as its provider of workers' compensation insurance; however, when Blasingame suffered her second injury, Wausau Insurance Company (Wausau) had become the workers' compensation insurance provider. After a hearing on this matter, the administrative law judge held that Blasingame's second injury was a recurrence of her April 8, 2000, injury and ordered that Legion, the insurance carrier responsible at the time of the April 8, 2000, injury, was liable for all benefits due as a result of both injuries. Legion appealed the ruling to the Workers' Compensation Commission. The Commission held that the July 6, 2000, episode was an aggravation of Blasingame's April 8, 2000, injury, thus reversing the law judge. The Commission ordered that Legion should share equally with Wausau the liability for Blasingame's benefits.

Wausau appeals the Commission's decision and presents three points for reversal. First, it contends that the Commission misapplied the law when it did not make a finding of whether the July 6, 2000, injury resulted from an independent intervening cause, finding only that it was an aggravation. Second, they contend that even if the Commission had found that the July 6, 2000, injury resulted from an independent intervening cause, such a finding would have been contrary to law and facts. Finally, they contend that substantial evidence exists to clearly establish that the July 6, 2000, injury was the logical consequence of Blasingame's April 8, 2000, injury. We affirm the decision of the Commission.

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. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding--rather, we affirm if reasonable minds could reach the Commission's conclusion. Sharp County Sheriff's Dep't v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001).

Wausau first contends that the Commission erred when it did not make a finding of whether the July 6, 2000, injury resulted from an independent intervening cause, but instead found only that it was an aggravation of the April 8 injury. In its brief, Wausau essentially argues that the Commission misapplied the law. We disagree.

In Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983), the appellants similarly argued that the Commission misapplied the true test for determining liability. In Bearden, we stated:

After a careful review of our cases on this subject we cannot agree that the courts and the Commission have applied differing connotations of words employed or that they have not consistently applied the same principle announced in Williams. We conclude that in all of our cases in which a second period of medical complications follows an acknowledged compensable injury we have applied the test set forth in Williams --that where the second complication is found to be a natural and probable result of the first injury, the employer remains liable. Only where it is found that the second episode has resulted from an independent intervening cause is that liability affected. While there may be some variance in the words used to describe the principle, there has been no departure from the basic test, i.e., whether there is a causal connection between the two episodes. Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W.2d 315 (1960); Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528 (1963); Home Ins. Co. v. Logan, 255 Ark. 1036, 505 S.W.2d 25 (1974). . . .

In Williams and Logan the issue of causal connection was described by use of the words "natural and probable consequences" and "intervening cause." We conclude that in the other cited cases it is clear the court, although still applying the causal relation test, described "natural and probable consequences" as a "recurrence of the first injury" and "intervening contributing cause" as "aggravation of a preexisting condition." We further conclude that in all our cases the test was and is the same: Is the second episode a natural and probable result of the first injury or was it precipitated by an independent intervening cause? We think that the Commission has correctly applied that test to the case now before us, regardless of the terminology employed.

Id. at 7 Ark. App. 65, 72, 644 S.W.2d 321, 324-25.

In the present case, the Commission, with regard to the injuries sustained by Blasingame on both April 8, 2000, and July 6, 2000, stated the following:

Following the claimant's initial injury on the morning of April 8, 2000, she was able to complete her shift and go home and do yard work. The claimant returned to full-time regular duty employment when the second incident occurred on July 6, 2000. The claimant's injury on that date was the result of a specific incident, and was obviously more significant than that which occurred in April. Immediately following the July incident, the claimant lost the ability to move and had to be placed in a wheelchair by her co-workers. She testified that the intensity of her pain permanently increased as a result of this incident, and she also experienced a loss of bladder control, which was a symptom she had never experienced prior to that time. Based on the above evidence, we find that claimant's preexisting condition was aggravated by the July 2000 work-related accident.

An aggravation is a new injury resulting from an independent incident. See Pinkston v. General Tire & Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990). The independent incident must be shown to be work-related to establish compensability. In addition, under Ark. Code Ann. §11-9-102(5)(A)(i), it must be shown that the accidental injury was caused by a specific incident identifiable by time and place of occurrence. 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 the first 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 Bros. Constr., 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).

While we acknowledge that the Commission did not specifically state that Blasingame's injury on July 6, 2000, was the result of an independent intervening cause, we hold that the findings of the Commission as stated above clearly establish as much. The Commission made clear that the July 6, 2000, injury was the result of a specific incident, and that it was obviously more serious than the April 8, 2000, injury. Furthermore, the Commission found that claimant's preexisting condition was aggravated by the July 2000 work-related accident. As stated above, an injury resulting from an independent intervening cause has also been referred to as an aggravation, thus, the aggravation of a preexisting condition and an independent intervening cause are one and the same. See Bearden Lumber Co. v. Bond, supra. Given the findings of the Commission, and after an examination of Bearden Lumber Co. v. Bond and the cases cited above, we hold that it is clear that the Commission correctly applied the law and that it found that the July 6, 2000, injury was an independent intervening cause, in spite of the fact that it did not specifically use the words, "independent intervening cause."1

As for Wausau's points two and three, we will address them together. Wausau argues that any finding that the July 6, 2000, injury resulted from an independent intervening cause is contrary to law and fact, and that substantial evidence exists clearly establishing the July 6, 2000, injury as the logical consequence of Blasingame's April 8, 2000, injury. We disagree.

The Commission found by implication that the July 6, 2000, injury was an independent intervening cause which resulted in an aggravation of the April 8, 2000, injury. They stated specifically, "based on the above evidence, we find that claimant's preexisting condition was aggravated by the July 2000 work-related accident." In making this finding, the Commission relied on evidence that Blasingame had returned to full-time regular duty employment; that Blasingame reported to a nurse on May 23, 2000, that she was working sixteen hour shifts at the nursing center while also working on her paper route, which required her to awake at 3:30 each morning and work until midnight; and that Blasingame testified that when she initially returned to work, she was on restricted duty working four hours a day; however, by the time of the July 6, 2000, injury, she was working eight hour days. We recognize that there is testimony by Blasingame that also indicates that she was on light duty when the July 6, 2000, injury occurred; however, as noted previously, 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 Coop. v. Biles, supra. Next, the Commission noted that the July 6, 2000, injury was the result of a specific incident and that the incident was obviously more significant than the previous incident that occurred in April. Clearly, the testimony of Blasingame could support this interpretation of the evidence, given the fact that she testified that when she bent over to pick up a piece of paper, she felt her back pop and suffered pain that was more intense, in addition to symptoms such as loss of bladder control that she did not experience following her April 8 injury. In further support of this evidence, Blasingame thought that her back was broken after the July 6, 2000, injury. In reaching our decision, as previously noted, the issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding--rather, we affirm if reasonable minds could reach the Commission's conclusion. Ozark Acres Improvement Dist., supra. Abiding by that rule, as we must, we hold that there was sufficient evidence to support the finding of the Commission.

Affirmed.

Gladwin and Robbins, JJ., agree.

1 In considering a subsequent nonwork-related injury, the supreme court held in Davis v. Old Dominion Freight Lines, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000) that Ark. Code Ann. 11-9-102(5)(F)(iii) (Repl. 1996) was a codification of preexisting case law and the test of Guidry v. J. & R. Eads Constr. Co., 11 Ark. App. 219, 223, 669 S.W.2d 483, 485 (1984). Arkansas Code Annotated section 11-9-102(5)(F)(iii) demonstrates that the focus of the term "independent intervening cause" is a more applicable term in the context of nonwork-related injury following a work-related injury, which is not the case in the present appeal. The present appeal concerns two work-related incidents resulting in injury.