Southwire Specialty Production, Inc. and Old Republic Insurance Company v. Anthony Lackey

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

SOUTHWIRE SPECIALTY PRODUCTION, INC. and OLD REPUBLIC INSURANCE COMPANY

APPELLANTS

V.

ANTHONY LACKEY

APPELLEE

CA04-586

FEBRUARY 9, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F205301]

AFFIRMED

Karen R. Baker, Judge

Appellants, Southwire Specialty Production, Inc., and Old Republic Insurance Company, challenge the Workers' Compensation Commission's award of benefits to appellee, Anthony Lackey, for an aggravation of a pre-existing pulmonary condition, claiming that the award is not supported by substantial evidence. We find no error and affirm.

When reviewing a decision of the Arkansas Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The issue is not whether this court might have reached a different result from the Commission; the Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Horticare Landscape Mgmt. v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002); Wheeler Constr., supra.

In workers' compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003). An aggravation of a preexisting noncompensable condition by a compensable injury is, itself, compensable. Oliver v. Guardsmark, 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). An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996).

If the aggravation/new injury is an accidental injury, it must meet certain criteria to establish compensability. It must be (1) an independent incident, (2) work-related, and (3) caused by a specific incident identifiable by a time and place of occurrence. See Ark. Code Ann. § 11-9- 102(4)(A)(i) (Repl.2002); Farmland Ins. Co. v. DuBois, supra. An injury does not have to be accidental in order to qualify as an aggravation/new injury; it must, however, fall within one of the definitions of a compensable injury as set forth in Ark. Code Ann. § 11-9-102(4)(A). 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 Mgm't, 343 Ark. 276, 33 S.W.3d 167 (2000).

Appellee sought benefits as a result of injuries arising out of and in the course of employment due to exposure to epoxy thinner, resulting in congestive heart failure, chemical pneumonia, and permanent lung damage. At the time of the award, appellee was fifty-one years old. He began working for appellant Southwire as a machine operater beginning in September 26, 1994. Appellee's job description was as a "Moco" operator, running a machine that bakes insulation onto wire. The operation of the machine required the utilization of various types of volatile solvents, including expoxy thinner used in the machine operation which appellee mixed in a five-gallon drum. Appellee did not claim that the routine and daily exposure caused his injury, but, rather, an unusual exposure to a toxic chemical. Appellee testified concerning the extraordinary and unusual work performed on March 26, 2002.

Appellee explained that, on the day of the injury, the day-shift supervisor noted that strong vapors indicated there was a leak, and that he directed appellee to clean the epoxy thinner drum cabinet, which is a storage area designed to contain volatile chemicals and specifically to contain the epoxy thinner, a substance identified as ethyl benzene. When appellee informed his supervisor that he had never performed that job before and asked how to accomplish the task, the supervisor advised him to use rags to absorb the solvent. Appellee described the process as taking five and a half hours to completely clean and wipe down the area. During that time, he would go back and forth from the area to an open window to get fresh air because he would become overwhelmed, to the point of passing out, if he did not go back to the open window and get fresh air. After he went home, he experienced a severe headache. His sinuses were draining, and then his nose started bleeding.

Over the next few days, other symptoms developed including night sweats, trembling, chest pain and flu-like symptoms. Appellee continued to work with these symptoms for about a week. Then on April 7, 2002, he sought medical attention in the emergency room of the Baptist Memorial Hospital in Osceola, Arkansas. Dr. Hudson admitted appellee to the intensive care unit for aggressive intervention to address appellee's respiratory distress. At that time, Dr. Hudson expressed concern that appellee may soon require intubation. At that time, appellee's cardiovascular examination indicated a regular rate and rhythm. Dr. Hudson then transferred appellee to the Baptist-East facility on April 8, 2002, to be seen by Dr. Roy Fox, a pulmonary specialist. Dr. Hudson noted that despite aggressive intervention, appellee's breathing worsened to the point that he required ventilation.

No medical records were introduced relative to appellee's treatment, if any, between April 8, 2002, and April 25, 2002. However, medical records show that on April 25, 2002, appellee was hospitalized by Dr. Judith Butler with a diagnosis of respiratory failure, possibly related to chemical exposure at work, as well as heart failure.

Appellants, the employer and insurance carrier, requested an independent medical examination and evaluation by its own pulmonary specialist, Dr. Emmel B. Golden, Jr. In his deposition, Dr. Golden concluded that appellant had chronic obstructive pulmonary disease related to the long-term smoking of cigarettes, but related appellee's acute exacerbation of his pulmonary function to the chemical exposure on March 26, 2002.

In arguing that no substantial evidence supports the Commission's decision, appellants set forth section 11-19-114 of Ark. Code Ann. (Repl. 2002), contending that appellee didn't prove that he sustained a compensable heart and/or lung injury or illness within the statutory requirements. This section is set out below:

§ 11-9-114. Heart or lung disabilities; compensability.

(a) A cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death is a compensable injury only if, in relation to other factors contributing to the physical harm, an accident is the major cause of the physical harm.

(b)(1) An injury or disease included in subsection (a) of this section shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the employee's usual work in the course of the employee's regular employment or, alternately, that some unusual and unpredicted incident occurred which is found to have been the major cause of the physical harm.

(2) Stress, physical or mental, shall not be considered in determining whether the employee or claimant has met his or her burden of proof.

We cannot say that no substantial evidence supports the Commission's decision. The evidence reflects that on March 26, 2002, appellee was directed by his supervisor to clean up a toxic chemical, a task that he had never performed before and which exposed him to a toxic substance for a significant amount of time immediately affecting his breathing. Testimony identified immediate physical reaction to the exposure with increasing symptoms over days resulting in emergency treatment and admission to a hospital for respiratory distress. Appellants urge us to examine inconsistencies in the testimony, recognizing that while it is the province of the Commission to weigh the testimony and assess credibility, that a credibility decision is not insulated from review. Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999). We find no error. Credibility of witnesses and the weight to be given to their testimony are matters exclusively within the province of the Workers' Compensation Commission. Johnson v. Democrat Printing & Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997).

Accordingly we affirm.

Pittman, C.J., and Glover, J., agree.