Arvest Bank Group, Royal and Sun Alliance, and Clarendon National Insurance Company v. Laurie Beckman

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-204

DIVISION IV

ARVEST BANK GROUP , ROYAL AND SUN ALLIANCE, and CLARENDON NATIONAL INSURANCE CO.

APPELLANTS

v.

LAURIE BECKMAN

APPELLEE

CA05-00204

NOVEMBER 2, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[F214043]

AFFIRMED

Karen R. Baker, Judge

This appeal comes from a decision of the Arkansas Worker's Compensation Commission (Commission) to apportion liability for the payment of benefits equally between two separate insurance carriers. Clarendon National Insurance (Clarendon) provided coverage for Arvest Bank Group (Arvest) when appellee Laurie Beckman was first diagnosed with carpal tunnel syndrome in 2002, and after accepting her injury as compensable, paid medical and temporary total disability benefits. Appellant Royal & Sun Alliance became the insurance carrier for Arvest on July 1, 2002. Later in December 2002, Beckman's treating physician evaluated her, found her without permanent impairment, and released her to resume her duties full-time at Arvest.

Beckman gradually began to experience problems associated with carpal tunnel syndrome, and after being denied access to her treating physician, she sought treatment from her family physician who subsequently performed carpal-tunnel release surgery on April 23, 2004.

Beckman then filed a claim for medical treatment and temporary total disability. The Commission found that Beckman's carpal tunnel syndrome and a surgery in 2004 was the result of the combined effects of the initial compensable injuries occurring in 2002 while Clarendonwas the insurance carrier, and a subsequent aggravation occurring later when the appellant was the insurance carrier. Accordingly, the Commission apportioned liability benefits equally between the two carriers. The appellant contends that the Commission's determination that Beckman sustained an aggravation of her compensable injury-rather than a recurrence-was without substantial evidence. We affirm.

When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and we affirm that decision if it is supported by substantial evidence. Campbell v. Randal Tyler Ford Mercury Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001). Furthermore, the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).

The appellant argues that the Commission erred in finding that Beckman's injuries and medical treatment occurring after appellant began providing insurance coverage for Arvest was the result of an aggravation. The appellant instead contends that this injury was a recurrence of Beckman's previous compensable injury, and therefore the insurance carrier at the time of the previous injury-Clarendon-is still liable for Beckman's claims.

A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gary, 54 Ark. App. 125, 923 S.W.2d 897 (1996).A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). An aggravation, however, is a new injury resulting from an independent incident. Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). Therefore, where the second complication is found to be a natural and probable result of the first injury, the employer initially liable remains liable; only where it is found that the second episode has resulted from an independent intervening cause is that liability affected. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). This test of whether a causal relationship exists between the first episode of injury and the second is a question of fact for the Commission to determine. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986). When there is a change of insurance carriers, as in this case, and the only dispute is the proper source of payment of benefits, the Commission is to apportion liability for those benefits on an equal basis between the carriers. Ark. Code. Ann. § 11-9-806, (Repl. 2002). Any apportionment of liability between insurance carriers, where the combined effect of a previous and a subsequent injury causes a disability, is a factual determination to be made by the Commission. Browning's Restaurant v. Kuykendall, 263 Ark. 374, 565 S.W.2d 33 (1978).

Reviewing the evidence in the light most favorable to the Commission's decision, we find that there was substantial evidence for the determination that Beckman's subsequent injury and medical treatment was the result of a combined effect of a previous compensable injury and successive injuries that constituted an aggravation rather than merely a recurrence. Treating physician Dr. Gary L. Moffit wrote to Beckman's employer Arvest on December 4, 2002, and noted that while Beckman might always have "some element" of carpal tunnel syndrome, she nevertheless suffered "no permanent impairment" and was not scheduled for any return appointment for evaluation or treatment of her injury. Dr. Moffit additionally recommended that Beckman be released to her full range of duties for Arvest, which included data input. After she resumed her duties full-time, Beckman gradually began to experience problems related to carpaltunnel syndrome. After she was denied access to Dr. Moffit for treatment, Beckman sought treatment from her family physician and was referred to Dr. James F. Moore through her family physician. Dr. Moore recommended surgery after his evaluation.

The Appellant casts suspicion on the clinic note written by Dr. James F. Moore in which there are two blanks with word "worsened" hand-written into one blank space, and the word "NCS" (nerve conduction study) written into the other space. The appellant contends that because of the alleged suspiciousness of the handwritten words in Dr. Moore's statement indicating that Beckman's NCS study had worsened and required medical treatment, the Commission gave "improper weight" to this medical evidence. The appellant also attempts to counter Dr. Moore's analysis of Beckman's nerve conduction studies in 2002 and 2003 with Dr. Moffitt's statement that they were "pretty similar" in his view. With respect to both of these arguments, it is the duty of the Commission to determine credibility of medical evidence, and any conflicts are a question of fact for the Commission. Green Bay Packaging, supra.

Because there was substantial evidence to support findings of fact that the injuries Beckman suffered in 2003 were due to the combined effect of a previous compensable injury and later aggravation in the form of successive injuries occurring after the appellant assumed the risk as insurance carrier, we affirm. Gladwin and Robbins, JJ., agree.