Hawkins Construction v. Maxell

915 S.W.2d 302, 52 Ark. App. 116, 1996 Ark. App. LEXIS 95
CourtCourt of Appeals of Arkansas
DecidedFebruary 21, 1996
DocketCA 94-1378
StatusPublished
Cited by1 cases

This text of 915 S.W.2d 302 (Hawkins Construction v. Maxell) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hawkins Construction v. Maxell, 915 S.W.2d 302, 52 Ark. App. 116, 1996 Ark. App. LEXIS 95 (Ark. Ct. App. 1996).

Opinions

Melvin Mayfield, Judge.

Hawkins Construction Company has appealed a decision of the Worker’s Compensation Commission which affirmed the administrative law judge’s decision and adopted his findings of fact and conclusions of law. The law judge held appellant liable for appellee’s medical expenses, temporary total disability from January 11, 1993, through June 27, 1993, permanent partial disability of 10 percent to the body as a whole, and wage loss benefits of 10 percent. The law judge also found that the Second Injury Fund was not liable for the wage loss disability because all of appellee’s permanent disability was the result of the last injury alone.

Richard Maxell, the appellee, testified that he was 27 years old, had a tenth-grade education, and had done manual labor all his working years. He said he received his first back injury in November 1990 while working at a service station at Waldron, Arkansas. He said he bent over to pick up a split-rimmed tire to pull the wheel out and “slipped something” in his back. He worked for another week before going to the doctor. He was then seen by two orthopedic surgeons who took turns coming to Waldron to see patients. Their diagnosis was a slipped disc, and he was treated with physical therapy. He filed a workers’ compensation claim, but his employer did not have enough employees to be covered by the Act.

Maxell then went to work doing carpentry for American Construction. He said they did remodeling and there was some bending and lifting involved. However, it was not very heavy and he did not have any trouble with his back. After approximately nine months he was laid off.

A couple of months later Maxell went to work for appellant. He said his back did not bother him again until November of 1992 when he was doing iron work while building a school. He was lifting an I-beam and felt a “real sharp” pain in his lower back and into his legs. It hurt worse than his previous injury but he was able to continue working until sometime in January 1993, when he was on a roof attempting to prize a bundle of tin out of his way and the prize pole broke. This caused him to slip and he almost fell off of the roof but caught himself. He said that incident made his back a whole lot worse.

Maxell went to the doctor the next day after this injury. The doctor gave him muscle relaxers and pain pills and took him off work. When Maxell returned to the doctor two weeks later he was referred to a surgeon. Surgery was performed on March 24, 1993, and Maxell had a normal recovery. However, he testified that he had been unable to work since the surgery because of the doctor’s restriction on bending and lifting.

Maxell also testified that he was in a head-on automobile collision in July 1993. He was going about 35 miles an hour on a country road when he entered a curve. An oncoming car was over in his lane and hit him head-on. Maxell said he had his seat-belt fastened, and the accident only made him sore.

Maxell admitted that since his surgery he had done some deer hunting but that he has never hunted turkey, before or after the surgery. He also said he has no dogs and does not buy dog food; he had operated a backhoe a few times but not for money; and he does not operate a bush-hog.

On appeal the points relied upon are set out as follows:

I. Did Maxell suffer a compensable injury while working for Hawkins?
II. If Maxell suffered a compensable injury while working for Hawkins, is the Second Injury Fund responsible for wage loss disability benefits?
III. If Maxell suffered a compensable injury while working for Hawkins, is Hawkins responsible for all the claimant’s permanent impairment rating?

When reviewing a decision of the 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. Clark v. Peabody Testing Service, 265 Ark 489, 579 S.W.2d 360 (1979). The weight and credibility of the evidence is exclusively within the province of the Commission. Morrow v. Mulberry Lumber, 5 Ark. App. 260, 635 S.W.2d 283 (1982). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Even if a preponderance of the evidence might indicate a contrary result, we will affirm if reasonable minds could reach the conclusion of the Commission. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987).

Appellant’s first argument is that any injuries which occurred while working for appellant amounted to a recurrence of the injury he received in 1990 while working at the service station. However, the Commission found that the injuries sustained while working for appellant amounted to an aggravation — not a recurrence. In Pinkston v. General Tire & Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990), we reviewed the distinction between a recurrence of a previous injury and an aggravation. We stated:

In Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983), this court considered the distinction between a recurrence and an aggravation in the context of which of two compensation carriers, if either, had liability. We concluded:
[ I]n 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 [Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W.2d 315 (1960)] — 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.

30 Ark. App. at 50, 782 S.W.2d at 377. See also Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). In the instant case, following the law as explained in Bearden Lumber Co. v. Bond, supra, appellant would be liable for the aggravation of the old injury, and we think there is clearly substantial evidence to support the Commission’s finding to that effect.

But appellant then argues that if Maxell did suffer a new injury, or an aggravation of his old injury, the Second Injury Fund is liable for his wage-loss disability. The law controlling this second point is found in Mid-State Construction Co. v. Second Injury Fund, 295 Ark.

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Related

Hawkins Construction Co. v. Maxell
924 S.W.2d 789 (Supreme Court of Arkansas, 1996)

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Bluebook (online)
915 S.W.2d 302, 52 Ark. App. 116, 1996 Ark. App. LEXIS 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkins-construction-v-maxell-arkctapp-1996.