Service Pharmacy v. Cox

478 S.W.2d 749, 252 Ark. 313, 1972 Ark. LEXIS 1593
CourtSupreme Court of Arkansas
DecidedApril 10, 1972
Docket5-5860
StatusPublished
Cited by3 cases

This text of 478 S.W.2d 749 (Service Pharmacy v. Cox) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Service Pharmacy v. Cox, 478 S.W.2d 749, 252 Ark. 313, 1972 Ark. LEXIS 1593 (Ark. 1972).

Opinion

J. Fred Jones, Justice.

This is a workmen’s compensation case in which Service Pharmacy and its compensation insurance carrier appeal from a judgment of the Craighead County Circuit Court affirming an award for total disability made by the Workmen’s Compensation Commission to Leora Cox because of an aggravation of pre-existing varicosities in her legs while employed as as waitress by the appellant, Service Pharmacy, in Jonesboro, Arkansas. The appellants contend that there is no substantial evidence in the record to sustain the award of the Commission, so that is the only question before us on this appeal. Mayner v. Flyer Garment Co., 249 Ark. 384, 459 S. W. 2d 413 (1970).

The record reveals that in 1963 Mrs. Cox underwent surgery for the relief of varicosities in her right leg and was advised by the doctor that she needed similar surgery on the left leg. Mrs. Cox testified that after staying off her feet for approximately six weeks following the surgery in 1963, she got along fine and encountered no further difficulty with her legs until 1968. She testified that about September 1, 1966, she went to work for the appellant-employer as a waitress, and that her duties consisted of waiting tables and helping with the preparation and serving of meals, sandwiches and drinks at the appellant’s drugstore. Mrs. Cqx testified that in March, 1968, her legs began swelling and became painful and that her family physician, Dr. Poole, referred her to Dr. Bascom Raney who gave her some “fluid tablets” for the swelling in her legs. She said that by taking the tablets she was able to continue her work at the drugstore until in September, 1969, when the swelling became more pronounced and the pain so severe, she was forced to return to Dr. Poole for treatment. She said that Dr. Poole advised her to stay off of her feet, which she did for a period of two weeks during which time her condition improved. She testified that she returned to work on October 13, 1969, and worked until October 24 when she was forced to quit under Dr. Poole’s advice and seek surgical intervention for the condition she then had. The evidence is to the effect that Mrs. Cox worked at the drugstore six days a week alternating a nine and one-half hour day with a six hour day and that the cafe portion where Mrs. Cox worked, had a concrete floor covered with linoleum tile. The evidence is to the effect that the cafe business in the drugstore gradually increased with the passage of time and that the necessity for Mrs. Cox to be constantly on her feet in the performance of her duties increased along with the cafe business.

In support of the appellants’ argument that there is no substantial evidence that Mrs. Cox suffered an accidental injury growing out of or occurring within the course of her employment, they cite Larson on Work-

eyes of little needles, it would seem manifest that our Act did not undertake to limit compensation to cases where the injury was begun and completed within narrow limits of time, but that it used the expression ‘injury by accident’ in its common-sense everyday conception as referring to an injury produced without the design or expectation of the workman.’”

In Batesville White Lime we further said:

“We conclude that, even though the evidence did not show the exact instant at which the disability of appellee could be said to have occurred by reason of breathing the dust, nevertheless, as shown by the proof, the inhalation of this dust did aggravate appellee’s heart ailment to the point of totally disabling him, and therefore the finding of the referee that appellee suffered an accidental injury in the course of his employment was correct.”

See also W. Shanhouse & Sons, Inc. v. Sims, 224 Ark. 86, 272 S. W. 2d 68, where an award for disability caused by empyema was affirmed under medical evidence to the effect that the empyema attended by pleural adhesions was not caused by the claimant’s work, but that it was aggravated by her work in lifting and pulling, thereby irritating the pleural adhesions causing them to weep and develop a fluid which created a basis for the empyema.

The appellants do not question that compensation is payable under the Arkansas law for the aggravation of a pre-existing condition, Hamilton v. Kelly Construction Co., 228 Ark. 612, 309 S. W. 2d 323, but the appellants argue that Mrs. Cox failed to prove by any substantial evidence that her pre-existing condition was aggravated to the point of disability by accidental injury arising out of and in the course of her employment. We now examine the evidence on this point.

Dr. Grover Duckett Poole testified that he first saw Mrs. Cox, in connection with the vascular problems in her legs, on September 25, 1969, and that he diagnosed her men’s Compensation Law, and also 99 C.J.S. on Workmen’s Compensation, as well as court decisions defining “accidental injury” as requiring the elements of “unexpectedness of cause or result and a definite time the injury occurred.”

Ever since our own 1956 opinion in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, we have been committed to the proposition that,

“. . .an injury is accidental where either the cause or the result is unexpected or accidental, although the work being done is usual or ordinary.”

In Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961, we quoted from 18 Schneider on Workmen’s Compensation Text, Vol. 4, § 1328, p. 543, in part, as follows:

“‘It may be stated generally that if the conditions of the employment, whether due to over-exertion, excessive heat, excessive inhalation of dust and fumes, shock, excitement, nervous strain or trauma, tend to increase an employee’s blood pressure sufficiently to cause a cerebral hemorrhage, such result constitutes a compensable accident within the intent of most compensation acts, though the employee may have been suffering from a pre-existing diseased condition which predisposed him to such result, or where such result would have occurred in time due to the natural progress of such pre-existing condi-

In Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S. W. 2d 31, the claim involved the aggravation of a heart condition brought about by the inhalation of dust over a considerable period of time. Compensation was awarded and in affirming the award, we quoted with approval from the North Carolina case of McNeely v. Carolina Asbestos Co., 206 N. C. 568, 174 S. E. 509, as follows:

“‘Unless we attempt to whittle down or enlarge words or undertake to put big threads through the condition as “bilateral varicose veins - thrombophlebitis of left leg.” He testified that the thrombophlebitis consisted of blood clots in the deep veins of the leg and that he treated Mrs. Cox by hospitalization in bed with elevation of the left leg. The overall substance of Dr. Poole’s testimony was to the effect that Mrs. Cox had diseased blood veins in her legs; that standing will slow the blood flow through diseased veins and cause blood clots to more likely occur. Dr. Poole testified that following Mrs. Cox’s release from the hospital on October 16, 1969, she had had considerable bed rest and light work around the house and her condition was greatly improved. He then testified as follows:

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478 S.W.2d 749, 252 Ark. 313, 1972 Ark. LEXIS 1593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/service-pharmacy-v-cox-ark-1972.