Weldon v. Pierce Bros. Construction

925 S.W.2d 179, 54 Ark. App. 344, 1996 Ark. App. LEXIS 501
CourtCourt of Appeals of Arkansas
DecidedJuly 3, 1996
DocketCA 95-853
StatusPublished
Cited by26 cases

This text of 925 S.W.2d 179 (Weldon v. Pierce Bros. Construction) 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
Weldon v. Pierce Bros. Construction, 925 S.W.2d 179, 54 Ark. App. 344, 1996 Ark. App. LEXIS 501 (Ark. Ct. App. 1996).

Opinions

John F. Stroud, Jr., Judge.

In August 1989, A. G. Weldon suffered compensable injuries when he was rear-ended in a company van owned by Voss Heating and Air Conditioning. He received medical treatment and in 1990 underwent lumbar surgery, resulting in restrictions on lifting and preventing a return to his job with Voss. He was rated with a ten percent permanent impairment rating in 1991. Two months later he began working for Pierce Brothers Construction. He was pulling electrical wires through a conduit on September 4, 1991, when he suffered a second back injury. That injury is the subject of Mr. Weldon’s appeal to this court. He contends that the Workers’ Compensation Commission erred 1) in finding that his September 4, 1991, injury was a recurrence of the August 28, 1989, injury; and 2) in denying his wage loss claim. We affirm.

Appellant did not work after his 1991 injury until March 1992, when he became a gate guard for T and T Security in Poteet, Texas. He quit that job in November 1991 because of his back problems. In December 1993 he began running a computer and maintaining inventory records for Compton’s Air Conditioning and Heating in Kerrville, Texas. Because he had no medical insurance, he arranged with his employer to be paid a wage which would not disqualify him from receiving social security and Medicare benefits. He was employed by Compton’s in June 1994 when a hearing was held before the administrative law judge on the compensability of the injury Mr. Weldon suffered in 1991 while working for Pierce Brothers.

The Workers’ Compensation Commission explained the findings of the law judge by stating: “The Administrative Law Judge held that claimant is entitled to an additional four percent permanent anatomical impairment rating for an overall permanent partial disability of 30 percent and that the Second Injury Fund is liable for the amount of 16 percent.” The Workers’ Compensation Commission reversed the decision, finding that the determination of the ALJ was not supported by a preponderance of the evidence.- The Commission stated:

A preponderance of the credible evidence indicates that the alleged incident that occurred in 1991 was a recurrence of his 1989 injury. Thus, the Second Injury Fund is not liable. Furthermore, there is insufficient evidence of an increase [sic] disability to hold respondent employer Hable [for] any additional benefits. Therefore, we reverse the decision of the Administrative Law Judge.
Furthermore ... a review of the evidence indicates that claimant has set himself up to earn less than [minimum] wage so that he can continue to receive $632 per month in social security benefits. While claimant should be commended for returning to work, claimant should not receive wage loss compensation where he is deliberately contributing to his loss of wage earning capacity. Therefore, we reverse the decision of the Administrative Law Judge.

Appellant’s first point is that the Commission erred in finding that the 1991 injury was a recurrence of his 1989 injury. He contends that there were no facts before the Commission from which reasonable minds could have concluded that this was a recurrence rather than an aggravation or a new injury. He points out that nowhere in the testimony or medical records does the term “recurrence” appear, and he has abstracted use of the term “aggravation” by the doctor who performed his surgery.

In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, the appellate court reviews the evidence in the light most favorable to the Commission’s findings and affirms if they are supported by substantial evidence. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The Court of Appeals does not reverse a decision of the Commission unless it is convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Wilmond v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Aetna Insurance Co. v. Dunlap, 16 Ark. App. 51, 696 S.W. 2d 771 (1985). Only where it is found that a second episode has resulted from an independent intervening cause is liability imposed upon the second carrier. Id.

The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of workers’ compensation law. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). As our supreme court has stated:

The Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant’s injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as wéll as lay testimony and the testimony of the claimant himself. Further . . . while medical opinions are admissible and frequently helpful in workers’ compensation cases, they are not conclusive.

Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 298 S.W.2d 521 (1989) (citations omitted). In fact, it is the duty of the Workers’ Compensation Commission to translate the evidence on all issues before it into findings of fact. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). The specialization and experience of the Commission make it better equipped than this court to analyze and translate evidence into findings of fact. Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2D 162 (1987).

Appellant’s first point of appeal is that the Commission erred in finding that the 1991 injury was a recurrence of the 1989 injury or the resulting surgery. There was evidence presented at the hearing, however, that appellant had been neither pain free nor without back difficulties after the 1989 accident. His orthopedic surgeon testified that he had assessed appellant’s condition after the 1991 injury as strained ligaments and possible flare-up of an epidural scar, and that there were no new restrictions or limitations on appellant’s activities from the time he was released after surgery until the last time the surgeon saw him in 1992. Appellant testified that after surgery he was never again one-hundred percent. Appellant’s housemate testified that his pain had not gone away nor had he been without problems after the surgery, and that he had never regained his strength and stamina after the 1989 accident. We hold that substantial evidence supports the Commission’s finding that the 1991 incident was a recurrence of the 1989 injury rather than an aggravation as contended by appellant.

Appellant’s second point of appeal is that the Commission erred in denying his wage loss claim.

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Bluebook (online)
925 S.W.2d 179, 54 Ark. App. 344, 1996 Ark. App. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weldon-v-pierce-bros-construction-arkctapp-1996.