Opinion
CLAIM NO. E616249
OPINION FILED AUGUST 14, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE STEVEN R. McNEELY, Attorney at Law, Gurdon, Arkansas.
Respondents represented by the HONORABLE JOSEPH KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
OPINION AND ORDER
In the above-styled matter, the Arkansas Supreme Court and the Court of Appeals have reversed a decision of the Full Workers' Compensation Commission and have remanded for further action.
I. HISTORY
The parties stipulated that Randy Davis sustained a compensable right-ankle injury on April 4, 1996, for which he received medical treatment and temporary total disability compensation. Dr. Jay Lipke operated on September 11, 1996, and wrote on November 1, 1996 that he anticipated returning Mr. Davis to work in two to four weeks. On or about November 1, 1996, Mr. Davis testified, "something popped in my ankle" as he attempted to avoid stepping on his three-year-old niece. Dr. Lipke subsequently reported that Mr. Davis had disrupted his surgical repair, and that he would need a re-operation. The respondents controverted further medical treatment.
Mr. Davis therefore filed a claim for additional worker's compensation. The claimant contended that he was entitled to additional temporary total disability from December 2, 1996 until a date to be determined, additional medical treatment, and an attorney's fee. The respondents contended that the claimant's disability or need for medical treatment was not a compensable consequence of the compensable injury, but was instead the result of an "independent intervening cause." After a hearing before the Commission, an administrative law judge found that the respondents had proven that the claimant suffered an independent intervening cause following the compensable injury. The administrative law judge wrote, "The medical evidence indicates that but for the incident at claimant's sister's home involving his right ankle, additional medical or disability benefits for claimant's compensable injury would have been unnecessary." The administrative law judge therefore found that the claimant failed to prove that he was entitled to additional benefits. The Full Commission affirmed and adopted the administrative law judge's decision.
The Arkansas Court of Appeals reversed and remanded the Workers' Compensation Commission in an opinion delivered January 26, 2000. See, Davis v. Old Dominion Freight Line, 69 Ark. App. ___, ___ S.W.3d ___ (2000). The Court cited Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(5)(F)(iii):
Under this subdivision (5)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant(Emphasis supplied).
The Court determined that Act 796 of 1993 did not change prior case law with regard to independent intervening causation. In Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), "we held that if there is a causal connection between the primary injury and subsequent complication or disability, an activity of the claimant that triggers the subsequent complications must be `unreasonable under the circumstances,' in order to be an independent intervening cause." The Court held that "Because the Commission's analysis was erroneous as a matter of law, we reverse for fact-finding in accordance with the standard set forth in Georgia-Pacific Corp. v. Carter . . ., that is, whether the requisite causal connection exists, and whether or not the disruption of the healing process of Davis's primary injury was caused by conduct that was unreasonable under the circumstances."
In an opinion delivered June 29, 2000, the Arkansas Supreme Court affirmed the Court of Appeals, reversing and remanding the Commission's decision. See, Randy Davis v. Old Dominion Freight Line, 341 Ark. ___, ___ S.W.3d ___ (2000). The Supreme Court cited Guidry v. J. R. Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984), and found:
Davis contends that section 11-9-102(5)(F)(iii) is actually a codification of preexisting case law and, specifically, the Guidry test. We agree.
In Guidry, the appellate court held that: . . . not only can there be an independent intervening cause without negligence or recklessness on the claimant's part, but unreasonable conduct on a claimant's part may create an independent intervening cause which would otherwise not exist.
The Supreme Court held that "the Commission's decision failed to display a substantial basis for the denial of relief because it failed to apply the correct legal standard to determine whether appellant's November 1996 accident constituted an independent intervening cause. Accordingly, we reverse the Commission's decision and remand for further action consistent with this opinion."
II. ADJUDICATION
A. Causal Connection
The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). If there is a causal connection between the primary and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances.Georgia-Pacific Corp. v. Carter, supra, citing Guidry v. J R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).
In the present matter, the Court of Appeals has remanded the matter to the Commission for "fact-finding" as to "whether the requisite causal connection exists, and whether or not the disruption of the healing process of Davis's primary injury was caused by conduct that was unreasonable under the circumstances." The claimant sustained a compensable injury to his right ankle on April 4, 1996, for which Dr. Lipke performed a "repair subluxing peroneal tendons, right ankle." By November 1, 1996, there was no further evidence of subluxation, and Dr. Lipke anticipated returning the claimant to work in two to four weeks. However, Mr. Davis experienced a "loud pop" in his ankle with significant swelling. Following this at-home incident, Dr. Lipke again reported evidence of subluxation and opined that the claimant had disrupted his surgical repair.
The determination of whether there is a causal connection between the injury and the disability is a question of fact for the Commission to determine. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986). The Full Commission determines from a preponderance of the evidence that there is indeed a causal connection between the original compensable injury and subsequent disability. We also find that the claimant's attempt to avoid stepping on his toddling niece was not unreasonable under the circumstances. The Full Commission therefore finds that the claimant has proven entitlement to reasonable and necessary medical treatment which is related to the re-injury.
B. Temporary Disability
The claimant sustained a compensable injury to his right ankle, a scheduled injury. Ark. Code Ann. § 11-9- 521(a). An employee who sustains a scheduled injury is entitled to temporary total disability compensation while he is within his healing period and has not returned to work. Armstrong v. Wheeler Construction Co., Full Workers' Compensation Commission, May 26, 2000 ( E615744). The claimant received temporary total disability compensation from the respondents through December 2, 1996. The claimant testified that he was entitled to additional temporary total disability from December 2, 1996 until a date to be determined; however, the claimant testified that he had continually worked for another employer since that date. Since the claimant had returned to work as of the hearing before the Commission, we find that he failed to prove entitlement to additional temporary total disability. The Full Commission finds, however, that the claimant will re-enter his healing period on the date he undergoes the recommended surgery by Dr. Lipke. The claimant will then be entitled to additional temporary total disability from the time that he remains within his healing period until the claimant returns to work.
Based on our de novo review of the entire record, the Full Commission reverses the November 14, 1997 opinion of the administrative law judge. The Full Commission finds that the claimant proved, by a preponderance of the evidence, a causal connection between the original compensable injury and subsequent disability. We find that the claimant's actions were not unreasonable under the circumstances. The Full Commission finds that the claimant is entitled to reasonable and necessary medical treatment related to his disability, including surgery as recommended by Dr. Lipke. The Full Commission finds that the claimant will be entitled to additional temporary total disability compensation from the date he reenters his healing period, that is, on the date his treating physician performs surgery, until the healing period ends and he returns to work.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
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