*1 two of public applications completion though appellant’s than which was more three in December occurred benefits commenced, even and though before the prosecution years she the first establish when received exacdy record does not benefits, do we find those factors not matter because illegal offense and that benefits is a of theft of continuing offense public had not the statute of limitations expired prosecution this commenced in case.
Affirmed. JJ., agree. GRIFFEN, Hart v. David BUZZARD TRANSPORTATION MAVERICK Hunt Trucking Company J.B. S.W.3d 467 99-839 CA Court of Arkansas Appeals II Division delivered Opinion denied March rehearing 2000.] [Petitiion *2 Clark, Baker, & C. Betty Friday, Eldredge by: James Jr. J. Demory, appellant. Purvis, P.A., Dixon, H. Dover & by: Joseph appellee. John F. Maverick JR., Judge. Transportation appeals STROUD, a of the Workers’ Commission decision Compensation David Maverick liable for benefits awarded to its employee holding of a left-knee suffered on Buzzard as result injury In Mr. Buzzard had sustained injury 1990 noncompensable knee; in B. Hunt had to the same Trucking Company J. to the knee as another injury compensable. accepted that no substantial evidence Com- contends on supports appeal Buzzard either a new mission’s that Mr. sustained finding which of his condition for and/or appellant aggravation liable; instead, was a recur- Maverick contends that rence of with his left knee. We long-standing problems disagree with Maverick and affirm.
An is a new from an aggravation resulting indepen DuBois, dent incident. Farmland Ins. Co. v. 54 Ark. App. S.W.2d 883 A recurrence is not a but new (1996). merely another from a resulting period incapacitation previous injury. Atkins Home v. S.W.2d Nursing Gray, App. A recurrence exists second is a complication natural Weldonv. Pierce consequence prior probable Constr., Bros. S.W.2d 179 (1996). Only where it is found that a second has from resulted an inde episode cause is the second pendent intervening liability imposed upon *3 carrier. Id. to the and
Appellant testimony points appellee’s deposition Miller Dr. as the incident on testimony Gary proof 5,1998, was a recurrence of with long-standing problems appellee’s left knee. 1998 incident is a argues Appellant “second of medical the 1996 period complication” foEowing Hunt B. as was no accepted by there accident compensable, J. cause, or and that the 1998 independent was a intervening natural and result of the 1996 He concludes that probable B. Hunt therefore remains liable. J.
The standard review on is In weU-settled. deter appeal the of the evidence to sustain mining sufficiency the findings Commission, Workers’ court reviews Compensation appeUate the evidence in most to favorable find light Commission’s if the affirms are ings substantial evi findings supported by Constr., dence. Woodall Hunnicutt v. 67 Ark. App. The is not whether the (1999). evidence would have question Commission; to the ones made
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theAt hearing for his left treatments and medical events following testified football first during neighborhood knee was injured knee. Dr. Lowe’s. Gary a salesman for time he was At that in 1990. game tear of for a partial surgery arthroscopic Miller performed months about seven eight which took cruciate ligament, anterior later, or for his knee year had no heal. Appellee at a com- three paper about years five He worked the next years. he was on skids and constantly where he moved bags paper pany he had next On his job, delivering pizzas, bending squatting. in the kitchen. stairs or working climbing no problems In truck driver in as a July B. Hunt hired appellee J. knee in a out” the same compensable 1996 he “blew November the truck bed and hit knee when he fell from he twisted his injury; Miller, to Dr. who He returned again performed the ground. Dr. Miller tear of the ACL. When for a surgery partial arthroscopic 1997, he him began driving released duty light Miller for his two- did not return to Dr. bus for Hunt. He shuttle month follow-up appointment. without restric- was released to work
In April appellee Alabama, where tions Dr. Szabo of Workwise appellee Dr. Szabo a ladder and tested on such tasks as climbing squatting. restrictions, and he went back to to work without released appellee flatbeds, He missed what he had done before. exacdy driving doing *4 of his knee December further work because through no with Hunt. when he left his employment with his testified that he was no having Appellee left, in knee a brace in the truck when he but he leg “just kept he with Maverick On a written case.” application employment B. Hunt as an the November 1996 with “injury listed J. attention,” a medical and he told accident telephone requiring examined his the football A doctor interviewer about Maverick; it her that in a medical evaluation for opinion knee driver the essential functions of road was able to perform appellee He went to work for reasonable accommodation. without any after the off. in taking holidays January Mid- at a steel in The incident here at issue occurred plant 6, 1998, dletown, Ohio, when was trying on February appellee load truck. in a secure a on his He was down “squatted reaching” awkward his left at an all his on angle position, leaning weight he knee. With his left hand reached for a chain between a seven- bed; and he foot coil the side of the the chain pulled through, it, hooked and the ratchet Then he binder. started tightened and stated that heard He the was similar to straighten up pop. pain before, bad”; what he had and that hurt it “real he experienced and could not walk on it could not the clutch. operate that between testified and Appellee in 1998 he continued to have his left knee and that he was “play” careful how he it. He his brace used in the truck to wear on kept occasions his knee hurt. Before he had no duties; normal this included and problem performing squatting afterwards, did which he with careful up standing positioning. in relies evidence following Appellant part upon sup- its that was a natural and position port probable result of Hunt B. as thatj. accepted compensable. 1998; There was no fall in stood did merely appellee up. Appellee not understand the of the 1996 he had in severity instability injury, afterwards, did he not wish to sitting reconstruction sur- undergo afterwards, knee, in he had looseness and he gery wore brace in the truck when his knee hurt. Dr. Miller wrote in 1997 reconstruction, that have to ACL reports appellee might undergo and he testified last was a continuation of the same knee, an unstable which would have spectrum, recurring flare-ups and as the natural an cruciate damage anterior deficient history knee. Dr. Miller also testified that the torn cartilage appellee had awas natural and of the probable consequence condition, and that the tear often as matter time. happened just evidence, contends Commission includ- Appellant ignored above, of its ing support position.
The of the Commission to resolve authority conflicting also evidence extends to medical Inc. v. testimony. Swift-Eckrich, Brock, 975 S.W.2d 857 Commission entitled review the basis for a doctor’s deciding opinion weight credibility medical evidence. Id. opinion *5 Here, administrative the decision of adopting affirming law the Commission found be a most credible judge, appellee witness and found the of Dr. to be Miller evidentiary testimony Dr. Miller out that gave It appellee confusing. pointed somewhat of the 1998 the nature injury; concerning history no specific another and had “was that working knew appellee only doctor had told that the doctor appellee noted The Commission injury.” did not return that he had if appellee return problems; meniscus torn that a new diagnosis, full almost a year; The Commission the 1998 event. result of was a cartilage, concluded: the claimant’s credible testimony, the claimant’s
Based upon return to work his following and work history course of conduct thereafter, together and continuing in March or April evidence, that claimant’s it is herein concluded physical the medical are the result of new beginning which of his condition and/or aggravation pre-existing injury working respondent [appellant]. occurred while that conclusion cannot Commission’s We say his new and/or was a aggravation preexisting 1998 injury Therefore, we substantial evidence. was not condition supported and its is decision finding appellant Commission’s affirm the knee hable for
Affirmed.
Hart, J., agrees.
GRIFFEN, J., concurs. I
Wendell L. While agree GRIFFEN, Judge, concurring. decision, I do so affirm the Commission’s pursuant which Arkansas section 9-102(5)(F)(ii)(b), Annotated Code 11— states: combines with a disease or
If any compensable to cause or prolong or the natural process aging condition treatment, benefits shall be or a need for permanent disability condition if the only compensable for the resultant payable need for disability cause of major permanent treatment. with the Commission’s finding affirm because I apparent
I agree cause of David 1998 incident is major need for treatment. Buzzard’s *6 indicates,
As the Buzzard sustained a non- principal opinion 1990, left to his knee in and suffered another compensable injury to that knee in 1996 while Hunt. by employed J.B. record shows he was released to work without in restrictions 1997, and that he returned to flatbed trucks for Hunt driving April without further work of because his knee. He left missing any 1997, with Hunt in December and started employment working after dis- Transportation January having fully closed his knee preexisting injuries during pre-employment and after been application/interview process having medically cleared work as an over-the-road driver. The condition for which his a claim for benefits was made arose from present 6, 1998 incident that in Buzzard’s which the testimony, Commis- credible, sion found when he occurred started to rise a from squat- ted while a load on truck. He securing his heard felt position pop, severe was unable walk on his left knee or pain, operate clutch of his truck afterwards.
Before the effective date of July Act 796 Buzzard’s claim would been have decisions governed by simply focused on whether the incident was an “aggrava- — — — tion” a new or a “recurrence” meaning meaning continuation of a The cases cited previous injury. by parties their briefs reflect that If Act 796 of not history. 1993 had been enacted to include Ark. Code Ann. then ll-9-102(5)(F)(ii)(b), § However, those would cases be on our decision. controlling General Seventy-Ninth rendered that of case Assembly law body obsolete it enacted Act 796 session convened during special for the sole our workers’ purpose law. reforming compensation At Ark. Code Ann. 11-9-1001 1996), General Assem- (Repl. § declared: bly It the specific intent of the General Seventy-Ninth Assembly annul, and hold for all
repeal, naught prior opinions or decisions of administrative law any the Workers’ judge, Com- Compensation mission, or this state courts of to or in contrary conflict with any in this act. provision Arkansas Code Annotated section 9—102(5)(F)(ii)(b) 11—
added to the workers’ law of Act compensation Arkansas 796. It is a from significant law departure pertaining liability conditions because it not subsequent injuries does employ the cases distinction characterized by the aggravation/recurrence HomeIns. Co. and other decisions. See in the cited principal opinion v. El Dorado Moss (1974); 505 S.W.2d v. Logan, Co. Co., Aluminum (1963); Drilling *7 Williams, see also S.W.2d 232 Ark. 335 315 (1960); v. America 897 54 Ark. 923 S.W.2d Home v. App. Atkins Gray, Nursing Bond, 321 Lumber v. Bearden Co. (1996); or whether the condition law focused on Prior subsequent as to continua a new constitute injury opposed injury appeared If the condition or condition subsequent tion of previous from the deemed the natural was consequence flowing or injury condition, the for the employer previous previous for benefits was deemed liable based on finding or condition a recurrence an rather than aggrava the condition subsequent Tuberville, v. Ark. International Co. tion. See Paper Bond, v. This BeardenLumber Co. (1990); analyti S.W.2d supra. the resulted what General Seventy-Ninth Assembly cal process of the and erosion deemed an of broadening unsatisfactory scope the of workers’ from legislative the compensation, judging purpose intent found at Ann. 11—9— of for Act 796 Ark. Code declaration § the As Ark. Code But Act construct. analytical changed states, the now is Ann. relevant 11-9-102(5)(F)(ii)(b) inquiry § did a twofold: combine with (a) preexisting compensable disease or condition or the natural of to cause or process aging treatment; or a need for is the (b) disability compensa- prolong the cause of the or need for ble injury major permanent disability means more treatment. cause” than “Major fifty percent cause, of be and a cause shall established finding major according of evidence. Ann. 11—9— the the See Ark. Code preponderance § 1999). 102(14) (Supp.
I believe that this twofold is analysis only legitimate for inci- construct of determining compensability subsequent reliance dents for cases under Act 796 that continued on arising construct is and mislead- the aggravation/recurrence inappropriate use of construct is Continued the aggravation/recurrence inap- ing. because of clear and of unambiguous legis- propriate expression case law lative intent at Code Ann. 11-9-1001 that all prior § to or in Act is conflict with contrary any provision repealed, nullified, and held for And continued use of the naught. aggrava- tion/recurrence construct because it would detract misleading from the cause” focus that Act I am “major 796 commands. unable how the can construct satis- aggravation/recurrence contemplate be on the without factorily superimposed major-cause analysis cause.” Had the General diminishing meaning “major intended our to continue reliance on the Assembly aggravation/ distinction, recurrence it not created would have cause” “major construct. the Commission did not
Although Act 796 ana- employ lytical is liable process deciding Transportation Buzzard’s 1998 knee and its I consequences, agree that the Commission reached the result nonetheless. Maver- proper ick does not Transportation deny 1998 incident combined Buzzard’s condition to cause need for treatment. The is whether the only question incident was the cause need treatment. Com- major *8 mission found Buzzard’s credible and that testimony discounted Dr. Miller in Gary conclusion that reaching Buzzard’s physical after were caused by date. Although Commission did not use the term “major cause,” its leaves no doubt opinion that it deemed the February 1998, incident accountable for more than fifty cause percent for Buzzard’s need for additional treatment.
Therefore, I the decision to join affirm. Yet I hope Commission for counsel workers’ compensation will litigants — — discontinue the outdated and now invalid employing plainly framework that analytical Act 796 in future cases predated involving this kind of dispute.1 1 I concede that we have not this new in our employed analytical process post-Act 796 decisions. Atkins v. Nursing See Home I Furthermore, measure of Gray, supra. accept our aggravation/recurrence continued use invalidated responsibility as I distinction, dissenting also conceded in recent in Davis v. Old Height my Dominion Line, Inc., 69 opinion (2000). Although governed Davis involved a fact situation 11-9-102(F)(iii) (ii), Ark. Code Ann. rather than controlling Act 796 remains the § authority decision-making for our rather these claims than the case law that existed before July writing date it took effect. concurring this I counsel alert By opinion, hope litigants workers’ I will look to Act 796 and the that it compensation analytical process analyzing future cases. prescribes