Oak Grove Lumber Co. v. Highfill

D. Franklin Arey, III, Judge.

The Workers’ Compensation Commission found that appellee Harry Highfill’s second foot injury was a compensable consequence of his initial work-related injury. Appellee sustained his second injury when he stepped on, or tripped over, a tree root while walking through a park; he was in the park attending a church activity. The appellant, Oak Grove Lumber Company, argues that the Commission’s decision is not supported by substantial evidence and is erroneous as a matter of law. We affirm.

On June 16, 1995, appellee dropped a sledgehammer on his right foot while working for appellant. Appellee saw a nurse practitioner, who determined that appellee sustained a nondisplaced fracture. She treated appellee and instructed him to wear protective boots when he returned to work. Appellee returned to work for a few days.

On June 22, 1995, appellee attended a church function in a city park. While walking through the park, appellee either stepped on or tripped over a tree root. In his words, “something happened” to his foot; the incident “bent my toes back and it just went ahead and broke.”

Appellee saw Dr. R. Cagle, who diagnosed an angular fracture of the second metatarsal with some dorsal displacement. Dr. Cagle referred appellee to Dr. Marion Hazzard, who performed an operation on appellee’s foot on June 28, 1995. On January 26, 1996, the plates were removed from his foot and he was released on February 12, 1996, to resume normal activities.

In a January 16, 1996 medical report, Dr. Hazzard stated that he believed that appellee’s displaced fracture was a direct result of his initial injury with the sledgehammer, as a fracture was reported after that incident. He stated that weakening of the bone secondary to the first trauma was a contributing factor to the subsequent displaced fracture. However, at his deposition, Dr. Hazzard testified that he was not saying that the displaced fracture was a natural consequence of the first fracture; he agreed that the second fracture did not follow as a natural progression in the course of events. Dr. Hazzard did believe that a previous fracture would certainly increase the probability of a displaced fracture occurring.

After reviewing Dr. Hazzard’s deposition, the Commission was persuaded that his acknowledgment regarding the “natural consequence” of appellee’s first fracture simply meant that appel-lee was not destined to sustain a major fracture owing to the presence of a minor one. Relying on Dr. Hazzard’s opinion of January 16, 1996, other testimony from his deposition, and the close temporal relationship between appellee’s two fractures, the Commission concluded that appellee’s accident would not have caused the displaced right foot fracture had it not been for the previous injury of June 16, 1995. Thus, the Commission concluded that it was unable to find that appellee’s injury of June 22, 1995, occurred as a result of an independent intervening cause.

Appellant argues that the Commission’s decision is erroneous as a matter of law. Relying on Arkansas Code Annotated section 11-9-102(5)(F)(iii) (Supp. 1997), appellant argues that appellee’s second injury was a nonwork-related independent intervening cause, thereby precluding the payment of benefits. That section provides:

Under this subdivision. . ., 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 the claimant.

Ark. Code Ann. § 11-9-102(5)(F)(iii). In effect, appellant argues that the Commission should have found appellee’s second injury to be a nonwork-related independent intervening cause as a matter of law.

Appellant’s argument ignores the Commission’s role as a fact finder. As a general matter, 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. See Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986). Likewise, our prior decisions indicate that the determination of the existence of an independent intervening cause is a question of fact for the Commission to determine. See Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993); Lunsford v. Rich Mountain Elec. Coop., 38 Ark. App. 188, 832 S.W.2d 291 (1992)(reversing the Commission’s finding of the existence of an independent intervening cause for lack of substantial evidence). Thus, the question of whether appellee’s second injury was a nonwork-related independent intervening cause was not to be determined as a matter of law; rather, it was a question of fact for the Commission’s determination. Therefore, we reject appellant’s argument that the Commission erred as a matter of law.1

Appellant also argues that the Commission’s opinion is not supported by substantial evidence. Appellant focuses on Dr. Haz-zard’s testimony that the displaced fracture was not a natural consequence of the first fracture. Appellant complains that the Commission gave its own interpretation of the doctor’s testimony, rather than giving the testimony its “plain and clear meaning.”

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. Broadway, 41 Ark. App. at 113-14, 848 S.W.2d at 447. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even where a preponderance of the evidence might indicate a contrary result we will affirm if reasonable minds could reach the Commission’s conclusion. Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983).

It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988). The Commission has a duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Id. It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted; and when it does so, its findings have the force and effect of a jury verdict. Id.; see Johnson v. Democrat Printing & Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997).

While Dr. Hazzard did confirm that he was not saying that appellee’s displaced fracture was a “natural consequence” of his first fracture, other parts of his deposition testimony and his report of January 16, 1996, support the Commission’s determination. The Commission was certainly empowered to draw inferences from Dr. Hazzard’s testimony, and it did so. In this instance, the Commission’s decision is supported by substantial evidence.

Affirmed.

Neal, Meads, and Roaf, JJ., agree. Griffen and Bird, JJ., dissent.

1 The dissent rests on Ark. Code Ann. § ll-9-102(5)(B)(ii) and (iii)(Supp. 1997). There is no indication in the Commission’s opinion that these subsections were argued to the Commission. Indeed, appellant’s argument was summarized in the opinion as follows:

Respondents now appeal from [the ALJ’s] opinion and order, contending that claimant’s June 22, 1995, foot injury is the result of an independent intervening cause and is not a compensable consequence of his work-related injury.

Because appellant failed to raise an argument based upon § 11-9-102(5)(B)(ii) and (iii) below, we decline to address it here. See Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). Even, if the Commission’s opinion could somehow be read to indicate that an argument based upon this statute was raised, the opinion contains no ruling concerning this statute. It was the appellant’s responsibility to obtain a ruling; a question not passed upon below presents no question for decision here. See W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996).