Davis v. Old Dominion Freight Line, Inc.

Layton Roaf, Judge.

Andree Randy Davis appeals an order from the Workers’ Compensation Commission denying him additional temporary total disability and medical benefits based on a finding that his current period of disability was the result of a noncompensable, independent intervening cause. On appeal, Davis argues that the Commission’s order is not supported by substantial evidence and is erroneous as a matter of law. We agree that the Commission erred as a matter of law, and we reverse and remand.

Davis sustained an admittedly compensable right-ankle injury on April 4, 1996, while working as a truck driver for Old Dominion Freight Lines (Old Dominion). On September 11, 1996, Dr. Jay Lipke performed a surgical repair of a partial dislocation of the peroneal tendons. Davis subsequently was diagnosed with a blood clot that required a period of hospitalization and anticoagulant medication. However, Dr. Lipke s notes of November 1, 1996, reflected that Davis’s wound was well-healed, that he demonstrated good range of motion in his ankle, that there was no evidence of subluxation of the tendon, and that it was anticipated that he would be released to return to work when his blood-clot condition stabilized.

According to Davis, on November 13, 1996, while trying to avoid stepping on his two-year-old niece, he stepped awkwardly on his ankle and heard a loud pop. Davis presented to Dr. Lipke, who initially treated this injury as a sprain, but his notes of December 2, 1996, and December 9, 1996, indicate that the incident, although minor, disrupted the surgical repair because the healing process was incomplete.

Davis sought additional workers’ compensation benefits for his ankle complaints, which were controverted by Old Dominion. After a hearing, an administrative law judge (ALJ) found that the November 13, 1996, injury constituted an independent intervening cause, and therefore Davis failed to prove his entitlement to additional benefits. On a divided vote, with “majority,” concurring, and dissenting opinions, the Commission affirmed and adopted the ALJ’s findings.¹

We first consider Davis’s argument that the Commission’s opinion is erroneous as a matter of law in that it applied the wrong legal standard. Davis acknowledges that our current workers’ compensation law codified at Ark. Code Ann. § 11-9-102(5) (F) (iii) (Supp.1997) provides that a disability caused or prolonged by a nonwork-related independent intervening cause shall be non.com-pensable, but argues that this section simply codified then-existing case law. He further asserts that this court’s recent decisions in Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998), and Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), indicate that the new act has not changed the relevant analysis of independent-intervening-cause cases. Davis claims that the ALJ’s conclusion that the November 13, 1996, incident was an independent intervening cause is erroneous because he applied a simple “but for” causation test. He asserts that the ALJ’s reasoning, which was adopted by the Commission, was flawed because if it were the law it would render noncompensable any work-related disability that is prolonged by nonwork-related intervening causes. Davis contends that this interpretation was rejected by this court in Oak Grove Lumber Co. v. Highfill, supra, and Georgia-Pacific Corp. v. Carter, supra, and asserts that Act 796 was not intended to relieve employers of responsibility when “minor trauma” disrupts a healing process. This argument has merit.

We are not unmindful of the legislative declaration of Act 796, “all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act” are nullified (Ark. Code Ann. § 11-9-1001 (Repl. 1996)), and that Ark. Code Ann. § ll-9-102(5)(F)(iii) was not found in Arkansas’s prior workers’ compensation statute. However, we agree with Davis that this section is not a blanket legislative repeal of our prior decisions on this subject. Accordingly, the case law regarding independent intervening causes also remains in force for new act cases. See Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).

Arkansas Code Annotated § 11 — 9—102(5)(F) (iii) provides:

Under this subdivision (4)(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 Commission adopted the ALJ’s opinion that, in discussing this section, stated “Act 796 no longer requires negligence or recklessness on the part of a claimant for a finding of independent intervening cause.” However, in Guidry v. J & R Eads Const. Co., 11 Ark. App. 219, 223, 669 S.W.2d 483, 485 (1984), citing favorably to Larsen’s treatise on workers’ compensation law, this court determined that the overriding issue in cases involving subsequent injury or disability is “whether there is a causal connection between the primary injury and the subsequent disability,” and only if such a connection exists does the question of the claimant’s conduct need to be addressed. (Emphasis added.) We concluded that in such circumstances “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.” Id. at 224, 669 S.W.2d at 486. Consequently, because negligence or recklessness on the part of a claimant was not required for a finding of independent intervening cause under our prior law, the Commission’s reasoning was flawed, or it was based on an incorrect premise.

Moreover, while we find Davis’s reliance on Oak Grove Lumber Co. v. Highfill, supra, to be misplaced because in that opinion this court declined to consider the appellant’s argument regarding the interpretation of Ark. Code Ann. § 11-9-102(5) (F(iii), we agree that our decision in Georgia-Pacific Corp. v. Carter, supra, set forth the correct legal standard. In Carter, 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. Id. (citing Guidry v. J & R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984)).

In the instant case, the Commission did not address the issue of causal connection and did not find that Davis’s effort to avoid stepping on his two-year-old niece was unreasonable under the circumstances, but merely found that the incident at his sister’s house necessitated the additional medical treatment and surgery and for that reason alone was an independent intervening cause. Certainly, where Davis was cleared by his doctors to walk around, avoiding stepping on and possibly injuring a young child could be found to be entirely reasonable. 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-Pacfic Corp. v. Carter, supra, and Guidry v. J & R Eads Constr. Co., supra, 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.

Reversed and remanded.

Pittman and Hart, JJ., agree, Hays, S.J., concurs. BIRD and GRIFFEN, JJ., dissent.

1 Although Davis does not specifically make this point in his statutory-construction argument, we note that the ALJ’s opinion, which was adopted by the Commission, contains a clearly incorrect interpretation of Ark. Code Ann. § 11 -9-102(5) (F) (iii). According to the opinion, that section requires a finding of independent intervening cause “when a subsequent incident ‘causes or prolongs disability or a need for treatment.’ ”