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Georgia-Pacific Corp. v. Miles9/20/2000
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
Georgia-Pacific appeals a decision of the Workers' Compensation Commission that awarded a second period of temporary total disability to Ray Miles, appellee, for a compensable knee injury. Appellant contends that the Commission's decision is not supported by substantial evidence and should be reversed. We disagree.
On August 21, 1997, appellee twisted his right knee when he stepped on a broken surface in an old kiln. About two weeks later, he stepped down off a forklift and his knee went out again; he has not worked since. Appellant initially accepted the injury as compensable, and it paid medical and temporary total disability benefits until November 5, 1997. It continued to pay for the medical treatment but disputed entitlement to temporary total benefits beyond that date because it claimed that appellee's psoriasis was an independent intervening cause preventing the surgery needed to repair his knee.
A hearing was conducted before an administrative law judge. He found that appellee remained totally disabled and therefore was entitled to payment of temporary total disability benefits from November 5, 1997, until such time as the healing period should end or appellee should be released to return to work. The Commission modified the award by finding that the disputed period of temporary total disability had ended on January 27, 1998. Appellee did not cross-appeal the finding that this additional period of temporary total disability ended on that date.
Appellant cites Ark. Code Ann. § 11-9-102(5)(F)(iii) (Repl. 1996), in support of its contention that no substantial evidence supports the Commission's finding that appellee is entitled to temporary total benefits beyond November 5, 1997. The statute 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 a claimant. Ark. Code Ann. § 11-9-102(5)(F)(iii) (Repl. 1996).
Appellant notes that the section did not exist in our workers' compensation statutes prior to enactment of Act 796 of 1993. As it did below, it contends that section 11-9-102 precludes the award of an additional period of total temporary disability for appellee, arguing that the previously applicable case law was repealed when the act became effective.
The Commission found that the only disabling injury was appellee's work-related knee injury. It found that claimant proved the necessary causal connection between his work-related knee injury and the period of disability (through January 27, 1998). It also found that it had the obligation to determine whether the period of disability following his psoriasis flare-up was triggered by activity of appellant that was unreasonable under the circumstances. Finding no evidence of unreasonable activity, it found no independent intervening cause and awarded temporary total disability from November 5, 1997, to January 27, 1998. The Commission's opinion relied in part upon the following statement from Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 167-68, 969 S.W.2d 677, 680 (1998):
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. Guidry v. J & R Eads Constr. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984).
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