Appleby v. Belden Corp.

• Decision Date: 04 November 1987
• Docket Number: No. CA,CA
• Citation: 22 Ark.App. 243,738 S.W.2d 807
• Parties: Joan APPLEBY, Appellant, v. BELDEN CORPORATION and Liberty Mutual Insurance Company, Appellees. 87-167.
• Court: Arkansas Court of Appeals

Page 807

738 S.W.2d 807

22 Ark.App. 243

Joan APPLEBY, Appellant, v. BELDEN CORPORATION and Liberty Mutual Insurance Company, Appellees.

No. CA 87-167.

Court of Appeals of Arkansas Division I.

Nov. 4, 1987.

James L. Tripcony, Little Rock, for appellant.

Elizabeth J. Robben, James C. Baker, Little Rock, for appellees.

JENNINGS, Judge.

This is a workers' compensation case. Joan Appleby sustained a compensable injury to her back when she tripped and fell in the parking lot of her employer, Belden Corporation, on June 2, 1983. Her healing period was determined to have ended on December 6, 1983. She received benefits including 5% permanent partial disability. In 1984, her primary physician, Dr. Saer, said that Appleby "should probably be on some form of activity restriction indefinitely. This would involve limited bending and stooping, no heavy lifting over about 25 pounds, and no prolonged sitting or standing."

Mrs. Appleby did not return to work for Belden Corporation and has not sought other employment, but in the spring of 1985 she began helping her husband paint houses. The work was sporadic: she might work as many as six, or as few as three, days a week. Her work involved some carrying of a 14 pound ladder from which she painted. She testified that she had bouts of pain in her back and legs during the time period she was engaged in painting.

On October 9, 1985, Appleby cleaned her house, mopped the floors, went to a funeral, and picked up hickory nuts from her backyard. That evening she had more pain in her back and legs. On October 10, 1985, she painted with her husband briefly and by that night she was in so much pain that she called Dr. Saer and made an appointment to see him the next day. On October 13, 1985, she again contacted Dr. Saer and asked to be hospitalized. Dr. Saer put her in the hospital on October 17. He testified that "probably her symptoms were caused by her activity level prior to her admission. When you consider her problem from before, the activities such as mopping the floor and painting would be sufficient to cause the type of problems she experienced when I hospitalized her."

The appellant subsequently filed a claim for additional compensation. The Commission held that her activities prior to her hospitalization constituted an independent intervening cause and denied the claim.

Appellant's first argument is that this finding is not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). On review, in workers' compensation cases, we view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission. McCollum v. Rogers, 238 Ark. 499, 382 S.W.2d 892 (1964). We do not reverse the Commission's decision unless we are convinced that fairminded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Silvicraft, Inc. v. Lambert, 10 Ark.App. 28, 661 S.W.2d 403 (1983).

The issue in Guidry v. J & R Eads Construction Co., 11 Ark.App. 219, 669 S.W.2d 483 (1984), was the same as the issue here. In Guidry, we said that the question is whether there is a causal connection between the primary injury and the subsequent disability; and if there is such a connection, there is no independent intervening cause unless the subsequent disability was triggered by activity on the part of the claimant which was unreasonable under the circumstances.

One of the circumstances which should be considered in deciding if the "triggering activity" was reasonable is the claimant's knowledge of his condition. See Larson, The Law of Workmen's Compensation § 13.11 (1986). In this case Dr. Saer testified:

I explained to her that she had an injury to her back and she is likely to have problems with her back, depending on her activity level in the future and she will be able to control her symptoms by controlling her activity. We had gone through this before and she had been to the back school before. A lot of people have this problem and...