Heptinstall v. Asplundh Tree Expert Co.

• Decision Date: 10 December 2003
• Docket Number: No. CA 03-11.,CA 03-11.
• Citation: 137 S.W.3d 421,84 Ark. App. 215
• Parties: Mark HEPTINSTALL v. ASPLUNDH TREE EXPERT COMPANY and Reliance National Insurance Company.
• Court: Arkansas Court of Appeals

137 S.W.3d 421

84 Ark. App. 215

Mark HEPTINSTALL v. ASPLUNDH TREE EXPERT COMPANY and Reliance National Insurance Company.

No. CA 03-11.

Court of Appeals of Arkansas, Divisions I, IV.

December 10, 2003.

Parker Law Firm, Ltd., by: Tim S. Parker, Eureka Springs, for appellant.

Frye & Boyce, P.A., by: Andy L. Caldwell, Little Rock, for appellees.

KAREN R. BAKER, Judge.

The appellant employee in this case, Mark Heptinstall, worked for the employer, Asplundh Tree Expert Company, trimming and cutting trees and brush, clearing fence rows, chipping brush, and anything generally involving trimming and cutting trees and brush. Appellant and his supervisor testified that appellant routinely received scratches to his arm in the process of performing tree trimming duties related to his work. On or about November 6, 1999, a Saturday, appellant began to experience pain and discomfort in his left arm. He testified that in addition to the pain, there was a mild redness around one of the scratches on his forearm.

The following Monday, appellant sought treatment at the emergency room of the hospital. The physician in the emergency room obtained a blood count on appellant that indicated a markedly elevated white-cell count, elevated at the time to 25,000, with about 8,000 being normal. After receiving the result of that test, the emergency room physician consulted Dr. Don Vowell, an orthopedic surgeon, who admitted appellant to the hospital and performed surgery that afternoon.

Dr. Vowell testified that the elevated white-cell count indicated the presence of infection. He was anxious to get appellant to the operating room before the pressure from the swelling could shut off the blood flow to the muscles and kill them. He explained that when a patient has something that causes pressure from swelling, such as pus or blood, the pressure from the swelling can build up greater than the arterial blood pressure pumping blood into the compartments of the arm. If that happens, then within six hours the muscle dies. Once the muscle dies, no treatment can bring it back. When Dr. Vowell operated on appellant, he found pus associated with a deep infection of the forearm. The entire forearm had to be opened to relieve the pressure and ensure that blood could get into the muscle. He testified that cultures taken from the arm subsequently grew an alpha strep (staph A), a particularly dangerous bacterial organism that sometimes does not respond well to antibiotics.

Dr. Vowell opined that within a reasonable degree of medical certainty, the scratches on appellant's arm were the entry wound through which the staph A entered his body. He described the time frame and process through which the staph A would have entered the wound. He discussed the fact that staph A is an organism that's around us on everything that we might come in contact with, but that it has to have some entrance into the body through some opening. He identified the entry time of the staph A into appellant's body as anywhere from three to six days prior to the Monday that appellant entered the hospital. His opinion was based upon his application of the organism's normal progression upon entering the body. Dr. Vowell explained that once the organism enters the body through a break in the skin, it starts growing within a day or two. It first starts growing into the soft tissues and after it is established, the patient begins to experience pain. The pain increases substantially within forty-eight hours of the its onset resulting in severe pain for the patient. Appellant's history indicated that he had experienced pain on Saturday while lifting a battery. Dr. Vowell testified that this pain was consistent with an infection initiated a day or two before he experienced the pain while lifting. Approximately forty-eight hours after experiencing the first onset of pain, appellant sought treatment in the emergency room for excruciating pain and surgery was performed that afternoon. When asked if appellant might have received the scratches on his arm and later came into contact with the organism anywhere, Dr. Vowell confirmed that he could not say for sure where the organism was present and came into contact with the scratches on appellant's arm. However, given the length of the incubation period and the location of the infection underneath the scratches, he could state to a reasonable degree of medical certainty that the infection entered through the scratches received at work.

Dr. Vowell further explained that approximately fifty percent of the people die from infections such as the one appellant acquired. Dr. Vowell had personally changed appellant's dressing daily during the hospital stay and took appellant back to surgery a couple of times to clean the wound and close the wound. He testified that appellant would suffer some loss of strength resulting in a permanent impairment; however, he was still undergoing treatment and improving. He estimated that his permanent impairment rating would be ten-percent impairment to his upper extremity.

The Commission's Decision

The Commission denied benefits saying that appellant "seeks compensation in the present claim for an occupational disease" and denied benefits finding that he had failed to prove by clear and convincing evidence that he sustained a compensable occupational disease. However, appellant did not argue that he sought compensation for an occupational disease and the Commission erred as a matter of law when it classified the injury as an occupational disease. Therefore, we reverse and remand for further finding of fact to be made on whether appellant established the requirements, we remand the case to the Commission to make a finding of fact on whether appellant established the requirements of a compensable accidental injury under Ark.Code Ann. § 11-9-102(4)(a).

Standard of Review

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. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark.App. 1, 899 S.W.2d 482 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark.App. 5, 864 S.W.2d 871 (1993). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission's conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Keller v. L.A. Darling Fixtures, 40 Ark.App. 94, 845 S.W.2d 15 (1992).

The Commission also has the duty of weighing the medical evidence as it does any other evidence. Roberson v. Waste Mgmt., 58 Ark.App. 11, 944 S.W.2d 858 (1997). However, "[I]f the claimant's disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee's condition, we may say without hesitation that there is no substantial evidence to sustain the commission's refusal to make an award." Hall v. Pittman Constr. Co., 235 Ark. 104, 105, 357 S.W.2d 263, 263 (1962). Furthermore, an employee is not required to prove the source of an infection with absolute certainty because that is a manifest impossibility. See Dega Poultry Co. v. Tanner, 259 Ark. 396, 399, 533 S.W.2d 207, 209 (1976) ("Unless a claimant must prove the source of an infection with absolute certainty—a manifest impossibility—Tanner's proof amply supports the Commission's award."). In addition, the Commission cannot arbitrarily disregard any witness's testimony. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).

Applicable Law

First, we address the Commission's classification of appellant's infection with the staph A bacteria as an occupational disease. Where the condition involved is a disease (as opposed to an accidental injury), the claim is compensable only if the disease is an "occupational" one as defined in our Workers' Compensation Act and the claimant proves by clear and convincing evidence a causal connection between the employment and the disease. See Ark. Code Ann. § 11-9-102(4)—601(e) (Repl. 2002); Osmose Wood Preserving v. Jones, 40 Ark.App. 190, 843 S.W.2d 875 (1992). An "occupational disease" is defined as any disease that results in disability or death that arises out of or in the course of the occupation or employment. Ark.Code Ann. § 11-9-601(e)(1) (Repl.2002).

The fact that the general public may contract a disease is not controlling; the test of compensability is whether the nature of the employment exposes the worker to a greater risk of the disease than the risk experienced by the general public or workers in other employments. Osmose Wood Preserving v. Jones, supra; Sanyo Mfg. Corp. v. Leisure, 12 Ark.App. 274, 675 S.W.2d 841 (1984). An occupational disease is characteristic of an occupation, process or employment where there is a recognizable link between the nature of the job performed and an increased risk in contracting the occupational disease in question. Sanyo Mfg. Corp. v. Leisure, supra. The increased risk test differs from the peculiar risk test in that the distinctiveness of the employment risk can be contributed by the increased quantity of a risk that is qualitatively not peculiar to the employment. Crossett School Dist. v. Gourley, 50 Ark.App. 1, 3, 899 S.W.2d 482, 483 (1995) (citing 1 Arthur Larson, The Law of Workmen's Compensation § 6.30 (1994) (emphasis in original)).

The Commission's analysis in denying benefits...