Conway Convalescent Center v. Murphree , 266 Ark. 985 ( 1979 )

James H. Pilkinton, Judge.

This case was appealed to the Arkansas Supreme Court and by that court was assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The claimant-appellee suffered a back injury when she attempted to lift a patient in the course of her employment as an aide working for appellant-Convalescent Center. The administrative judge denied her claim for total disability compensation under the Arkansas Workers’ Compensation Act. Upon claimant’s appeal to the Workers’ Compensation Commission she was awarded compensation. The Circuit Court affirmed the finding of the Commission and the Convalescent Center lodged this appeal.

The appellant contends the award is not supported by substantial evidence in that all of the medical evidence indicated the claimant’s present problems to be unrelated to her compensable injury.

The claimant is a 5’4” female weighing between 275 and 295 lbs. The evidence shows the claimant to have been obese all of her adult life. In spite of her excessive weight she has been a physically active person. The record reflects a lifetime of strenuous physical activity. The claimant did farm labor, custodial work, lifted heavy trash containers, performed all the duties which accompany raising six children on a farm. In addition to her domestic chores she worked long hours away from her home. Claimant was excessively overweight when the Convalescent Center employed her. She worked one year and eight months and was able to perform the duties expected of her by her employer, the appellant. On April 28, 1977 the claimant injured her back while lifting a patient. Dr. Hall of Clinton was the first doctor examining the claimant. He referred her to an orthopedist, Dr. Runyan, who also referred her to Dr. Adametz, a neurologist. Later the claimant was examined by Dr. Smith of Conway who referred her to another orthopedist, Mr. Mulhollan. All of the doctors agree that claimant did hurt her back on the job. They all agree that she is totally disabled at present. They agree the claimant suffered a posterior longitudinal ligament strain on April 28 which began a “vicious cycle”. The pain from the injury initially kept the claimant immobile. The immobility has caused an increase in her weight. The obesity aggravates her condition, which causes pain, which keeps her immobile. The doctors agree the injury was the precipitating factor — or as Dr. Mulhollan expressed it “was the straw which broke the camel’s back”. The doctors indicate the disability at present is due to the claimant’s obesity and not due to the April 28 injury. The Workers’ Compensation Commission rightly held the back problem and the obesity are now inseparably intertwined in the so-called “vicious cycle”. The individual weakness of obesity cannot be fairly separated from the injury. The employer and its insurance carrier accepted this individual as a workers’ compensation risk at the time of her employment and throughout her employment. Her weakness, obesity, was obvious at the time she was hired.

The claimant contends the back injury aggravated a preexisting condition of degeneration of delicate tissues which had developed because of many years of hard physical labor engaged in by an enormously obese body.

Larson, Workmen’s Compensation Law, §12.20, p. 3-276, 3-307 states:

Pre-existing disease or infirmity of the employee does not disqualify a claim under the ‘arising out of employment’ requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. This is sometimes expressed by saying that the employer takes the employee as he finds him.

McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210 (1943); Green v. Lion Oil Co., 215 Ark. 305, 220 S.W.2d 409 (1949); Safeway Stores, Inc. v. Harrison, 231 Ark. 10, 328 S.W.2d 131 (1959). Also at p. 3-312 of Larson “ . . . The preexisting condition may be any kind of weakness.” Shainberg v. Dacus, 233 Ark. 622, 346 S.W.2d 462 (1961).

The claimant’s weakness is her degenerative disc disease with marked degenerative changes and also narrowing of two disc spaces which pre-existing condition continues to be chronic because of her obesity.

When an industrial injury precipitates a disability from a latent prior condition, such as heart disease, cancer, back disease and the like, the entire disability is compensable. McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W.2d 416 (1961); Wilson Hargett Constr. Co. v. Holmes, 235 Ark. 698, 361 S.W.2d 634 (1962); Finkbeiner, Inc. v. Flowers, 251 Ark. 241, 471 S.W.2d 772 (1971).

Whether or not employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by the Commission based on any medical testimony will not be overturned unless the evidence is insufficient to support the finding. Starrott v. Namour, 219 Ark. 463, 242 S.W.2d 963 (1951).

The Commission found that claimant has been temporarily and totally disabled beginning April 29, 1977, through a date yet to be determined for which claimant is entitled to compensation.

The Commission also ordered that: (1) the issue of permanent disability, if any, (2) the end of the healing period, and (3) vocational rehabilitation shall be held in abeyance pending further medical examination and possible treatment or surgery.

The above award and findings are supported by substantial evidence.

Affirmed.

Penix, J., dissents.