# Oliver v. Guardsmark, Inc.

> Court of Appeals of Arkansas · October 27, 1999 · 68 Ark. App. 24

URL: https://www.frixlaw.com/law-library/cases/9680718

## Case

- **Full name:** Bobby J. OLIVER v. GUARDSMARK, INC.
- **Court:** Court of Appeals of Arkansas
- **Decided:** October 27, 1999
- **Citations:** 68 Ark. App. 24; 3 S.W.3d 336; 1999 Ark. App. LEXIS 709
- **Precedential status:** Published
- **Opinion:** Dissent by Roaf
- **Judges:** Sam Bird
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680718

## Opinion text

Andree Layton Roaf, Judge, dissenting. I bebeve that Bobbie Oliver suffered an aggravation of his preexisting condition of the “tendency towards obesity” and would reverse the Commission’s denial of benefits on this point.
It is undisputed that Oliver had never been able to control his weight prior to his stomach-stapling procedure, and that he had reduced his weight after the surgery from approximately 310 pounds to 175 pounds with the additional help of a walking regimen prior to his 1989 compensable back injury. This fact distinguishes his case from those in which benefits were denied because the claimant’s obesity was deemed “volitional,” because the claimant had previously been able to control his weight through diet programs, or the claimant was already obese at the time of a leg injury and her disability was solely due to obesity and hypertension. See Hammer v. InterMed Northwest, 270 Ark. 262 , 603 S.W.2d 913 (1980); Shepherd v. Van Ohlen, 49 Ark. App. 36 , 895 S.W.2d 945 (1995).
In Conway Convalescent Center v. Murphree, 266 Ark. 985 , 588 S.W.2d 462 (1972), the court held that appellee’s “weakness” of obesity could not be fairly separated from the back injury. Mur-phree suffered a back injury when she attempted to lift a patient in the course of her employment. According to the evidence, she was obese all of her adult life. However, her excessive weight did not prevent her from being an active person, and her doctors agreed that she hurt her back on the job and that she was totally disabled. Like Oliver, pain from the injury caused her to be immobile, and her immobility caused an increase in her weight; the court stated: “The obesity aggravates her condition, which causes pain, which keeps her immobile.” Her doctors opined that her disability was due to the obesity and not her compensable back injury. However, the court, in affirming the Commission, stated: “The Workers’ Compensation Commission righdy 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.” According to the court, the insurance carrier accepted the employee as a workers’ compensation risk at the time of her employment and throughout her employment because “[H]er weakness, obesity, was obvious at the time she was hired.”
Here, according to Dr. Jim Moore, Oliver’s “tendency towards obesity” was a preexisting condition. Other than Oliver’s testimony about his eating habits, there is no indication in the record and it indeed defies logic to assume that Oliver’s obesity was not the result of caloric intake. In fact, the Commission specifically found that Oliver was “not able to change his lifestyle in the past nine years.” However, after Oliver’s previous surgery to help his condition, he became very active and was able to maintain his weight. When the pain from his injury caused him to be immobile, he gained the weight back. Oliver’s back problems and obesity are now inseparably intertwined in a ‘vicious cycle’ because he cannot have surgery to correct the back problem until he loses weight. As in Conway, the insurance carrier accepted this individual as a workers’ compensation risk at the time of his employment and throughout his employment. See also Perry v. Leisure Lodges, Inc., 19 Ark. App. 143 , 718 S.W.2d 114 (1986).
Here, Oliver’s obesity was not “volitional” as defined in Shepherd, and his obesity recurred immediately after his back injury and resulting immobility. The Commission has disregarded its own prior holdings in penalizing him for his condition. Oliver’s need for treatment should be a compensable consequence of the original 1989 injury, and I would reverse and remand for an award of benefits.
Hart, J., joins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680718. Public record. Not legal advice.