City of Fouke v. Buttrum

CITY of FOUKE v. Patsy BUTTRUM

CA 97-474                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered December 3, 1997


1.   Workers' compensation -- appellant's reliance on Hall's
     Cleaners v. Wortham misplaced -- issue different. --  
     Appellant's reliance on Hall's Cleaners v. Wortham, 38 Ark.
     App. 86, 829 S.W.2d 424 (1992) was misplaced; the issue in
     that case involved only the question of when an injury becomes
     compensable so as to activate the running of the statute of
     limitations; here, the appellate court was determining, as a
     prerequisite, which act governed this particular claim, not
     deciding an issue that would already be governed by one of the
     acts, i.e., when the injury became compensable for statute of
     limitations purposes.

2.   Workers' compensation -- Act 796 of 1993 -- when applicable. -
     - The provisions of Act 796 of 1993 apply only to injuries
     that occur after July 1, 1993; there is neither case law nor
     any indication in Act 796 that "injury" means compensable
     injury for purposes of when Act 796 becomes effective.

3.   Workers' compensation -- appellee's injury objectively
     confirmed on June 7, 1993 -- Commission properly found Act 796
     inapplicable. -- The Commission did not err in determining
     that Act 796 of 1993 did not apply to this case because it was
     uncontradicted that appellee's injury was objectively
     confirmed as carpal tunnel syndrome on June 7, 1993; thus, the
     date that appellee's injury occurred was before Act 796 became
     effective. 

4.   Workers' compensation -- factors on review -- substantial
     evidence defined. -- Decisions of the Workers' Compensation
     Commission are reviewed to see if they are supported by
     substantial evidence; substantial evidence is that which a
     reasonable person might accept as adequate to support a
     conclusion; the Commission's decision will be affirmed unless
     fair-minded persons presented with the same facts could not
     have arrived at the conclusion reached by the Commission.

5.   Workers' compensation -- appellee found temporarily totally
     disabled -- Commission's decision supported by substantial
     evidence. -- Where the Commission noted that surgery had yet
     to be performed because of appellant had controverted
     appellee's claim, the Commission consequently found appellee
     temporarily totally disabled based on appellee's credible
     testimony that she could work if it were not for her hands,
     and also recognizing the need to protect appellee from
     increased damage to her condition, which her physician opined
     was already "irreversible"; based on the medical evidence,
     which indicated severe carpal tunnel syndrome related to
     appellee's work, and appellee's testimony that she had no
     feeling in her right hand and that she could not work, the
     Commission's decision was supported by substantial evidence.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     J. Chris Bradley, for appellant.
     Craig L. Henry, for appellee.

     Judith Rogers, Judge. 
     This is an appeal from the Workers' Compensation Commission's
decision finding that Act 796 of 1993 did not apply to this case
and that appellee proved by a preponderance of the credible
evidence that she sustained a compensable injury and was entitled
to temporary total disability benefits from December 1, 1994,
through a date yet to be determined.  On appeal, appellant argues
that the Commission erred in determining that Act 796 of 1993 did
not apply and that there was no substantial evidence to support the
Commission's decision.  We disagree and affirm.
     First, appellant argues that the Commission erred in
determining that appellee's claim was not governed by Act 796 of
1993.  Appellant contends that appellee did not sustain her injury
until after Act 796 was in effect because she did not suffer a loss
in earnings until December 1, 1994.  Appellant cites Hall's
Cleaners v. Wortham, 38 Ark. App. 86, 829 S.W.2d 424 (1992), in
support of its proposition.  We find appellant's reliance on Hall's
Cleaners misplaced.  In Hall's Cleaners, we said that, for purposes
of the running of the statute of limitations, the statute does not
begin to run until the true extent of the injury manifests and
causes an incapacity to earn the wages that the employee was
receiving at the time of the accident.  The issue in that case
involved only the question of when does an injury become
compensable so as to activate the running of the statute of
limitations.  In this case, on the other hand, we are determining,
as a prerequisite, which act governs this particular claim.  We are
not deciding an issue that would already be governed by one of the
acts, i.e., when the injury became compensable for statute of
limitations purposes.
     In our case of Atkins Nursing Home v. Gray, 54 Ark. App. 125,
923 S.W.2d 897 (1996), we made it clear that the provisions of Act
796 of 1993 shall apply only to injuries that occur after July 1,
1993.  There is no indication in Act 796 or our opinion in Atkins
Nursing Home that "injury" means compensable injury for purposes of
when Act 796 becomes effective.  In Atkins, we affirmed the
Commission's finding that the claimant suffered a recurrence on
August 20, 1993.  If we had determined that the claimant had not
suffered a recurrence, but a new injury, then Act 796 would have
been applicable to the facts of that case.
     Here, the Commission determined that: 
          [w]here a claimant demonstrates the
          manifestation of an obvious and unresolved
          physical injury prior to the effective date of
          Act 796, which we find below that claimant in
          the instant case has done, the same logic as
          that relied on in Atkins ought to be
          applicable (regardless of whether a claim was
          previously filed).  With regard to relevant
          statutory provisions, Act 796 itself provides
          that it "shall apply only to those injuries
          which occur after July 1, 1993"(See "effective
          dates" section preceding Ark. Code Ann.  11-
          9-101 (Repl. 1996).  There is no accompanying
          provision stating or implying that an "inju-
          ry", for purposes of determining whether the
          Act applies, is deemed to have occurred only
          upon a loss of wages.  Nor can we impose such
          a rule in light of our statutory duty to
          strictly construe the new Act.

     We cannot say that the Commission erred in determining that
Act 796 of 1993 did not apply to this case because it is
uncontradicted that appellee's injury was objectively confirmed as
carpal tunnel syndrome on June 7, 1993.  Thus, the date that
appellee's injury occurred was before Act 796 became effective. 
Based on our resolution of this issue, we need not address
appellant's remaining arguments that involve Act 796 of 1993.  
     Appellant does argue under the old act, however, that there is
no substantial evidence to support the Commission's finding that
appellee's injury arose out of and in the course of her employment.
Appellant contends that there is no substantial evidence to support
a finding that appellee's inability to work after November 30,
1994, was related to her employment with appellant.  Also,
appellant argues that appellee was not entitled to temporary total
disability benefits.
     We review decisions of the Workers' Compensation Commission to
see if they are supported by substantial evidence.  Kildow v.
Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997). 
Substantial evidence is that which a reasonable person might accept
as adequate to support a conclusion.  Olsten Kimberly Quality Care
v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).  The Commission's
decision will be affirmed unless fair-minded persons presented with
the same facts could not have arrived at the conclusion reached by
the Commission.  Id.
     The record reveals that appellee worked for eleven and a half
years, read water meters four to five hours a day, and wrote, in
duplicate by hand, 250 to 300 water bills and receipts for each
payment.  During the last two years of her employment, appellee
used a computer to enter all of the data.  Appellee testified that
she began experiencing pain in her hands in 1988, and that she
mentioned it to at least two people, one being her supervisor at
work.  Appellee's condition grew worse.  Mayor Jane Roberts,
appellee's supervisor, testified that she saw appellee's hands and
said that they were "swelled, bad, and I said, Pat, what is that,
and what caused that, and she it [sic] was carpal...tunnel
syndrome."  Appellee testified that her hands hurt so badly that
she thought she had suffered a stroke.  She also said that her
right hand was completely "dead" and had no feeling and that her
left hand ached at night.
     As early as July 20, 1992, Dr. Sam Brown believed that
appellee was suffering from carpal tunnel syndrome.  He prescribed
medication and a splint, and he noted that a conduction test could
be required in the future.  Subsequently, Dr. Brown diagnosed
appellee with carpal tunnel syndrome on June 7, 1993.  He noted
that the result of her NCV was positive for carpal tunnel, and it
was his impression that she had bilateral carpal tunnel syndrome. 
He referred appellee to Dr. Richard Hilborn.  On June 18, 1993,
appellee saw Dr. Hilborn, who found that appellee was a candidate
for bilateral carpal tunnel release.  Dr. Charles Hollingsworth saw
appellee and noted that appellee did have bilateral carpal tunnel
syndrome and that she had "irreversible damage and permanent
sensory loss."  He related appellee's carpal tunnel to her job
duties with the city.  He said, "I certainly feel that this
patient's symptoms arose during her employment at Fouke City Hall
and her job duties appear to have been the major instigating source
of her problems."  Dr. Hilborn also noted that, based on appellee's
work history, it was certainly possible that her present condition
was related to her former job.
     Drs. Hilborn and Hollingsworth both recommended that appellee
undergo corrective surgery.  In its decision, the Commission noted
that surgery had yet to be performed because of appellant had
controverted appellee's claim.  The Commission, consequently, found
appellee temporarily totally disabled based on appellee's credible
testimony that she could work if it were not for her hands, and
also recognizing the need to protect appellee from increased damage
to her condition, which Dr. Hollingsworth opined was already
"irreversible."  Based on the medical evidence, which indicates
severe carpal tunnel syndrome related to appellee's work, and
appellee's testimony that she had no feeling in her right hand and
that she cannot work, we cannot say that the Commission's decision
is not supported by substantial evidence.
     Affirmed.
     Robbins, C.J., and Neal, J., agree.