Kuhn v. Majestic

Ronald KUHN v. MAJESTIC HOTEL

95-700          ___ S.W.2d ___

   Supreme Court of Arkansas
  Opinion delivered March 25,
1996


1.   Workers' compensation --
     standard of review by
     supreme court. -- The
     Arkansas Supreme Court
     reviews a decision of the
     Arkansas Court of Appeals
     under Ark. Sup. Ct. R.
     1-2(f) as though the case
     had been originally filed
     in the supreme court; on
     appeal of a workers'
     compensation case from
     the court of appeals to
     the supreme court, the
     evidence is viewed in the
     light most favorable to
     the Workers' Compensation
     Commission's decision and
     is affirmed if that
     decision is supported by
     substantial evidence;
     substantial evidence
     exists if reasonable
     minds could have reached
     the same conclusion;
     before the Commission's
     decision is reversed, the
     supreme court must be
     convinced that
     fair-minded persons
     considering the same
     facts could not have
     reached the conclusion
     made by the Commission.

2.   Workers' compensation --
     credibility is matter
     exclusively within
     Commission's province. --
     The supreme court defers
     to the Workers'
     Compensation Commission
     regarding the issue of a
     petitioner's credibility
     as a matter exclusively
     within the Commission's
     province.

3.   Workers' compensation --
     "course of employment"
     defined. -- The term
     "course of employment,"
     as applied to
     compensation for
     injuries, refers to the
     time, place, and
     circumstances under which
     the injury occurs.

4.   Workers' compensation --
     even unexplained or
     idiopathic fall may
     result in compensable
     injuries. -- Regardless
     of whether water was on
     the floor at the time
     petitioner fell, it is
     well-established that
     even an unexplained fall
     or a so-called idiopathic
     fall, which originates
     with a risk that is
     personal to the employee,
     may result in compensable
     injuries.

5.   Workers' compensation --
     no substantial evidence
     that petitioner failed to
     prove causal connection
     between fall and
     subsequent surgery --
     case reversed and
     remanded. -- On the basis
     of the record, the
     supreme court did not
     find substantial evidence
     that petitioner failed to
     prove that there was any
     causal connection between
     his March 1992 fall at
     respondent hotel and his
     May 1992 back surgery;
     one physician's opinion
     that surgery was not
     indicated for
     petitioner's condition
     was not pertinent to the
     causation issue; the
     record contained no
     evidence that
     petitioner's congenital
     back problem or earlier
     back surgery caused the
     May 1992 surgery; the
     record did reveal that
     petitioner was released
     to return to work in
     October 1990 after the
     earlier back surgery and
     that petitioner worked
     thereafter, without
     problem, prior to his
     fall at the hotel; thus,
     the supreme court
     determined that
     fair-minded persons
     considering the same
     facts could not have
     reached the Commission's
     conclusion and reversed
     and remanded the case to
     the Commission for award
     of benefits.


     Petition for Review from
the Arkansas Court of Appeals;
reversed and remanded.
     Donald C. Pullen, for
petitioner.
     Walter A. Murray, for
respondent.

     Donald L. Corbin,
Justice.3-25-96   *ADVREP5*






RONALD KUHN,
                    PETITIONER,

V.

MAJESTIC HOTEL,
                    RESPONDENT,



95-700



PETITION FOR REVIEW FROM THE
ARKANSAS COURT OF APPEALS




REVERSED AND REMANDED.



                   Donald L. Corbin, Justice.

     Petitioner, Ronald Kuhn, appealed a decision of the Arkansas
Workers' Compensation Commission to the Arkansas Court of Appeals,
which affirmed the Commission's decision by a tie vote.  Kuhn v.
Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995).  We granted
this petition for review of the decision of the court of appeals
pursuant to Ark. Sup. Ct. R. 1-2(f).  We reverse and remand.
     Petitioner contends that he sustained a compensable low-back
injury when he slipped and fell on the job at the Majestic Hotel in
Hot Springs on March 20, 1992, which resulted in back surgery on
May 21, 1992.  The Commission reversed the decision of the
Administrative Law Judge and dismissed petitioner's claim.  The
Commission found that petitioner failed to prove by the
preponderance of the credible evidence that he was injured in the
course and scope of his employment, and that there was any causal
connection between the surgery and the alleged slip and fall.  
     In reviewing this case, we apply the following standard:
     We review a decision of the Arkansas Court of
Appeals under Ark. Sup. Ct. R. 1-2(f), as though the case
had been originally filed in this court.  On appeal of a
workers' compensation case from the court of appeals to
this court, we view the evidence in the light most
favorable to the commission's decision and affirm that
decision if it is supported by substantial evidence. 
Substantial evidence exists if reasonable minds could
have reached the same conclusion.  Thus, before we
reverse the commission's decision, we must be convinced
that fair-minded persons considering the same facts could
not have reached the conclusion made by the commission. 

Plante v. Tyson Foods, Inc., 319 Ark. 126, 127-28, 890 S.W.2d 253, 253-54 (1994) (citations omitted).
     Three witnesses testified at the hearing on petitioner's
claim:  petitioner; Russell Kinsey, his supervisor; and Penny Kuhn,
his spouse.  Documentary medical evidence in the form of hospital
reports and physicians' medical notes and correspondence was
introduced, as well as the depositions of petitioner's physicians,
internist Gopakumar Maruther and neurosurgeon James M. Arthur.
     Petitioner testified that, on March 20, 1992, he had been
employed by respondent as a cook for two or three months.
Petitioner stated that his right leg was stiff as a result of a
total knee fusion that predated his employment with respondent, but
that he was having no problems with the knee and was working an
average of ten to fourteen hours per day, six days per week before
the fall.  Petitioner stated that a female co-worker asked him to
retrieve a ham from the hotel's walk-in cooler, that he walked to
the cooler and had his hand on its door trying to open it when he
slipped in water on the floor and hit a corner of the concrete wall
six feet from the cooler with the lower-right part of his back. 
Petitioner stated that he fell to the floor screaming because his
right leg was going numb and his back was hurting.     
     Mr. Kinsey testified that, as of March 20, 1992, he was the
executive chef, that petitioner had been working under his
supervision for a couple of months and was a good worker whose only
physical complaint had been that his leg tired on the longer days. 
Mr. Kinsey stated that he arrived at the scene two or three minutes
after petitioner's fall, and that three other persons were there
when he arrived.  Mr. Kinsey stated that petitioner seemed to be in
pain and that he did not move petitioner.  Mr. Kinsey testified
that petitioner lay on the floor about eighteen inches from the
wall with his head toward the wall and his feet toward the door. 
Mr. Kinsey testified that if petitioner had fallen straight down,
he could see that petitioner's back could have hit the wall because
"it is a tight little area back there."  Mr. Kinsey testified that
petitioner told him that he had slipped in water, that Mr. Kinsey
looked around and said: "Where is the water?" because he did not
see any, and that petitioner replied:  "Well, I guess my uniform
mopped it up."  Mr. Kinsey testified that it did not look like
petitioner's uniform had water on it.  Mr. Kinsey opined that,
although it was not unusual for condensate to form on the tile
floor outside the cooler, no water was there when petitioner fell. 
Mr. Kinsey stated that he was present when emergency-medical
technicians picked up petitioner from the floor.
     The record shows that petitioner was transported by ambulance
to the emergency room of St. Joseph's Regional Health Center where
he was diagnosed with acute lumbar strain and released with
directions for bed rest, heat, medication, and follow up with
Dr. Maruther.  Mrs. Kuhn testified that, when petitioner was
brought home from the hospital on March 20, 1992, he was wearing
his uniform, and the back was wet and had dirt all over it. 
Petitioner was subsequently examined by several physicians and, on
May 21, 1992, underwent back surgery, which, he testified,
eliminated the numbness in his right leg and alleviated his back
pain.
     The Commission's stated reasons for its finding that
petitioner failed to prove by the preponderance of the credible
evidence that he was injured in the course and scope of his
employment were that no one corroborated the existence of the water
on the floor, petitioner did not persuade that he was thrown
backward approximately six feet before hitting a wall and falling
to the ground, and petitioner's credibility was questionable.  We
defer to the Commission as regards the issue of petitioner's
credibility as a matter exclusively within the Commission's
province.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521
(1989); Roberts-McNutt, Inc. v. Williams, 288 Ark. 587, 708 S.W.2d 87 (1986).  Focusing exclusively on the other evidence, we do not
find substantial evidence that petitioner failed to prove that he
was injured in the course and scope of his employment.  
     The term "course of employment," as applied to compensation
for injuries, refers to the time, place, and circumstances under
which the injury occurs.  Deffenbaugh Indus. v. Angus, 39 Ark. App.
24, 832 S.W.2d 869 (1992).  Mr. Kinsey testified that he found
petitioner in pain on the floor at petitioner's workplace during
petitioner's work shift.  The record reveals that petitioner is a
large man, who measures six feet, four inches tall and, in March
1992, weighed approximately 280 pounds.  Mr. Kinsey opined that, if
petitioner had fallen straight down, his back could have hit the
concrete wall six feet away.  Regardless of whether water was on
the floor, it is well-established that even an unexplained fall or
a so-called "idiopathic fall," which originates with a risk that is
personal to the employee, may result in compensable injuries. 
Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496
(1987).    
     The Commission's stated reasons for its finding that
petitioner failed to prove that there was any causal connection
between the May 1992 surgery, which was performed by Dr. Arthur on
the right side of petitioner's back at the fourth and fifth lumbar
vertebrae ("L4-L5"), and the fall at the hotel were that petitioner
had a history of back problems and that orthopedic surgeon Dr. John
L. Wilson, to whom respondent referred petitioner, opined that
surgery was not warranted.  More specifically, the Commission noted
that petitioner had been diagnosed with a congenital anomaly of the
vertebrae known as spina bifida occulta, that medical notes from
1978 indicated that the space between petitioner's fifth lumbar and
first sacral vertebrae ("L5-S1") was abnormal, and that petitioner
underwent back surgery in 1990 at the L4-L5 level as a result of an
injury suffered in an automobile accident. 
     On March 23, 1992, Dr. Maruther examined petitioner and
ordered a CT scan of the lumbar spine.  Dr. Maruther diagnosed
petitioner with "low back pain due to a fall" and noted a prominent
central bulging disc at the L4-L5 level.  Dr. Maruther testified
that the cause of the bulging disc and the back problems for which
he treated petitioner in 1992 could have been petitioner's fall at
the hotel.  Dr. Maruther testified further that he had treated
petitioner for various medical problems, including, in 1978, spina
bifida occulta, a condition that causes back pain in some adults,
and that petitioner had a minimal joint space narrowing at the L5-
S1 level at that time.  
     Dr. Arthur testified that, more than two years before, he
performed surgery at petitioner's L4-L5 level as a result of an
automobile accident.  Dr. Arthur testified further that petitioner
had recovered fairly well from that surgery, that he had released
petitioner to light duty in October 1990, and that he had not seen
petitioner again until April 1992.  Dr. Arthur testified that,
consistent with his usual office practice, his secretary had
established that petitioner was "a workmen's comp case" before he
saw petitioner by confirming with the workers' compensation carrier
that petitioner had had a back injury at work.  
     Dr. Wilson's letter to the carrier regarding his examination
of petitioner in April 1992 was introduced into evidence at the
hearing.  As to the cause of the injury, Dr. Wilson states that
petitioner injured himself while gainfully employed by respondent
on March 20, 1992, and that petitioner related that he fell,
injuring his back.  Dr. Wilson diagnosed petitioner with a
lumbosacral strain with degenerative disc disease for which surgery
was not indicated.       
     Finally, the record shows that, at the request of Dr. Arthur,
petitioner was examined by orthopedic surgeon Dr. Stuart McConkie,
whose consultation report, dated May 18, 1992, was introduced into
evidence at the hearing.  As to the cause of the injury, Dr.
McConkie stated that petitioner slipped and fell at work, struck
his back and developed back pain.  Dr. McConkie stated that surgery
was indicated.
     On this record, we do not find substantial evidence that
petitioner failed to prove that there was any causal connection
between the fall at the hotel and the May 1992 surgery. 
Dr. Wilson's opinion that surgery was not indicated for
petitioner's condition is not pertinent to the causation issue. 
The record contains no evidence that petitioner's congenital back
problem or earlier back surgery caused the May 1992 surgery.  The
record does reveal that petitioner was released by Dr. Arthur to
return to work in October 1990 after the earlier back surgery and
that petitioner worked thereafter, without problem, prior to his
fall at the hotel.  
     For the reasons stated above, we conclude that fair-minded
persons considering the same facts could not have reached the
conclusion made by the Commission.  Thus, the case is reversed and
remanded to the Commission for award of benefits.
     Reversed and remanded.