St. Vincent Infirmary Medical Ctr. v. Constance Brown

ST. VINCENT INFIRMARY MEDICAL CENTER v.
Constance BROWN

CA 95-462                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                Opinion delivered March 20, 1996


1.   Workers' compensation -- standard of review. -- When reviewing
     a decision of the Workers' Compensation Commission, the
     appellate court views the evidence and all reasonable
     inferences deducible from it in the light most favorable to
     the findings of the Commission and affirms that decision if it
     is supported by substantial evidence; the issue is not whether
     the appellate court might have reached a different result or
     whether the evidence would have supported a contrary finding;
     if reasonable minds could reach the Commission's conclusion,
     the appellate court must affirm its decision.

2.   Workers' compensation -- "compensable injury" defined. --
     Under Ark. Code Ann.  11-9-102(5)(A)(i) (Supp. 1995),
     "compensable injury" is defined, in part, as an accidental
     injury causing internal or external physical harm to the body
     arising out of and in the course of employment and which
     requires medical services or results in disability or death;
     an injury is "accidental" only if it is caused by a specific
     incident and is identifiable by time and place or occurrence.

3.   Workers' compensation -- employer takes employee as he finds
     him. -- Although appellee had other episodes in her past when
     her shoulder popped out, the employer "takes the employee as
     he finds him," and employment circumstances that aggravate
     pre-existing conditions are compensable.

4.   Workers' compensation -- Commission's decision in appellee
     claimant's favor supported by substantial evidence. --
     Considering the new workers' compensation law and evidence
     that appellee, a nurse, had dislocated her shoulder while
     reaching under a patient's bed, had continued to work for no
     more than two hours and then went to the emergency room, where
     she was given medicine for pain and a sling, the appellate
     court concluded that the Commission's decision that appellee
     had proved that she had sustained a compensable injury was
     supported by substantial evidence. 

5.   Workers' compensation -- Shippers defense -- factors. -- By
     the rule of law adopted in Shippers Transp. of Georgia v.
     Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), a false
     representation on a employment application bars recovery under
     the Arkansas workers' compensation law when three factors are
     established: (1) the employee must have knowingly and wilfully
     made a false representation about her physical condition; (2)
     the employer must have relied upon the false representation,
     and this reliance must have been a substantial factor in the
     hiring; and (3) there must have been a causal connection
     between the false representation and the injury.

6.   Workers' compensation -- Shippers defense -- evidence did not
     prove that appellee knowingly and willingly made false
     representation about her physical condition. -- Where appellee
     testified, among other things, that her employment application
     did not specifically inquire about a shoulder injury, that at
     the time she filled it out she was not having any problems
     with her shoulder, that she did not believe that her shoulder
     was really a concern, and that it had never really hindered
     her life, the appellate court stated that it could not
     conclude that reasonable minds, with the same evidence before
     them, could not reach the Commission's conclusion that the
     evidence did not prove that the appellee knowingly and
     wilfully made a false representation about her physical
     condition on her employment application.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Jack, Lyon & Jones, P.A., by: John W. Fink, for appellant.
     The Whetstone Law Firm, by: Gary Davis, for appellee.

     Melvin Mayfield, Judge.  
     *ADVREPCA8*
                          DIVISION III



                                        CA 95-462


                                             MARCH 20, 1996


ST. VINCENT INFIRMARY              APPEAL FROM THE ARKANSAS
MEDICAL CENTER                     WORKERS' COMPENSATION         
                                   COMMISSION
               APPELLANT

VS.                                     
                                        
CONSTANCE BROWN                    AFFIRMED

               APPELLEE



                     Melvin Mayfield, Judge.



     This is an appeal from an order of the Workers' Compensation
Commission which affirmed and adopted the administrative law
judge's decision.  The law judge found that the appellee proved by
a preponderance of the evidence that she sustained a compensable
injury to her right shoulder on October 8, 1993, and that she was
temporarily totally disabled from October 9, 1993, to February 14,
1994.  The law judge also found that the appellant failed to prove
by a preponderance of the evidence that the appellee misrepresented
her physical condition when applying for employment.
     The appellee is a twenty-nine-year-old nurse.  On October 8,
1993, she went into a patient's room to lower the bed with the
electric button, but the bed did not go down.  She reached under
the bed, in a squatting position reaching forward with her right 


arm, to find a lever to lower the bed, and her right shoulder
dislocated.  The appellee testified that, because she is a medical
person and knew what to do, she put the shoulder back in place. 
The appellee worked about two more hours and then, because of the
pain, went to the emergency room.
     The appellee testified that in the past she had problems with
her right shoulder.  In August 1992, her shoulder dislocated while
she was skydiving, and she had to go to the emergency room to have
it put back in place.  Ten days later she was fine, and a week
later she was not having any real problems with her shoulder.  In
January 1993, the appellee's shoulder dislocated again when a man
with whom she was country dancing grabbed her and yanked her
shoulder out.  The appellee put it back in and was fine a few days
later.
     The appellee testified that she had no problems with her
shoulder from a week after the 1992 incident until January 1993;
that she never had any problems with her shoulder between April and
June 1993 in her duties as a housekeeper; and that she had no
problems between June 1993, when she began working at Doctors
Hospital and later at St. Vincent, up through October 8, 1993.  The
appellee testified further that in June 1993 her shoulder was not
a concern; it had never really hindered her life.  The appellee
testified that the incident at St. Vincent was much more painful
than the previous incidents and that, on a scale from one to ten,
the previous incidents rated a two or three, but the October
incident was an eight or nine.
     Appellant's first two arguments contend that the appellee's
injury is not compensable.  Appellant argues that the appellee's
injury is not compensable because it does not meet the definition
of a compensable injury as defined by Act 796 of 1993, codified as
Ark. Code Ann.  11-9-102 (Supp. 1995), which must be "strictly"
construed, Ark. Code Ann.  11-9-704(c)(3) (Supp. 1995), and
because the incident only made her pre-existing condition
symptomatic.  
     Appellant contends that the incident at work caused no
physical harm to the appellee's body; that the incident did not
change the underlying shoulder condition; and that it was merely
coincidental that the injury occurred at work.  Appellant says the
appellee had a pre-existing condition making her shoulder apt to
dislocate at any time.   
     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 Service, 265 Ark.
489, 579 S.W.2d 360 (1979).  The issue is not whether we might have
reached a different result or whether the evidence would have
supported a contrary finding; if reasonable minds could reach the
Commission's conclusion, we must affirm its decision.  Bearden
Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
     Arkansas Code Annotated  11-9-102 (Supp. 1995) provides:
     (5)(A) "Compensable injury" means:

          (i) An accidental injury causing internal or
     external physical harm to the body . . .  arising out of
     and in the course of employment and which requires
     medical services or results in disability or death.  An
     injury is "accidental" only if it is caused by a specific
     incident and is identifiable by time and place or
     occurrence[.]

     Here, there is evidence that the appellee dislocated her
shoulder on October 8, 1993, while reaching under a patient's bed. 
The appellee continued to work for no more than two hours and then
went to the emergency room where she was given medicine for pain
and a sling.  The appellee testified that the pain from the
dislocation was 8 or 9 on a scale of 10.  Although appellee had
other episodes in her past when her shoulder popped out, the
employer "takes the employee as he finds him," and employment
circumstances that aggravate pre-existing conditions are
compensable.  Public Employee Claims Division v. Tiner, 37 Ark.
App. 23, 822 S.W.2d 400 (1992).
     In discussing the compensability of the appellee's injury the
law judge stated:
     Had respondent shown that claimant was continuously
     symptomatic from January 1993 until October 1993 or that
     she received medical care on several occasions between
     these dates, I might be inclined to find that the October
     8, 1993, incident was a recurrence of a non-compensable,
     pre-existing condition stemming from the August 1992 or
     January 1993 injuries.  No such evidence was introduced,
     however.  The case therefore appears to be one in which
     a claimant with a pre-existing infirmity is injured as a
     result of employment activities that probably would not
     have caused injury to someone without the pre-existing
     disorder.  Such injuries remain compensable under
     Arkansas's new workers' compensation law.

     Based on the evidence and considering the new law, we think 
the Commission's decision is supported by substantial evidence.  
     Appellant also argues that the appellee is not entitled to
workers' compensation benefits because she misrepresented her
physical condition on her employment application, and her claim for
benefits is therefore barred by the rule of law adopted in Shippers
Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). 
The appellant argues that the appellee revealed her complete
medical history except her right shoulder problem and that Marilyn
Masingill, who made the decision to hire the appellee, testified
that had she been aware of appellee's shoulder problem, she would
not have hired her if accommodations could not have been made for
the appellee to meet her job requirements.
     In Shippers our supreme court held that a false representation
on a employment application bars recovery under our workers'
compensation law when three factors are established:  (1) the
employee must have knowingly and wilfully made a false
representation as to her physical condition; (2) the employer must
have relied upon the false representation, and this reliance must
have been a substantial factor in the hiring; and (3) there must
have been a causal connection between the false representation and
the injury.
     Here, the medical history form which was completed by the
appellee asked:     
     5.  Have you had any serious injuries, including broken
     bones, head injuries, back strain or recurring pain in
     back or neck?  If "Yes," explain, giving approximate date
     of onset and recurrences.     

     . . . .

     7.  Do you have any physical limitations in regard to
     movement of fingers, hands, arms, legs, back?  Have you
     ever worn a back brace?  Have you worn a knee brace?

In response to question 5, the appellee disclosed that she had 
ruptured her flexor tendon on the right hand and had sustained a
wrist injury, both of which required surgery.  Question 7 was
answered in the negative.
     The appellee testified that the document did not specifically
ask anything about a shoulder injury and that at the time she
filled out the application she was not having any problems with her
shoulder.  She testified that after the first incident in 1992 she
had no problems until January 1993 and that she experienced no
problems with her shoulder between April and October 1993.  She
said she did not believe that her shoulder was really a concern and
that it had never really hindered her life.  The appellee testified
further that, to her, a serious injury requires surgery,
hospitalization and/or extensive rehabilitation.  She said that
when she was interviewed by Marilyn Masingill her physical
condition was not the focus of any part of the verbal interview and
she was not asked about any shoulder problems.
     The administrative law judge, in an opinion which was affirmed
and adopted by the full Commission, held that the evidence did not
prove that the appellee knowingly and wilfully made a false
representation on the employment application with respect to her
physical condition.  
     We cannot conclude that reasonable minds, with the same
evidence before them, could not reach the Commission's conclusion.
     Affirmed.
     Stroud and Neal, JJ., agree.