Southern Hospitalities v. Britain

SOUTHERN HOSPITALITIES d/b/a Quality Inn, et
al. v. Lorie BRITAIN

CA 95-710                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
                 Opinion delivered July 3, 1996


1.   Workers' compensation -- standard of review. -- When reviewing
     decisions from the Workers' Compensation Commission, the
     appellate court views the evidence and all reasonable
     inferences deducible therefrom in the light most favorable to
     the Commission's findings and affirms if supported by
     substantial evidence; substantial evidence is that which a
     reasonable person might accept as adequate to support a
     conclusion; a decision by the Workers' Compensation Commission
     should not be reversed unless it is clear that fair-minded
     persons could not have reached the same conclusions if
     presented with the same facts.

2.   Workers' compensation -- compensable injury must be
     established by objective findings -- appellee failed to
     establish entitlement to compensation. -- Under the new
     workers' compensation act, a compensable injury must be
     established by medical evidence supported by "objective
     findings," which are findings "which cannot come under the
     voluntary control of the patient"; Ark. Code Ann.  11-9-
     102(5)(D) (Repl. 1996); Ark. Code Ann.  11-9-102(16)(A)(i)
     (Repl. 1996); the burden of proof of a compensable injury is
     on the employee; Ark. Code Ann.  11-9-102(5)(E) (Repl. 1996);
     where the only positive medical finding resulting from any of
     the examinations of appellee was that of lumbar tenderness,
     the Workers' Compensation Commission correctly concluded that
     the medical evidence was not supported by "objective findings"
     and that appellee failed to establish entitlement to
     compensation for a compensable injury.

3.   Workers' compensation -- when employer is responsible for
     medical expenses. -- An employer is generally only responsible
     for medical expenses when an employee is determined to have
     suffered a compensable injury.

4.   Estoppel -- elements of. -- The necessary elements of estoppel
     are: (1) the party to be estopped must know the facts; (2) he
     or she must intend that his or her conduct shall be acted upon
     or must act so that the party asserting the estoppel has a
     right to believe the other party so intended; (3) the party
     asserting the estoppel must be ignorant of the true facts; and
     (4) the party asserting the estoppel must rely on the other
     party's conduct to his or her injury.

5.   Workers' compensation -- Commission's decision that employer
     should bear medical expenses supported by substantial
     evidence. -- Where appellant employer directed appellee to
     visit a specific physician and represented that it was
     accepting her injury as compensable, thus prompting appellee
     to visit a physician and incur medical expenses, appellant
     employer was estopped from denying responsibility for the cost
     of treatment rendered by the physician notwithstanding the
     fact that appellee's back injury was ultimately deemed to be
     noncompensable; the appellate court held that the facts of
     this case constituted substantial evidence in support of the
     Commission's decision that the medical expenses should be
     borne by appellants.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed on direct appeal and on cross-appeal.
     Frye & Boyce, P.A., by: Mary A. Jones, for appellants.
     Lane, Muse, Arman & Pullen, by: Donald C. Pullen, for
appellee.

     John B. Robbins, Judge.*ADVREP*CA8*                 EN BANC









SOUTHERN HOSPITALITIES d/b/a
QUALITY INN, ET AL.
                     APPELLANT

V.


LORIE BRITAIN
                      APPELLEE



CA 95-710

                                                     JULY 3, 1996


APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION, [E310714]




AFFIRMED ON DIRECT APPEAL AND
ON CROSS-APPEAL




                     John B. Robbins, Judge.

     
     Lorie Britain brought a workers' compensation claim against
Southern Hospitalities, alleging that she sustained a work-related
back injury on July 3, 1993.  The Commission found that Ms. Britain
failed to prove a compensable injury and thus denied her claim for
temporary total disability benefits.  However, the Commission also
held that Southern Hospitalities was responsible for medical
treatment provided by Dr. Bruce Smith.  Southern Hospitalities now
appeals, arguing that the Commission erred in holding it liable for
any medical expenses.  On cross-appeal, Ms. Britain contends that
the Commission erred in concluding that she failed to prove a
compensable injury.  We affirm on appeal and on cross-appeal. 
Specifically, we hold that Ms. Britain cannot prevail on cross-
appeal because substantial evidence supports the Commission's
finding that she failed to establish a compensable injury under the
new requirements set forth by Act 796 of 1993.  Despite the fact
that Ms. Britain cannot sustain her claim for a compensable injury,
we agree with the Commission's ruling that Southern Hospitality is
responsible for those medical expenses which were incurred by
Ms. Britain at her employer's direction.
     When reviewing decisions from the Workers' Compensation
Commission, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the Commission's
findings and affirm if supported by substantial evidence.  Welch's
Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283
(1992).  Substantial evidence is that which a reasonable person
might accept as adequate to support a conclusion.  City of Fort
Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992).  A
decision by the Workers' Compensation Commission should not be
reversed unless it is clear that fair-minded persons could not have
reached the same conclusions if presented with the same facts. 
Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403
(1983).
     The facts of this case are as follows.  On July 3, 1993,
Ms. Britain was working in the laundry room for Southern
Hospitalities pulling towels from a washer when she felt a pain in
her lower back and right leg.  Ms. Britain reported her injury to
a co-worker, and later informed management about the injury.  She
continued working that day, but took some pain medication for
relief and did not do any more lifting.  After work, she was
examined by a doctor at a local hospital and was told that she
appeared to have a lumbar strain.  The doctor prescribed muscle
relaxers and pain pills.  Ms. Britain returned to the hospital two
or three days later when her pain persisted, and was referred to
Dr. James Arthur, a neurosurgeon.  However, a representative from
the employer's compensation insurer informed her that she was not
authorized to be treated by Dr. Arthur, and directed her to consult
Dr. Bruce Smith, an orthopedic surgeon.  
     Ms. Britain complied with the direction from the compensation
insurer to consult Dr. Smith, and he examined her on July 22, 1993. 
Dr. Smith diagnosed a mild back sprain, prescribed more pain
medication and muscle relaxers, and directed her to return to work
and contact him if she had any problems.  Ms. Britain attempted to
return to work but, after working for only a few hours, began
experiencing additional pain in her lower back and legs.  She
telephoned Dr. Smith's office, reported her symptoms, and was told
to remain off work until an MRI study of her lumbar spine could be
performed.  That study was performed on August 11, 1993, and
indicated evidence of a prior surgery.  However, no recurrent disc
herniation was detected, and no nerve root impingement was found. 
Based upon that study, Dr. Smith released Ms. Britain to return to
work effective August 12, 1993, without restrictions, and released
her from care.  On September 8, 1993, Dr. Smith again released Ms.
Britain to work, but this time he directed that she restrict her
lifting to no more than thirty pounds.  Ms. Britain returned to
work following the August 11, 1993, study and examination and
continued to work through September 16, 1993, when she was fired.
     It is undisputed that Southern Hospitalities accepted
Ms. Britain's July 3, 1993, back sprain as compensable, and that it
paid for the medical treatment that Ms. Britain received from the
hospital and paid temporary total disability benefits through July
21, 1993.  The parties stipulated that an incident occurred on July
3, 1993, which Ms. Britain immediately reported as a work-related
injury.  The Commission found that the appellants initially
accepted responsibility for the claim.  Furthermore, it is
undisputed that Southern Hospitalities and its insurance carrier
refused to authorize medical treatment by Dr. Arthur, but instead
directed Ms. Britain to obtain treatment from Dr. Smith. 
Nonetheless, Southern Hospitalities denied liability for any of
Ms. Britain's medical care, including the cost of Dr. Smith's
services and the MRI study that she received under his care, as
well as her claim for temporary total disability benefits
associated with the time that she was off work pursuant to
Dr. Smith's direction.  Southern Hospitalities denied Ms. Britain's
claim by contending that her injury was not supported by objective
findings so that it was not a "compensable injury" within the
meaning of various provisions of Ark. Code Ann.  11-9-102 (Repl.
1996), as amended by Section 2 of Act 796 of 1993.
     As the Commission noted in its opinion, the only positive
medical finding resulting from any of the examinations of
Ms. Britain was that of lumbar tenderness.  Following an
examination which revealed a good range of motion and a negative
straight leg raising maneuver, Dr. Smith opined that Ms. Britain
sustained a "mild sprain."  An MRI was also performed, but the
results were negative.  Under the new act, a compensable injury
must be established by medical evidence supported by "objective
findings," which are findings "which cannot come under the
voluntary control of the patient."  Ark. Code Ann.  11-9-102(5)(D)
(Repl. 1996); Ark. Code Ann.  11-9-102(16)(A)(i) (Repl. 1996). 
The burden of proof of a compensable injury is on the employee. 
Ark. Code Ann.  11-9-102(5)(E) (Repl. 1996).  In the instant case,
the Commission correctly concluded that the medical evidence was
not supported by "objective findings," and that Ms. Britain thus
failed to establish entitlement to compensation for a compensable
injury.
     After deciding to deny Ms. Britain's claim for compensability,
the Commission nevertheless awarded benefits against the appellants
for medical expenses incurred under the treatment of Dr. Smith.  In
doing so, the Commission explained:
          [W]e note that the respondents are seeking to avoid
     liability for medical treatment which was provided to
     the claimant at their direction during the time that
     they accepted the compensability of the claim.  In
     this regard, the respondents initially accepted the
     compensability of this claim, and they accepted
     responsibility for the medical services provided to
     the claimant by and at the direction of Dr. Smith. 
     Consequently, we find that they cannot now deny liability
     for those services, including liability for the expenses
     for the MRI.
     An employer is generally only responsible for medical expenses
when an employee is determined to have suffered a compensable
injury.  See Ark. Code Ann.  11-9-102(5)(F)(i) (Repl. 1996). 
However, in this case the employer directed Ms. Britain to see
Dr. Smith and led Ms. Britain to reasonably believe that such
treatment would be covered by workers' compensation.  Although the
Commission did not specifically state that it was invoking the
equitable doctrine of estoppel, it is implicit in its opinion that
it did so.  In Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194
(1985), we set out the elements of estoppel as follows:
     1) The party to be estopped must know the facts; 2) he or
     she must intend that his or her conduct shall be acted
     upon or must act so that the party asserting the estoppel
     has a right to believe the other party so intended; 3)
     the party asserting the estoppel must be ignorant of the
     true facts; and 4) the party asserting the estoppel must
     rely on the other party's conduct to his or her injury.
The facts of this case constitute substantial evidence in support
of the Commission's decision.  The employer is estopped from
denying responsibility for the cost of treatment rendered by
Dr. Smith notwithstanding the fact that Ms. Britain's back injury
was ultimately deemed to be noncompensable.  Southern Hospitalities
directed Ms. Britain to visit a specific physician and represented
that it was accepting her injury as compensable, thus prompting
Britain to visit Dr. Smith and incur medical expenses.  The
Commission did not err in concluding that these expenses should be
borne by the appellants.
     Affirmed on direct appeal.
     Rogers, J., agrees.
     Mayfield and Griffen, JJ., concur.
     Jennings, C.J., and Cooper, J., dissent.
     Affirmed on cross-appeal.
     Rogers, J., agrees.
     Jennings, C.J., and Cooper J., concur.
     Mayfield and Griffen, JJ., dissent.*ADVREP*CA8-A*

                    ARKANSAS COURT OF APPEALS
                             EN BANC
                 Opinion delivered July 3, 1996
                          No. CA 95-710


SOUTHERN HOSPITALITIES d/b/a
QUALITY INN, et al.,
          Appellants                    APPEAL FROM ARKANSAS
                                        WORKERS' COMPENSATION
                                        COMMISSION

v.

LORIE BRITAIN,                          CONCURRING IN PART;
          Appellee                      DISSENTING IN PART



                 John E. Jennings, Chief Judge.


     I concur in the court's affirmance on cross-appeal.  I agree
with Judge Robbins that the Commission's finding that Ms. Britain's
injury is not "compensable" under the new act is supported by
substantial evidence.  
     I cannot agree that the case can be affirmed on direct appeal,
however.  There are several problems with affirming on an estoppel
theory.  First, the Commission did not make a specific finding that
the employer was estopped.  Estoppel is ordinarily a question of
fact.  See Dickson v. Delhi Seed Co., 26 Ark. App. 83, 760 S.W.2d 382 (1988).  Second, Ark. Code Ann.  11-9-508(a) requires the
employer to provide medical services.  I do not understand how the
employer can be estopped by doing something the statute requires.
     Finally, Ark. Code Ann.  11-9-510 expressly provides that
there is no liability here.  "The employer shall not be liable for
any of the payments provided for in  11-9-508--11-9-516 in the
case of a contest of liability where the Commission shall decide
that the injury does not come within the provisions of this
chapter."  My conclusion is that, under the new act, we have no
choice but to reverse on direct appeal, and for that reason I
respectfully dissent.  I concur in the court's affirmance on cross-
appeal.
     Cooper, J., joins in this concurrence and dissent.*ADVREP*CA8-B*               EN BANC





                                   CA95-710

                                                July 3, 1996


SOUTHERN HOSPITALITIES d/b/a       AN APPEAL FROM WORKERS' QUALITY
INN, ET AL.                        COMPENSATION COMMISSION
               APPELLANTS

V.

LORIE BRITAIN                             
               APPELLEE            CONCURRING OPINION AS TO
                                   DIRECT APPEAL; DISSENTING
                                   OPINION ON CROSS-APPEAL





                   Wendell L. Griffen, Judge.

     Is a low back strain that a worker suffers while performing
her job and which her employer acknowledges as having occurred
within the scope of and arising out of her employment a
þcompensable injuryþ within the meaning of the changes to the
Arkansas Workersþ Compensation Law enacted as Act 796 of 1993? 
This is the question presented by this case of first impression
under the 1993 changes.  Although one might first think that this
question is easily answered given the history of workersþ
compensation in Arkansas, this case shows that the definition of
þcompensable injuryþ under the new act may pose somewhat novel and
nagging difficulties to employers, injured workers, the Workersþ
Compensation Commission, and this court.
     Southern Hospitalities d/b/a Quality Inn [hereinafter
"Southern Hospitalities"] and Union Standard Insurance Company (its
workersþ compensation insurer) have appealed the March 18, 1995,
decision by the Workersþ Compensation Commission holding that Lorie
Britain was entitled to medical benefits under the Workersþ
Compensation Law arising from a back injury that Britain suffered
on July 3, 1993, even though the Commission found her injury non-
compensable.  Britain has cross-appealed from the Commissionþs
decision  denying her claim for temporary total disability benefits
associated with that injury based upon its determination of non-
compensability.  We conclude that the Commissionþs decision finding
Southern Hospitalities liable for the cost of the medical services
and treatment that Britain received is supported by substantial
evidence.  Therefore, we would affirm on the appeal.  However, that
part of the Commissionþs decision finding that Britain failed to
prove that she sustained a compensable injury is not supported by
substantial evidence.  Thus, we would reverse the decision denying
Britainþs claim for temporary total disability benefits, and we
would remand the case to the Commission so that an order awarding
those benefits can be entered.
      The facts are essentially undisputed.  On July 3, 1993,
Britain was working in the laundry room for Southern Hospitalities
pulling towels from a washer when she felt a sharp pain in her
lower back and down her right leg.  She reported her injury to a
co-worker, and she informed management about the injury.  She
continued working that day, but took some pain medication for
relief and did not do any more lifting that day.  After work she
went to a local hospital, was examined by a doctor there and told
that she appeared to have a lumbar strain, and was prescribed
muscle relaxers and pain pills.  Britain returned to the hospital
two or three days later when her pain persisted, and was referred
to a local neurosurgeon, Dr. James Arthur.  However, a
representative from the employerþs compensation insurer informed
her that she was not authorized to be treated by Dr. Arthur, and
directed her to consult Dr. Bruce Smith, an orthopedic surgeon,
instead.  Britain had formerly been a patient under Dr. Smithþs
care for another back injury that occurred when she worked for a
different employer.  
     Britain complied with the direction from the compensation
insurer to consult Dr. Smith, who examined her on July 22, 1993. 
He diagnosed a mild back sprain, prescribed more pain medication
and muscle relaxers, and directed her to return to work and contact
him if she had any problems.  Britain attempted to return to work
but began experiencing additional pain in her lower back and legs
after working for less than three hours.  She telephoned Dr.
Smithþs office, reported her symptoms, and was told to remain off
work until a magnetic resonance imaging (MRI) study of her lumbar
spine could be performed.  That study, performed on August 11,
1993, produced findings of desiccation of Britainþs intervertebral
disc at L5-S1, slight bulging of the disc on the right at that
level, and post-surgical scarring on the right at that level.  No
recurrent disc herniation was detected, and no nerve root
impingement was found in that study.  Based upon that study, Dr.
Smith released Britain to return to work effective August 12, 1993,
without restrictions, and released her from care.  On September 8,
1993, Dr. Smith again released Britain to work, but this time he
directed that she restrict her lifting to no more than thirty
pounds.  Britain returned to work following the August 11, 1993,
study and examination and worked through September 16, 1993, when
she was fired.  She brought a claim for workers compensation
benefits related to the medical treatment that she received,
including the cost of the MRI study, as well as for temporary total
disability benefits related to the time that she was off work as
directed by Dr. Smith from July 22 to August 12, 1993.  She
subsequently obtained work from a different employer. 
     It is undisputed that Southern Hospitalities accepted
Britainþs July 3, 1993, back sprain as compensable, and that it
paid, through its insurance carrier, for the medical treatment that
Britain received from the hospital and paid temporary total
disability benefits through July 21, 1993.  The parties stipulated
that an incident occurred on July 3, 1993, which Britain
immediately reported as a work-related injury, and that the
incident arose out of and occurred in the course of her employment. 
The Commission found that the appellants initially accepted
responsibility for the claim.  Furthermore, it is undisputed that
Southern Hospitalities and its insurance carrier refused to
authorize medical treatment by Dr. Arthur, but instead directed
Britain to obtain treatment from Dr. Smith.  Nevertheless, Southern
Hospitalities denied liability under the Workersþ Compensation Law
concerning the cost of all of Britainþs medical care, including the
cost of Dr. Smithþs services and the MRI study that she received
under his care, as well as her claim for temporary total disability
benefits associated with the time that she was off work pursuant to
Dr. Smithþs direction.  Southern Hospitalities denied Britainþs
claim by contending that her injury was not supported by objective
findings so that it was not a þcompensable injuryþ within the
meaning of various provisions of Ark. Code Ann.  11-9-102 (Repl.
1996) as amended by Section 2 of Act 796 of 1993.
     An administrative law judge found that Britain did sustain a
þcompensable injury,þ and awarded her temporary total disability
benefits for the period in question plus her medical expenses and
a controverted attorneyþs fee.  Southern Hospitalities appealed
that determination to the Commission, which affirmed the award of
medical benefits because Southern Hospitalities initially accepted
the claim as compensable and accepted responsibility for the
medical services provided to Britain by Dr. Smith at its direction. 
However, the Commission reversed the award of temporary total
disability benefits from July 22 to August 12, 1993, and the
finding that Britain sustained a compensable injury, holding that
she failed to establish a compensable injury with medical evidence
supported by objective findings as defined by Ark. Code Ann.  11-
9-102(16)(Repl. 1996).  Southern Hospitalities has appealed from
the decision holding it liable for all medical benefits, including
the MRI expense and the cost of Dr. Smithþs care.  Britain has
cross-appealed from the decision holding that she failed to prove
that she sustained a compensable injury.
       Our task on appellate review of decisions by the Workersþ
Compensation Commission is to review the evidence and all
reasonable inferences from it in the light most favorable to the
Commissionþs findings, and we must uphold the Commissionþs findings
if there is any substantial evidence to support them, even if the
preponderance of the evidence would indicate a different result. 
Tahutini v. Tastybird Foods, 18 Ark. App. 82, 711 S.W.2d 173
(1986).  In order to reverse a decision of the Commission, we must
be convinced that fair-minded persons, with the same facts before
them, could not have reached the conclusion arrived at by the
Commission.  Franklin Collier Farms v. Chapple, 18 Ark. App. 200,
712 S.W.2d 334 (1986).  We are required to give findings of fact by
the Commission the same force and effect as a juryþs verdict when
they are supported by substantial evidence.  General Indus. v.
Gipson, 22 Ark. App. 219, 738 S.W.2d 104 (1987). 
     Thus, as to the appeal, our concern is whether the
Commissionþs decision holding Southern Hospitalities liable for
Britainþs medical expenses upon a finding it accepted the
compensability for her claim during the time that the services were
provided is supported by substantial evidence.  As to the cross-
appeal, we review to determine whether the Commissionþs finding
that Britain failed to prove that she suffered a compensable injury
as that term is defined by the Workersþ Compensation Law, as
amended by Act 796 of 1993, is supported by substantial evidence. 

     Under prior law, Arkansas defined an injury for purposes of
workersþ compensation benefits to mean an accidental injury arising
out of and in the course of employment.  Ark. Code Ann.  11-9-
102(4) (1987).  However, the Arkansas General Assembly rewrote the
definition of injury when it enacted Act 796 in 1993, and specified
the meaning of þcompensable injury,þ at Ark. Code Ann.  11-9-
102(5)(A) (Repl. 1996).  For our purposes in this appeal, the
operative statutory definition is found at  11-9-102(5)(A)(i),
which reads, in pertinent part, as follows:
     þCompensable injuryþ 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
     þaccidentalþ only if it is caused by a
     specific incident and is identifiable by time
     and place of occurrence.

That definition must also be understood in light of  11-9-
102(5)(D) (Repl. 1996) which provides that a compensable injury
must be established by medical evidence, supported by þobjective
findingsþ as defined in  11-9-102(16)(A), which reads as follows:
     (i)  þObjective findingsþ are those findings which
cannot come under the voluntary control of the patient.

     (ii) When determining physical or anatomical
impairment, neither a physician, any other medical
provider, an administrative law judge, the Workersþ
Compensation Commission, nor the courts may consider
complaints of pain; for the purpose of making physical or
anatomical impairment ratings to the spine, straight-leg-
raising tests or range-of-motion tests shall not be
considered objective findings.
     
     Because we would hold that Britain suffered a compensable
injury within the meaning of the foregoing statutory definitions,
we have no difficulty concluding--indeed, it logically follows--
that there is substantial evidence to support the Commissionþs
decision that Southern Hospitalities is liable for the cost of the
medical services and treatment that Britain obtained.  Britainþs
claim is governed by  11-9-102(5)(A)(i) which expressly defines
compensable injury to mean 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.  There is no argument about whether
Britainþs injury was accidental because the parties agree that it
arose from a specific incident and is identifiable by time and
place of occurrence.  There is no dispute that the July 3, 1993,
incident involving the pulling of towels from a washer was the
precipitating incident for Britainþs injury, although Southern
Hospitalities argued before the Commission that her symptoms
following that incident were merely a recurrence of her previous
back problems from an injury sustained under different employment. 
As already indicated, Britainþs condition required medical services
on July 3, 1993, and it resulted in her inability to work.  Her
condition required medical services thereafter, as proven by the
fact that she returned to the hospital for additional examination,
was prescribed medication for pain relief and muscle relaxers, and
had been referred by the hospital to Dr. Arthur, a neurosurgeon. 
The fact that Southern Hospitalities, through its workersþ
compensation insurer, directed Britain to be examined by Dr. Bruce
Smith rather than Dr. Arthur is additional proof that her condition
required medical services.  Dr. Smith diagnosed her condition as a
lumbar strain, prescribed medication, and eventually directed her
to refrain from working because of her increased symptoms of lower
back and right leg pain.  These facts are established by Britainþs
testimony.  They are also proven by the medical records related to
Britainþs treatment on July 3 and 7, 1993, as well as Dr. Smithþs
clinic notes and other records beginning with his treatment on July
22, 1993, and continuing through his return to work slip dated
September 8, 1993.  
     There is no medical evidence in the record that questions the
fact that Britain sustained internal physical harm to her body (in
the form of a lumbar strain diagnosed by Dr. Smith and by the
doctors that treated Britain before he did).  Similarly, there is
no evidence questioning whether her lumbar strain required medical
services.  The fact that she was off work because of the lumbar
strain is also undisputed.  Based upon these undisputed facts, we
are driven to conclude that reasonable minds could not have decided
that Britain did not suffer a compensable injury.
     Southern Hospitalities contends that Britain did not suffer a
compensable injury because the medical evidence is not supported by
þobjective findings.þ  Operating from that reasoning, the argument
proceeds that because Britain did not suffer a compensable injury,
the employer cannot be held liable for medical treatment and
services under the Workersþ Compensation Law.  Southern
Hospitalities disputes the Commissionþs decision holding it liable
for the cost of Britainþs medical treatment, including the
treatment and services she received from Dr. Smith and at his
direction, by arguing that it merely authorized Britain to obtain
that treatment, but that it did not accept responsibility for
paying for it.  None of this reasoning is persuasive.
     There is no proof before us that Britainþs lumbar strain--the
medical condition diagnosed by every doctor that examined her--
comes under her voluntary control.  The medical evidence shows that
she initially complained of pain along the right side of her back
running to her right buttock and leg, and that she described the
pain as a pulling type.  Although she had good range of motion in
the lumbar spine, negative straight leg raising, and normal
neurological findings when Dr. Smith examined her on July 22, 1993,
Dr. Smith unequivocally stated that she had suffered a mild sprain
for which he recommended conservative treatment.   If the record
contained proof that the medical findings associated with Britainþs
back sprain were under her voluntary control, we would have no
difficulty affirming the Commissionþs decision that she had not
suffered a compensable injury based upon the substantial evidence
standard of review.  But we do not read the governing provisions of
 11-9-102 on this issue as constituting a wholesale exclusion of
back sprains. 
      Objective findings are those that cannot come within the
voluntary control of the patient.  Ark. Code Ann.  11-9-102(16)
(Repl. 1996).  A patient with a strained back can voluntarily
control her responses to pain associated with the sprain, to be
sure, but that is manifestly different from being able to
voluntarily control the pain itself and the stretching of the
muscles affected.  It is important to note that Act 796 only
provides that pain may not be considered "when determining physical
or anatomical impairment."  Ark. Code Ann.  11-9-102(16)(A)(ii)
(Repl. 1996).  The inquiry to determine impairment is distinct from
the more fundamental inquiry to determine compensability in the
first instance.
     The General Assembly has never eliminated pain as a
consideration when the issue is compensability, either by enacting
Act 796 or otherwise.  Act 796 clearly eliminated pain as a factor
for determining impairment as shown at Ark. Code Ann  11-9-
102(16)(A)(ii).  Likewise, at  11-9-521(h)(1)(B) and 11-9-
522(g)(1)(B) (Repl. 1996), pain has been eliminated as a basis for
an impairment rating guide that the Commission was required to
adopt pursuant to Act 796.  However, the General Assembly has not
eliminated pain as a factor for determining compensability in
strains.  The clearest proof that it has not is found at Ark. Code
Ann.  11-9-523 (Repl. 1996), which provides for the compensability
of hernia injuries.  That statute and its predecessors include the
existence of pain as a valid factor for determining compensability. 
Indeed, the statute requires affirmative proof that the claimant
suffered severe pain in the hernial region, "that the pain caused
the employee to cease work immediately," and that "the physical
distress following the occurrence of the hernia was such as to
require the attendance of a licensed physician within seventy-two
(72) hours after the occurrence."  Section 11-9-521(a).  Proof of
pain is required in "all cases of claims for hernia" which also
requires proof that hernia occurred immediately following the
result of sudden effort, severe strain, or the application of force
directly to the abdominal wall.  Id.
     The Workers' Compensation Law has included the foregoing proof
requirement regarding pain for the abdominal strain condition known
as hernia since 1948, when Arkansas adopted its workers'
compensation scheme.  The General Assembly has always known that
pain is a required element of proof for hernia claims, and that
other sprain or strain injuries--including back strains such as
suffered by Britain in the present case--are typically
characterized by the presence of pain as a diagnostic finding and
have repeatedly been upheld as compensable.  If the General
Assembly intended to change more than forty years of Arkansas law
and eliminate pain as a permissible factor for determining
compensability in workers' compensation cases involving strains, it
clearly could have done so by using plain language to that effect
in Act 796.  Instead, the General Assembly did nothing to legislate
strains and sprains out of our Workers' Compensation Law.  It left
the hernia statute unchanged regarding the requirement that pain be
shown to establish compensability.  It expressly declared pain to
be an impermissible factor only for determining impairment.  At 
Ark. Code Ann.  11-9-704(c)(3), the General Assembly directed that
administrative law judges, the Commission, "and any (sic) reviewing
courts shall construe the provisions of this chapter strictly." 
(emphasis added).  Moreover, at  11-9-1001 the General Assembly
served notice to the Commission and the courts that any changes to
the Workers' Compensation Law were its exclusive business, by the
following unmistakable language:  
When, and if, the workers' compensation statutes of this
state need to be changed, the General Assembly
acknowledges its responsibility to do so.  It is the
specific intent of the Seventy-Ninth General Assembly to
repeal, annul, and hold for naught all prior opinions or
decisions of any administrative law judge, the Workers'
Compensation Commission, or courts of this state contrary
to or in conflict with any provision in this act.  In the
future, if such things as the . . . extent to which any
physical condition, injury, or disease should be excluded
from or added to coverage by the law, or the scope of the
workers' compensation statutes need to be liberalized,
broadened, or narrowed, those things shall be addressed
by the General Assembly and should not be done by
administrative law judges, the Workers' Compensation
Commission, or the courts.

Therefore, to conclude that Britain's strain was somehow unproven
requires that one dismiss the opinion of every doctor that treated
her injury. It further requires us to judicially legislate pain out
of the permitted factors that may be considered when compensability
determinations are made and legislate back strains out of the
medical conditions covered by the Workers' Compensation Law,
despite the fact that the General Assembly has flatly declared that
it alone will decide if "any physical condition, injury, or disease
should be excluded from" coverage under the Workers' Compensation
Law. 
     We also find the employerþs argument concerning its liability
for Britainþs medical treatments and their cost to be fundamentally
flawed.  Ark. Code Ann.  11-9-508 (a) (1996) requires that an
employer promptly provide for an injured employee such medical,
surgical, hospital, chiropractic, and other medical treatment as
may be reasonably necessary in connection with an injury received
by the employee.    Neither that statute nor anything else in  the
Workersþ Compensation Law obligates an employer to provide and pay
for treatment for conditions that are not ultimately found to be
compensable.  Workersþ compensation is a scheme of social
legislation aimed at protecting employees from the disabling
consequences and financial costs of injuries that are work-related. 
The Seventy-Ninth General Assembly made this point plain at Section
35 of Act 796, codified as Ark. Code Ann.  11-9-1001 (Repl. 1996),
which includes the following pertinent observation:
     The Seventy-Ninth General Assembly realizes that the
Arkansas workersþ compensation statutes must be revised
and amended from time to time.  Unfortunately, many of
the changes made by this act were necessary because
administrative law judges, the Workersþ Compensation
Commission, and the Arkansas courts have continually
broadened the scope and eroded the purpose of the
workersþ compensation statutes of this state.  The
Seventy-Ninth General Assembly intends to restate that
the major and controlling purpose of workersþ
compensation is to pay timely temporary and permanent
disability benefits to all legitimately injured workers
that suffer an injury or disease arising out of and in
the course of their employment, to pay reasonable and
necessary medical expenses resulting therefrom, and then
to return the worker to the work force . . . . (emphasis
added).

     In view of this plain expression of legislative intent that
workersþ compensation benefits are intended to pay the cost of
reasonable and necessary medical expenses that result from injuries
and diseases arising out of and in the course of the employment, we
cannot read the statutory duty imposed by  11-9-508(a) to mean
that the obligation to provide prompt and reasonably necessary
services and treatment for a compensable injury does not include
liability for the cost of the services and treatment.  If workersþ
compensation benefits are intended to provide payment for injuries
arising out of and in the course of the employment, including the
cost of reasonable and necessary medical expenses associated with
those injuries, then the statutory duty imposed by that section of
the workersþ compensation law simply means that an employer has a
duty to provide and is liable to pay the cost of reasonable and
necessary medical expenses associated with work-related injuries. 
The appellants here have made no claim that the medical expenses
were not reasonable and necessary.  The idea that the General
Assembly intended by the workersþ compensation scheme to impose the
cost of medical care and treatment upon an employer for an injury
that does not arise out of and occur in the course of the
employment where the employer has disputed the injury is beyond
rational belief, in addition to being contrary to the explicit
declaration of legislative intent that accompanied Act 796.
     Any lingering doubt about this issue is resolved by reference
to Ark. Code Ann.  11-9-510 (Repl. 1996) which states that the
employer "shall not be liable for any of the payments provided for
in  11-9-508--11-9-516 in the case of a contest of liability
where the Workersþ Compensation Commission shall decide that the
injury does not come within the provisions of the Workers
Compensation Law." (emphasis added).  Likewise, it is illogical to
conclude that a worker who suffers a compensable injury, as we
believe Britain did, should be forced to pay the cost of her
treatment when her employer knows that the injury was work-related
and has directed her to obtain the very treatment for which it
refuses to pay.
      Accordingly, we find no support for the argument advanced by
Southern Hospitalities that authorizing medical services for a
compensable injury does not make an employer liable for their
costs.  If Britain did not sustain a compensable injury then
Southern Hospitalities was not liable for the cost of her
treatment.  Ark. Code Ann.  11-9-510. (Repl. 1996).  However,
where Southern Hospitalities authorized the treatment for an injury
it initially considered compensable, it also made itself liable for
its cost.  An employer may authorize treatment and be liable for
its cost even when it has not determined an injury to be
compensable, as when it is trying to investigate whether a
condition may have originated from or been caused by a workplace
hazard or condition.  As the prevailing opinion indicates, an
employer may be estopped to deny liability when it has engaged in
a course of conduct that is inconsistent with an attempt to avoid
or deny liability for the cost of medical care and treatment.  We
believe, however, that compensability here has been conclusively
established so that the employer should be held liable for all
reasonable and necessary medical expenses without resort to the
estoppel principle embraced by the prevailing opinion. 
     It necessarily follows from our conclusion that Britain
suffered a compensable injury that the Commissionþs decision
denying her claim for temporary total disability benefits should be
reversed because it is not supported by substantial evidence.  As
we observed in our analysis of the medical benefits issue, all of
the evidence conclusively demonstrates that Britainþs back strain
occurred from her effort of pulling towels from a washer on her job
on July 3, 1993.  The evidence shows that she was unable to work
from July 22 to August 12, 1993, because of the back strain.  There
is no evidence showing that her incapacity from working occurred
due to any other reason.
     We are unable to conclude that fair-minded persons faced with
this conclusive body of proof could decide that Britainþs
incapacity to work from July 22 to August 12, 1993, was not caused
by her July 3, 1993, back strain that arose out of and occurred in
the course of her employment by Southern Hospitalities.  Therefore,
we would reverse the Commissionþs decision denying her claim for
temporary total disability benefits for that period of time, and
would remand the case to the Commission to award the benefits
appellee is rightfully due. 
     We recognize that the changes to the Workersþ Compensation Law
that were enacted as Act 796 of 1993 were intended to narrow what
some observers considered overly broad interpretations of the law,
that the law is to be construed strictly, and that Ark. Code Ann.
 11-9-1001 specifies that any alteration of the scope of the law
shall be addressed by the General Assembly rather than the courts
or the Commission.  Our decision today is fully consistent with
that legislative intent.  Britainþs back strain is a compensable
injury because there is clear and conclusive proof that it arose
out of and occurred in the course of her employment, required
medical services, and resulted in disability.  Our conclusion on
that point is based upon the undisputed medical proof of her
condition, and the total absence of any proof that her medical
findings came under her voluntary control.
     According to the 1993 Survey of Nonfatal Occupational Injuries
and Illnesses published by the Arkansas Department of Labor, sprain
and strain was, by far, the leading injury and illness category in
every major industry division in Arkansas.  The survey also
reported that the back and other portions of the trunk were the
major parts of the body affected, with sprains accounting for
nearly a fourth of the survey case total.  Sprains and strains may
rely, perhaps more than other maladies, on a claimant's assertion
of pain, but we refuse to judicially eliminate pain as a
consideration for determining compensability when the Arkansas
General Assembly has not done so.  In fact, the General Assembly
has bluntly declared that the courts shall not exclude any physical
condition from coverage (i.e. compensability) under the Workers'
Compensation Law because it has reserved the task of narrowing or
broadening coverage to itself.  See Ark. Code Ann.  11-9-1001
(Repl. 1996).  We find no justification for concluding that the
General Assembly intended to exclude back strains from being
covered by the Workersþ Compensation Law.  
     If the proof presented for sprain and strain injuries is
conflicting, the substantial evidence standard of review will
result in the Commissionþs decisions in those cases being affirmed. 
Where, as here, the proof concerning a sprain or strain is
undisputed and unequivocal, we are convinced that a compensable
injury has been established entitling the affected worker to the
benefits allowed by the Workersþ Compensation Law.
     We concur in the result affirming the award of the medical
benefits, and dissent from the decision holding appellee's injury
noncompensable. 
     I am authorized to state that Mayfield, J., agrees with this
opinion.