Farmland Ins. Co. v. Dubois

*ADVREP*CA7*                          DIVISION III




                                       CA 95-911
                                        
                                                     June 19, 1996     



FARMLAND INSURANCE COMPANY           AN APPEAL FROM THE ARKANSAS     
                 APPELLANT           WORKERS' COMPENSATION COMMISSION
                                     NO. E402262                      
V.
                                                                
TRACY DUBOIS                                        
                 APPELLEE
                                     AFFIRMED






                         Judith Rogers, Judge.


     This is an appeal from the Workers' Compensation Commission's
order affirming and adopting the administrative law judge's
decision.  The ALJ found that appellee sustained a compensable back
injury on March 12, 1994, and awarded medical benefits and
temporary total disability benefits from March 23, 1994, until a
date yet to be determined.  On appeal, appellant argues that there
is no substantial evidence to support the Commission's decision. 
We disagree and affirm.
     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.  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.  St. Vincent
Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550
(1996).
     Appellee testified that while working on Saturday, March 12,
1994, she replaced a canister of coke syrup into a fountain machine
and felt a burning pain down her right side to her foot.  She said
that she informed her co-workers Penny Howie and Janet George of
the event.  The record reveals that appellee was prescribed
medication and was off work until the following Thursday.  Appellee
testified that while walking to work on March 22, 1994, she again
felt burning pain in her right leg.  She said that she called Bob
Hardin, the regional manager, before going to the emergency room.
     Ms. George testified that appellee called her on March 12,
1994, and reported that she had hurt her back.
     The Commission found appellee's testimony credible and
concluded that the incident on March 12, 1994, aggravated
appellee's previous back condition.  The Commission specifically
found that appellee proved by a preponderance of the evidence that
her injury was caused by a specific incident that was identifiable
by time and place of occurrence.
     On appeal, appellant contends that, because appellant had a
preexisting back condition which was aggravated by an incident at
work, she must prove that the incident at work was the major cause
of her recent disability.  We disagree.
     Arkansas Code Annotated  11-9-102(5)(A),(E), and (F) (Repl.
1996) provide in part:
     (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 "acciden-
          tal" only if it is caused by a specific inci-
          dent and is identifiable by time and place of
          occurrence;

          (ii)  An injury causing internal or external
          physical harm to the body and arising out of
          and in the course of employment if it is not
          caused by a specific incident or is not iden-
          tifiable by time and place of occurrence, if
          the injury is:

          (a) ...

          (b)  A back injury which is not caused by a
          specific incident or which is not identifiable
          by time and place of occurrence;

          ...


     (E)  Burden of Proof.  The burden of proof of a compensa-
     ble injury shall be on the employee and shall be as
     follows:

          (i)  For injuries falling within the defini-
          tion of compensable injury under subdivision
          (5)(A)(i) of this section, the burden of proof
          shall be a preponderance of the evidence;

          (ii)  For injuries falling within the defini-
          tion of compensable injury under subdivision
          (5)(A)(ii) of this section, the burden of
          proof shall be by a preponderance of the
          evidence, and the resultant condition is
          compensable only if the alleged compensable
          injury is the major cause of the disability or
          need for treatment.

     (F)  Benefits.

          (i)  When an employee is determined to have a
          compensable injury, the employee is entitled
          to medical and temporary disability as provid-
          ed by this chapter.

          (ii)(a)  Permanent benefits shall be awarded
          only upon a determination that the compensable
          injury was the major cause of the disability
          or impairment.

          (b)  If any compensable injury combines with a
          preexisting disease or condition or the natu-
          ral process of aging to cause or prolong
          disability or a need for treatment, permanent
          benefits shall be payable for the resultant
          condition only if the compensable injury is
          the major cause of the permanent disability or
          need for treatment.

"Major cause" means more than fifty percent (50%) of the cause. 
Ark. Code Ann.  11-9-102(14)(A) (Repl. 1996).
     In this instance, the Commission found evidence that appel-
lant's injury was caused by a specific incident.  Therefore, there
was no requirement for it to be shown that the compensable injury
was the major cause of her disability.  Under Ark. Code Ann.  11-
9-102(5)(E)(ii), that becomes a requirement only when the injury
was not occasioned by a specific incident.  Consequently, we find
no merit in appellant's argument.
     Also, Ark. Code Ann.  11-9-102(5)(F)(i) & (ii) provide that
when an employee is determined to have a compensable injury, the
employee is entitled to medical and temporary disability as
provided by this chapter.  It goes on to specifically provide that
if any compensable injury combines with a preexisting condition,
permanent benefits shall be payable only if the compensable injury
is the major cause of the permanent disability or need for
treatment.  Therefore, when a claimant who has sustained a
compensable injury is seeking permanent disability benefits there
is a requirement to prove that the compensable injury is the major
cause of the permanent disability.  In this case, appellee was only
seeking medical benefits and temporary total disability.  There-
fore, appellant's argument is misplaced.
     Appellant further contends that the Commission erred in
finding that appellant's injury was caused by a specific incident
when there is an aggravation of a preexisting condition.  Appellant
argues that an aggravation rules out the possibility that appel-
lee's disability is caused by a single incident.  We do not agree
with appellant's reasoning.  
     An aggravation is a new injury resulting from an independent
incident.  See Pinkston v. General Tire & Rubber Co., 30 Ark. App.
46, 782 S.W.2d 375 (1990).  The independent incident must be shown
to be work-related to establish compensability.  In addition, under
Ark. Code Ann.  11-9-102(5)(A)(i), it must be shown that the
accidental injury was caused by a specific incident identifiable by
time and place of occurrence.  In this case, the independent
incident was appellee's accident at work of moving the coke
canister.  The Commission found, and we have agreed, that the
incident was compensable and that it met the definition of an
"accidental injury" because it was a specific incident identifiable
by time and place of occurrence.   Therefore, an aggravation, being
a new injury with an independent cause, must meet the requirements
for a compensable injury and can be caused by a specific incident.
     Affirmed.
     Robbins and Neal, JJ., agree.