Atkins Nursing Home v. Gray

*ADVREP*CA5*                          DIVISION III




                                       CA 95-920
                                        
                                                     June 19, 1996     



ATKINS NURSING HOME                  AN APPEAL FROM THE ARKANSAS     
                 APPELLANT           WORKERS' COMPENSATION COMMISSION
                                     NOS. E313759 & E313760           
V.
                                                                
CAROL GRAY                                            
                 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 on August 20, 1993, appellant
sustained a recurrence of her low back condition, that appellee was
responsible for medical expenses and that appellant was entitled to
temporary total disability benefits from August 23, 1993, to a date
yet to be determined.  Also, the Commission determined that Act 796
of 1993 was inapplicable to recurrences of injuries which original-
ly occurred prior to the effective date of Act 796.  On appeal,
appellant argues that there is no substantial evidence to support
the Commission's decision and that the Commission erred in finding
that Act 796 was inapplicable.  We disagree and affirm.
     The record reveals that appellee, age thirty-four, was a
certified nurse's aide for appellant.  While trying to change
linens under a patient, Patsy Price, she sustained an injury to her
lower back on July 16, 1992.  She experienced a burning sensation
in her lower back and reported the incident to LPN, Renee Glenn. 
She rested over the weekend, missed a day of work and received
medical treatment.  On Friday, August 20, 1993, while lifting a
patient into a shower chair, appellee felt a hot burning sensation
in the same area as she had in July of 1992.  She completed her
shift and rested over the weekend.  She returned to work Monday,
August 23, and reported the incident to Kay Parker, who assured her
that her claim was covered.  Later, after appellee had received
medical attention, she was informed that the time limit from the
first injury had expired and that her claim would not be covered. 
Subsequently, appellee filed a claim for benefits.
     On appeal, appellant argues that there is no substantial
evidence to support the Commission's decision that appellee
suffered a recurrence of her 1992 injury.  We disagree.
     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.  Harvest
Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).    
     When the primary injury is shown to have arisen out of and in
the course of the employment, the employer is responsible for every
natural consequence that flows from that injury.  If, after the
period of initial disability has subsided, the injury flares up
without an intervening cause and creates a second disability, it is
a mere recurrence, and the employer remains liable.  McDonald
Equip. Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989).  A
recurrence is not a new injury but simply another period of
incapacitation resulting from a previous injury.  See Pinkston v.
General Tire & Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990).
     The record reveals that appellee sustained a compensable
injury in July of 1992.  This injury was a muscle strain with
spasm.  Appellee testified that she continued to experience
soreness with exertion.  She said that she would work four days,
but would have to lie down and rest the next day.  Appellee
testified that in March and April of 1993, she became more
symptomatic and that she mentioned this to a co-worker, Darlene
Epperson.  Appellee said that on Friday, August 20, while lifting
a patient into a shower chair, she felt a hot burning sensation in
the same area as her previous injury.  
     Appellee was seen by Dr. Dale Barton.  Dr. Barton diagnosed
back pain with observable muscle spasms and degenerative disc
disease at L5-S1.  An MRI revealed an abnormality at L4-5.  Dr.
Barton referred appellee to Dr. Scott M. Schlesinger.  Dr.
Schlesinger reviewed the MRI and suggested that appellee may have
a disc protrusion at L4-5.  He recommended a myelogram CT scan, but
his evaluation was not completed because the claim was denied, and
appellee could not afford the costs.
     Ms. Parker testified that appellee came in in 1993 and showed
her where she had hurt her back.  Ms. Parker said that appellee
said it was in the same place as the previous injury. 
     The ALJ clearly gave great weight to the testimony of appellee
in finding that appellee injured her back in 1992, returned to
heavy manual labor, remained symptomatic and suffered a recurrence
in 1993.  The ALJ further found that the 1993 injury was reported
and that appellant considered this a recurrence by advising
appellee that she did not have to complete another accident form,
by sending her to the company doctor, and by providing light duty. 
The ALJ concluded that appellee had proven by a preponderance of
the credible evidence that appellee had sustained a recurrence of
her low back condition on August 20, 1993.  Based on the record
before us, we cannot say that there is no substantial evidence to
support the Commission's finding that appellee sustained a
recurrence of her 1992 injury.
     For its second point, appellant argues that the Commission
erred in finding that Act 796 of 1993 was inapplicable to the facts
of this case.  We disagree.
     As discussed above, a recurrence is not a new injury but
merely another period of incapacitation resulting from a previous
injury.  Under the general provisions of the 1993 workers'
compensation statute chapter nine, subchapter one, it provides that
"the provisions of this act shall apply only to injuries which
occur after July 1, 1993."  The record clearly reflects that
appellee's injury was in 1992 before the enactment of Act 796. 
Consequently, Act 796 does not apply to this case because appellee
did not sustain an injury after July 1, 1993, but merely another
period of incapacitation.  Therefore, the Commission did not err in
determining that the new act did not apply.
     Appellant also challenges the Commission's finding that
appellee was entitled to medical benefits and temporary total
disability benefits.  
     The Commission directed appellant to pay all reasonable
medical expenses associated with appellee's lumbar injury. 
Appellant argues, under Act 796, that to be entitled to medical
benefits appellee would have to show that her compensable injury
was the major cause of her disability or need for treatment.  Based
on our earlier finding that Act 796 does not apply to this case,
appellant's argument is without merit.
     The Commission also found that appellee was entitled to
temporary total disability benefits from August 23, 1993, to a date
yet to be determined because she was unable to work and thus
remained in her healing period.  After reviewing the record, we
cannot say that there is no substantial evidence to support the
Commission's decision.
     Affirmed.
     Robbins and Neal, JJ., agree.