Little Rock Convention and Visitors Bureau v. Pack

LITTLE ROCK CONVENTION AND VISITORS BUREAU v.
David PACK

CA 97-698                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered December 22, 1997


1.   Workers' compensation -- factors on review -- substantial
     evidence defined. -- In determining the sufficiency of the
     evidence to sustain the findings of the Workers' Compensation
     Commission, the appellate court reviews the evidence in the
     light most favorable to the Commission's findings and affirms
     if they are supported by substantial evidence; substantial
     evidence is such relevant evidence as a reasonable mind might
     accept as adequate to support a conclusion; the question is
     not whether the evidence would have supported findings
     contrary to the ones made by the Commission; there may be
     substantial evidence to support the Commission's decision even
     though the appellate court might have reached a different
     conclusion if that court sat as the trier of fact or heard the
     case de novo.

2.   Workers' compensation -- credibility of witnesses for
     Commission to determine -- resolution of conflicting evidence
     up to Commission. -- It is the function of the Workers'
     Compensation Commission to determine the credibility of the
     witnesses and the weight to be given their testimony; the
     Commission has the duty of weighing medical evidence and, if
     the evidence is conflicting, its resolution is a question of
     fact for the Commission.   

3.   Workers' compensation -- compensable injury -- unexplained
     injury versus idiopathic injury. -- In order to be
     compensable, an injury must be found to arise out of and in
     the course of a claimant's employment; however, Arkansas
     courts have said that where a claimant suffers an "unexplained
     injury" at work, it is compensable; in contrast, when a
     claimant suffers an "idiopathic injury," it is not compensable
     because such an injury is considered personal in origin and
     would not, therefore, arise out of and in the course of the
     employment.  

4.   Workers' compensation -- compensable injury -- unexplained
     injury and idiopathic injury contrasted. -- When one suffers
     an injury at work, the cause is, obviously, either known or
     unknown; the most common example of a situation in which the
     cause of the harm is unknown is the unexplained fall in the
     course of employment and most courts confronted with that
     situation have seen fit to award compensation; however,
     injuries from idiopathic falls do not arise out of the
     employment unless the employment contributes to the risk or
     aggravates the injury by, for example, placing the employee in
     a position which increases the dangerous effect of the fall,
     such as on a height, near machinery or sharp corners, or in a
     moving vehicle. 

5.   Workers' compensation -- compensable injury -- idiopathic
     injury defined. -- The word "idiopathic" is defined as (1)
     peculiar to the individual, (2) arising spontaneously or from
     an obscure or unknown cause; unexplained fall cases begin with
     a completely neutral origin of the mishap, while idiopathic
     fall cases begin with an origin which is admittedly personal
     and which therefore requires some affirmative employment
     contribution to offset the prima facie showing of personal
     origin.

6.   Workers' compensation -- accident "arising out of employment"
     compensable -- burden of proof. -- A workers' compensation
     claimant bears the burden of proving that his injury was the
     result of an accident that arose in the course of his
     employment, and that it grew out of, or resulted from the
     employment; "arising out of the employment" refers to the
     origin or cause of the accident, while "in the course of the
     employment" refers to the time, place and circumstances under
     which the injury occurred; when a truly unexplained fall
     occurs while the employee is on the job and performing the
     duties of his employment, the injury resulting therefrom is
     compensable. 

7.   Workers' compensation -- employer's argument based on
     speculation -- Commission's finding that appellee suffered
     unexplained fall supported by substantial evidence. -- Where
     the employer's arguments were based merely upon speculation as
     to how appellee's injury might have occurred and the Workers'
     Compensation Commission, in its summary of the facts, medical
     records, and testimony, concluded that there was no evidence
     that a condition personal to appellee caused his injury, the
     appellate court, upon a review of the record, could not say
     that there was not substantial evidence to support the
     Commission's finding that appellee suffered a compensable
     unexplained fall.

8.   Workers' compensation -- benefits for nursing services -- when
     allowed. -- The services contemplated under "nursing services"
     are those rendered in tending or ministering to another in
     sickness or infirmity; nursing services do not include
     assistance with household and personal tasks which the
     claimant is unable to perform; benefits for nursing services
     have been allowed where the services consisted of medical
     care, including changing bandages and cleaning a wound, 
     giving injections, enemas and hot baths, physical therapy, and
     where the claimant was mentally and physically helpless with
     no control over his bodily functions and needed twenty-four
     hour per day care; however, nursing services were not allowed
     where the claimant needed supervision because he was depressed
     and suicidal.

9.   Workers' compensation -- benefits for nursing services denied
     -- denial supported by substantial evidence. -- Where
     appellee's doctors noted that he needed encouragement to do
     such personal things as caring for himself, and appellee's
     mother only assisted him in his daily tasks and housekeeping
     and did not provide any medical care to appellee, the
     appellate court could not say that there was not substantial
     evidence to support the denial of benefits for nursing
     services.


     Appeal from Arkansas Workers Compensation Commission;
affirmed.
     Dover & Dixon, P.A., by:  Joseph H. Purvis, for appellant.
     Dabbs, Graham & Pomtree, by:  Jeffrey M. Graham, for appellee.

     Andree Layton Roaf, Judge.
     The Little Rock Convention and Visitors Bureau (employer)
appeals from a Workersþ Compensation Commission decision finding
that the appellee, David Pack, suffered a compensable unexplained
fall.  Pack, who suffered brain damage as a result of the fall and
is permanently and totally disabled, cross-appeals from the denial
of benefits for nursing services provided by his mother.  On
appeal, the employer contends that the Commission erred in finding
that Pack proved that his condition resulted from an injury that 
arose out of and in the course of his employment.  Pack contends on
cross-appeal that the denial of benefits for nursing services is
not supported by substantial evidence.  We affirm on both the
appeal and the cross-appeal.
     David Pack, aged thirty-eight, was employed by the appellant
as a maintenance worker.  On April 16, 1991, he was working alone,
applying caulk to a concrete walkway outside Robinson Auditorium. 
A co-worker, Tim Gosser, testified that he observed Pack bent over,
squatting or on his hands and knees while he was caulking, and that
he spoke to Pack and he seemed fine.  However, when Gosser returned
to where Pack was working about twenty minutes later, he found Pack
lying on the ground on his stomach, with his head turned to the
right.  Pack was barely breathing and was beginning to turn blue. 
Gosser called Packþs supervisor, who turned Pack over onto his back
and called for an ambulance.
     Paramedics arrived and performed a þjaw thrustþ to open up
Packþs airway.  The paramedic stated that Pack was attempting to
breathe, but was not moving any air.  A small abrasion to Packþs
forehead was the only sign of trauma noted.  The paramedic
testified that he did not observe evidence of seizures at the scene
of the accident or on the way to the hospital.  He testified that
although he noted copious saliva, which can be present with
seizures, he did not feel that Pack had suffered a seizure because
there was no evidence of incontinence, blood in Packþs saliva, or
abrasions on his head and hands from thrashing about.  While in
route to the hospital, Pack was administered oxygen and began to
regain color and his blood pressure returned to a more normal rate. 
After Pack reached the UAMS Emergency Room, he experienced several
grand mal seizures.  He remained at UAMS for six days and was then
transferred to Baptist Memorial Hospital where he remained for
nearly one month.  After his release from the hospital, Pack
underwent a month of rehabilitation at Baptist Rehabilitation
Institute.  His mother cared for him at home until he was enrolled
in the Timber Ridge Neurorehabilitation Program for one month in
1993.  His mother then resumed his care and continues to care for
him.  The parties stipulated that Pack suffered brain damage and
that he is permanently and totally disabled.
     At the hearing, Gosser, Packþs co-worker, testified that he
was not aware that Pack had any health problems or problems with
drugs or alcohol.  Gosser also stated that he did not see any
foreign objects near Pack which he might have choked on.  Bill
Patten, Packþs supervisor, testified that Pack did not have any
alcohol or health problems that he knew of, although he thought he
had smelled alcohol on him before the date of the accident.  Patten
also noted that Pack had missed several days of work due to illness
just prior to the accident.
     Ruth Siratt, Packþs mother, testified that Pack was divorced
and had lived with her for several years prior to his accident. 
She testified that he had no health problems other than seasonal
allergies.  Siratt denied that Pack had a drinking problem and
testified that she did not know how a reference to an alcohol
problem got into Packþs medical records.  Siratt testified about
Packþs care and transfer among the hospitals and to the
rehabilitation institutes.  She testified that she had to toilet
train Pack after the injury and that it took about four to six
months.  She testified that she still washes Packþs hair and that
she has to help him shave.  She stated that he can be left alone
for periods of time, but that doctors have indicated that if he is
in a cold room, he will not turn on the heat, or that if the room
becomes hot, he will not turn on the air conditioning.  She
testified that she has to give Pack verbal cues to attend to his
personal hygiene because he lacks the initiative to do it himself. 
     Dr. Edward Barron, who first examined Pack on July 30, 1992,
testified as to the most probable sequence of events leading to
Packþs injury.  Based on his review of the medical records, Dr.
Barron theorized that when Pack stood up after kneeling or bending
over for a period of time, he had a þvaso-vagal syncopeþ (fainted),
fell to the ground, struck his forehead, and was knocked
unconscious.  Dr. Barron stated that Packþs airway was obstructed
because of the positioning of his head, and that Pack developed
hypoxic encephalopathy (lack of oxygen to the brain), resulting in
permanent brain damage.  He stated that the seizure activity
observed after Pack reached the hospital was secondary to the
hypoxic encephalopathy.
     Packþs mother, now his legal guardian, filed a claim for
workersþ compensation benefits.  She also sought an award for
nursing services for his continuing care.  The Commission found
that Pack suffered an þunexplained fall,þ and that he was,
therefore, entitled to benefits.  The Commission, however, denied
the claim for þnursing services.þ

1.  Unexplained Fall
     The employer argues that there was insufficient evidence to
prove that Packþs injuries þarose out of and in the course of his
employment,þ and that Pack suffered a noncompensable þidiopathicþ
fall, rather than a compensable þunexplainedþ fall.  In determining
the sufficiency of the evidence to sustain the findings of the
Workers' Compensation Commission, we review the evidence in the
light most favorable to the Commission's findings and affirm if
they are supported by substantial evidence.  Weldon v. Pierce Bros.
Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996).  Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.  City of Fort Smith v.
Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992).  The question is
not whether the evidence would have supported findings contrary to
the ones made by the Commission; there may be substantial evidence
to support the Commission's decision even though we might have
reached a different conclusion if we sat as the trier of fact or
heard the case de novo.  Tyson Foods, Inc. v. Disheroon, 26 Ark.
App. 145, 761 S.W.2d 617 (1988).  In making our review, we
recognize that it is the function of the Commission to determine
the credibility of the witnesses and the weight to be given their
testimony.  Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14
(1995).  The Commission has the duty of weighing medical evidence
and, if the evidence is conflicting, its resolution is a question
of fact for the Commission.  Id.  
     The Commission noted that, in order to be compensable, an
injury must be found to arise out of and in the course of a
claimantþs employment.  However, Arkansas courts have said that
where a claimant suffers an þunexplained injuryþ at work, it is
compensable.  In contrast, when a claimant suffers an þidiopathic
injury,þ it is not compensable because such an injury is considered
personal in origin and would not, therefore, arise out of and in
the course of the employment.  This court explained the distinction
in Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496
(1987):
     When one suffers an injury at work, the cause is,
     obviously, either known or unknown.  Larson's treatise on
     workers' compensation law states that the most common
     example of a situation in which the cause of the harm is
     unknown is the unexplained fall in the course of
     employment and that most courts confronted with that
     situation have seen fit to award compensation.  However,
     injuries from idiopathic falls do not arise out of the
     employment unless the employment contributes to the risk
     or aggravates the injury by, for example, placing the
     employee in a position which increases the dangerous
     effect of the fall, such as on a height, near machinery
     or sharp corners, or in a moving vehicle. 

          The word "idiopathic" is defined in Webster's Third
     New International Dictionary, Unabridged (1976), as (1)
     peculiar to the individual, (2) arising spontaneously or
     from an obscure or unknown cause.  Although the two
     concepts are frequently confused, Larson says
     "unexplained fall cases begin with a completely neutral
     origin of the mishap, while idiopathic fall cases begin
     with an origin which is admittedly personal and which
     therefore requires some affirmative employment
     contribution to offset the prima facie showing of
     personal origin."  (Citations omitted.)
Moore, 22 Ark. App. at 25, 732 S.W.2d  at 498.
     The court further noted that a workersþ compensation claimant
bears the burden of proving that his injury was the result of an
accident that arose in the course of his employment, and that it
grew out of, or resulted from the employment.  Id. at 27, 732 S.W.2d  at 499.  þArising out of the employmentþ refers to the
origin or cause of the accident, while þin the course of the
employmentþ refers to the time, place and circumstances under which
the injury occurred.  Id. (citing Owens v. National Health Lab.,
Inc., 8 Ark. App. 92, 97 S.W.2d 829 (1983)).  When a truly
unexplained fall occurs while the employee is on the job and
performing the duties of his employment, the injury resulting
therefrom is compensable.  Id.
     In the present case, the Commission found that Pack suffered
an þunexplained fallþ based on the following facts: (1) the co-
worker who last saw Pack conscious testified there was nothing
abnormal about Packþs condition, and about twenty minutes passed
between the time he last saw Pack and when he found him
unconscious; (2) the paramedic testified that he did not see a
foreign object at the scene (something Pack might have choked on)
and about the lack of evidence that Pack had suffered a seizure
when he fell; (3) Packþs post-injury alcohol and drug screens were
negative and there was no record of prior seizures or
abnormalities; (4) Packþs discharge summary stated that the cause
of his injury was unknown, and the doctors who treated Pack after
his injury only theorized that Pack could have had a seizure which
caused his airway to be blocked or that his subsequent seizures in
the emergency room could have been caused by having his airway
blocked; and  (5) medical testimony revealed that, had Packþs
injury been alcohol-related, there would have been alcohol in his
system.  There was also no evidence that chronic alcohol abuse
would increase the risk of seizures.
     The employer argues that there was evidence that Pack drank a
six-pack of beer daily prior to his injury, and suggests that
alcohol abuse could have led to his injury.  The employer also
argues that, even if the Commission accepted Dr. Barronþs scenario
as to how Packþs injury occurred, it should still be found to be an
þidiopathic injuryþ because it may have happened due to Packþs
weakened condition because of illness.  The employer further argues
that because what Pack was doing, applying caulk, was þhardly a
risky task,þ his idiopathic injury is not compensable.  However,
these arguments are based merely upon speculation as to how Packþs
injury might have occurred.  The Commission, in its summary of the
facts, medical records, and testimony, concluded that there was no
evidence that a condition personal to Pack caused his injury.  
Upon our review of the record, we cannot say that there is not
substantial evidence to support the Commissionþs finding that Pack
suffered a compensable unexplained fall.

2. Nursing Services
     On cross-appeal, Pack argues that the decision to deny
benefits for nursing services is not supported by substantial
evidence.  He argues that he needs twenty-four hour supervision,
cannot care for himself, and cannot participate in out-of-home
programs, such as Easter Seals, because he is too old and because
his motherþs 5:00 a.m. to 1:00 p.m. work schedule does not allow
her to be present to prepare him to be picked up in the mornings. 
Pack contends that even though his physical limitations are
minimal, his mental limitations are great, and he would need to be
in a nursing home if his mother did not care for him.
     While it is true that doctors have indicated that Pack is
incapable of living alone and taking care of himself, his mother
described the tasks she must perform for him as primarily giving
him "verbal cues."  Although Pack can bathe himself, dress himself,
and perform other personal tasks, his mother testified that he is
not likely to initiate those tasks without being told to do so. 
Pack's mother testified that while she sometimes has to help him
finish shaving and tell him what clothes to put on, he can do those
things himself.  There was no evidence that Pack needs constant
supervision or that he cannot be left alone.  In fact, Pack's
mother works at a nursing home in the mornings and Pack is left
alone until 1:00 p.m.  The Commission also noted that Pack was
enrolled in a computer training class during the time his mother
claimed he was incontinent.
     The supreme court has said that the services contemplated
under þnursing servicesþ are those rendered in tending or
ministering to another in sickness or infirmity.   Pickens-Bond
Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979).  Nursing
services do not include assistance with household and personal
tasks which the claimant is unable to perform.  Pine Bluff Parks &
Recreation v. Porter, 6 Ark. App. 154, 639 S.W.2d 363 (1982);
Pickens-Bond Constr. Co., supra.  Benefits for nursing services
have been allowed where the services consisted of medical care,
including changing bandages and cleaning a wound, (Tibbs v. Dixie
Bearings, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1983)), giving
injections, enemas and hot baths, (Dresser Minerals v. Hunt, 266
Ark. 323, 584 S.W.2d 21 (1979)), physical therapy, (Wasson v.
Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984)), and where the
claimant was mentally and physically helpless with no control over
his bodily functions and needed twenty-four hour per day care (Sisk
v. Philpot, 244 Ark. 79, 423 S.W.2d 871 (1968)).  However, nursing
services were not allowed where the claimant needed supervision
because he was depressed and suicidal.  J.P. Price Lumber Co. v.
Adams, 258 Ark. 631, 527 S.W.2d 932 (1975).
     In Pack's case, his doctors noted that he needed encouragement
to do such personal things as caring for himself.  Moreover,
according to Packþs mother, she only assists him in his daily tasks
and housekeeping, and does not provide any medical care to Pack. 
Based on the relevant case law and on Pack's mother's testimony
regarding the type of care she provided to her son, we cannot say
that there is not substantial evidence to support the denial of
benefits for nursing services.
     Affirmed.
     Robbins, C.J., and Meads, J., agree.