Ellison Enterprises, Inc. and Benchmark Insurance Company v. Tammy Oldaker

Annotate this Case

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-480

DIVISION IV

ELLISON ENTERPRISES, INC., and Benchmark Insurance Company

APPELLANTS

V.

TAMMY OLDAKER

APPELLEE

CA05-480

December 7, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F210279]

REMANDED

Josephine Linker Hart, Judge

Appellants, Ellison Enterprises, Inc., and Benchmark Insurance Company, appeal from the Arkansas Workers' Compensation Commission's decision to award benefits to appellee, Tammy Oldaker. Among the issues raised on appeal, appellants argue that the Commission failed to make findings of fact regarding whether appellee's injury arose out of and in the course of employment. We remand for the sole purpose of allowing the Commission to make findings of fact on this issue.

As noted by the Commission, the issue before it was whether appellee suffered a compensable gradual-onset back injury. In its opinion reversing the administrative law judge's denial of benefits, the Commission cited to the relevant statutory definition of a "compensable injury," that is, 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 identifiable by time and place of occurrence, if the injury is ... [a] back injury ... which is not caused by a specific incident or which is not identifiable by time and place of occurrence." See Ark. Code Ann. ยง 11-9-102(4)(A)(ii)(b) (Supp. 2005). The

Commission then found that appellee "proved by a preponderance of the evidence that she sustained an injury causing physical harm to her body, which was a back injury not caused by a specific incident and not identifiable by time and place of occurrence." The Commission further found that appellee "established a compensable injury by medical evidence supported by objective findings" and that appellee "proved that the compensable injury was the major cause of her disability or need for treatment." Also, the Commission found that appellee was a "credible witness" and that "the clear weight of probative evidence supports her testimony." Finally, the Commission concluded that it attached "greater weight to the credible testimony of the claimant and the corroborating medical records."

Appellants argue that the Commission never made "any finding of fact, nor states anywhere in its Opinion, that appellee's injury arose out of and in the course of her employment." We agree. While there may be evidence in the record to support such findings, the Commission failed to resolve the issue by making specific findings of fact. And we do not review decisions of the Commission de novo on the record or make findings of fact that the Commission should have made but did not; rather, we review the sufficiency of the evidence to support the findings that the Commission does make. Sonic Drive-In v. Wade, 36 Ark. App. 4, 816 S.W.2d 889 (1991). When the Commission fails to make specific findings on an issue, we remand the case for the Commission to make such findings. Id. Consequently, to avoid piecemeal review, we do not address other issues raised by appellants, and instead, we remand to the Commission so that it may make a specific findings of fact on the issue of whether appellee's injury arose out of and in the course of employment.

Remanded.

Pittman, C.J., and Gladwin, J., agree.