Opinion
CLAIM NO. E416028
OPINION FILED MARCH 21, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ROBERT L. DEPPER, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE BRIAN H. RATCLIFF, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on April 30, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove that he sustained a compensable injury. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that he sustained a compensable "unexplained" fall. Therefore, we find that the administrative law judge's decision must be reversed.
The claimant experienced a syncope related disorientation and fell while employed as a painter by respondents on October 3, 1994. The respondents assert that the claimant experienced a non-compensable "idiopathic" fall, and have denied liability for the claimant's injury. The only issue before the Commission in the present claim regards the compensability or non-compensability of the claimant's injury.
For an employee's injury to be compensable under the Arkansas Workers' Compensation Law, it must result from an injury "arising out of and in the course of employment." Ark. Code Ann. § 11-9-401 (Repl. 1996). An injury occurs "in the course of employment" when it occurs "within the time and space boundaries of the employment, while the employee is carrying out the employer's purpose, or advancing the employer's interests directly or indirectly."City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). The phrase "arising out of the employment" refers to the origin or cause of the accident, so it must be shown that a causal connection exists between the injury and the employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). In order for an injury to arise out of the employment, it must be a natural or probable consequence or incident of the employment and a natural result of one of its risks. J G Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark.App. 1980).
The Arkansas Workers' Compensation Law does not contain a statutory presumption that "unexplained injuries" are compensable. Nevertheless, the Arkansas Courts have clearly indicated that an "unexplained injury" is compensable under the Arkansas Workers' Compensation law. See, Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987); Roc-Arc Water Co. v. Moore, 10 Ark. App. 349 (1984). As the Court of Appeals explained in Moore:
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. 1 Larson, The Law of Workmen's Compensation, § 10.31, at 3-87 (1985). 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. Larson § 12.11.
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." Larson § 12.11, at 3-314.
Our Arkansas cases have followed the above rules.
In the present claim, we find that the preponderance of the evidence establishes that the claimant sustained a fall of "unknown" origin as opposed to an "idiopathic" fall. In this regard, Dr. Stephen Pinkerton testified that he ordered a number of diagnostic tests to determine the cause of the claimant's syncope experience including a CT scan of the brain, an electroencephalogram, x-rays, an echocardiogram, a sinus series, Doppler neck studies, and a complete blood count (CBC) and chemistry. Diagnostic testing only indicated an old bone fracture in the cervical spine, a sinus polyp, and an elevated white blood cell count. Dr. Pinkerton testified that, to his knowledge, he had never known of anyone to experience a syncope caused by sinus infection.
Likewise, after reviewing the claimant's medical reports and the deposition of Dr. Pinkerton at the request of the respondents, Dr. Alvin Scott Hardin relayed the following opinion regarding the cause of the claimant's fall:
It is my opinion that the cause of Mr. Slaughter's fall on October 3, 1994 cannot be determined with the evidence that is available. The most likely theory, in my opinion, is that fumes from the paintbrush that he was working with at the time of the fall possibly led to dizziness that caused his fall. It appears fairly certain from the history provided and from the findings at the time of the Emergency Room presentation that this man's state of unconsciousness was related to the blow to his head when he fell rather than the actual circumstances of the fall. . . . It does not appear that Mr. Slaughter's injury was in any way related to cardiovascular, pulmonary or other internal injury that would cause any form of permanent damage.
In short, both of the physicians who have reviewed the claimant's medical records have opined that the claimant sustained a fall of unexplained origin. Therefore, after conducting a de novo review of the entire record, and for reasons discussed herein, we find that the claimant sustained a compensable "unexplained" fall. Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appear before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury arising out of and in the course of his employment with Phillip Williams Painting Company. Based upon my de novo review of the entire evidence, I find that claimant has failed to meet his burden of proof.
I simply cannot agree with my fellow Commissioners that claimant sustained an unexplained injury which is compensable under the Arkansas Workers' Compensation Law.
Claimant's injury occurred on October 3, 1994. Thus, this claim is governed by the law as amended by Act 796 of 1993. In order to prove his claim, claimant must prove that he sustained a compensable injury by a preponderance of the credible evidence. Furthermore, the case law regarding idiopathic falls states that injuries from idiopathic falls do not arise out of the employment unless the employment contributes to the risk or exacerbates the injury. Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987); Nu-Way Laundry and Cleaners v. Palmers, 12 Ark. App. 312, 670 S.W.2d 464 (1984). Unexplained falls are those falls which have a completely neutral origin while idiopathic falls have an origin which is admittedly personal and which requires some evidence of an affirmative employment contribution. In my opinion, claimant has failed to establish an affirmative employment contribution beyond mere speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Notably, Dr. Stephen Pinkerton testified in his deposition that claimant's fall was peculiar to claimant personally. Moreover, Dr. Alvin Scott Hardin was of the opinion that the cause of claimant's fall cannot be determined by the evidence available. Although Dr. Hardin does pose a "likely theory" that claimant's fall occurred due to fumes from claimant's paint brush, this theory is not stated within a reasonable degree of medical certainty and does not overcome his previous statement that there is no evidence available to determine the cause of claimant's fall.
Ark. Code Ann. § 11-9-102 (16) requires that medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Clearly, neither Dr. Pinkerton nor Dr. Hardin offer an opinion within a reasonable degree of medical certainty which has a basis in fact. Their medical opinions regarding the cause of claimant's fall are simply theories and rely on nothing more than the history claimant provided. The Commission is not bound by a doctor's opinion which is based largely on facts related to him by claimant where there is no sufficient independent knowledge upon which to corroborate claimant's claim. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).
Moreover, claimant, himself, cannot provide a reasonable affirmative employment contribution for his fall. When asked directly if sniffing the paint brush caused his fall claimant stated "I can't tell you which one it was." Moreover, during claimant's deposition he failed to even offer an explanation for his fall.
Accordingly, in my opinion, without more proof of an affirmative employment contribution regarding the cause of claimant's fall I cannot find that claimant's fall is compensable. At best, all the evidence points to a non-compensable idiopathic fall. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner