author: LAVENSKI R. Smith, Justice.

text:
    Annalee PATTERSON v. ARKANSAS DEPARTMENT of HEALTH; Arkansas Insurance Department; Second Injury Trust Fund
    00-604
    33 S.W.3d 151
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Larry Hartsjield, for appellant.

      Richard S. Smith, for appellee Arkansas Insurance Department.

      Judy W. Rudd, for appellee Second Injury Fund.
   LAVENSKI R. Smith, Justice.

Appellant Annalee Patterson brings the instant appeal challenging a decision of the Arkansas Workers’ Compensation Commission denying her claim for permanent and total disability benefits under the odd-lot doctrine. The court of appeals reversed the Commission’s decision, and Appellees Arkansas Department of Health (ADH) and Arkansas Insurance Department, Public Employee Claims Division (PECD) petitioned this court for review of the court of appeals’ decision. Appellee the Second Injury Trust Fund (SIF) filed a supplemental brief contesting any award from the Second Injury Fund, which the court of appeals and the commission determined was not applicable in this case. We accepted review, and reverse in part and affirm in part.

Facts

On December 19, 1991, Patterson sustained a compensable injury to her lumbar spine when she reached across and moved her desk to plug in an electrical surge protector. Patterson, currently a fifty-year-old woman who was employed at ADH as an administrative nurse, testified that she experienced immediate pain in her back. By the end of the day she could barely walk, and during the night she went to the emergency room because her symptoms had progressed. She was admitted for three days. After her release, she received conservative care from Dr. John Wilson, an orthopedic doctor, through the end of January 1992.

Because of increasing pain and numbness, Dr. Wilson referred Patterson to Dr. Jim Moore, another orthopedic surgeon, who ordered a lumbar myelogram and contrasting CT on January 31, 1992, which revealed “significant abnormality” at the L5-S1 and L4-5 levels in her lumbar spine. Due to the nature of the injury, Dr. Moore performed a surgical decompression, and found acute disc ruptures in these discs. This surgery was the first of five over the course of Patterson’s treatment.

Dr. Moore released Patterson on April 6, 1992, to work half days on a light-duty trial basis. Dr. Moore’s reports after this date indicate that Patterson was working some, but that she was missing work because of pain. Reports through 1992 indicate that Patterson had returned to work, but that she was experiencing constant pain in her left leg and ankle, which Dr. Moore treated with epidural steroid injections, a splint, and specialized shoes.

In August 1993, Patterson underwent another myelogram and CT scan which indicated “marked compression at the SI level on the right side,” and ultimately underwent a second surgery on October 11, 1993. Only three months later, Patterson underwent another myelogram on January 27, 1994, which indicated continued problems in the lumbar spine, including a recurrent disc herniation at L5-S1. At this time, she was diagnosed with foot-drop syndrome in her legs and feet. However, a follow-up EMG nerve conduction study performed on February 2, 1994, by Dr. David Miles showed no electrical abnormalities on either the left or right sides. Due to these conflicting findings, Dr. Moore referred Patterson to Dr. Thomas Fletcher for a second neurosurgical opinion to determine the proper treatment.

Dr. Fletcher saw Patterson on February 22, 1994, and he recommended a third surgery to attempt to relieve a possible SI nerve root compression on the right side of her lumber spine. An additional surgery was performed on March 3, 1994, by Dr. Moore. Post-operative exam reports indicate that while Patterson was still experiencing tenderness and weakness, she was anxious to return to work, and was allowed to return for two days a week for half-day work. However, on June 8, 1994, Dr. Moore reported that Patterson was having difficulty at work because of continued pain and numbness. He stated in this report, “In fact, I am concerned that the patient may well not be able to return to working activities and thus may well be a candidate for consideration of retirement medically.”

Patterson continued to experience pain and weakness in her back, buttocks, and legs, and Dr. Moore ordered another myelogram and CT scan on July 27, 1994. These tests revealed that Patterson was suffering from arachnoiditis in the lower thecal sac, but that additional surgery would not be beneficial at that time. Dr. Moore continued to perform local blocks in the nerves in her back, and Patterson apparently experienced some relief from these. However, due to continued radiational pain, Dr. Moore scheduled a fourth surgery on April 11, 1995, to excise some scar material around the lumbar spine. Dr. Moore’s pre- and post-operative diagnoses were identical, as “pseudoradiculopathy secondary to kissing lumbar spines and bursal tissue at L4-5.”

In an office note on June 21, 1995, Dr. Moore reported that Patterson fell approximately ten days prior to the office visit due to the pain and numbness in her feet and legs, and began experiencing acute radiational right lower extremity pain. Patterson reported the fall to be caused by her right foot “giving way” when she tried to walk. Another myelogram on June 26, 1995, showed definite changes from the previous myelogram. Patterson underwent her fifth and final surgery on July 11, 1995. Dr. Moore’s post-operative report indicated that the surgery revealed “post-operative changes at L4-5 and L5-S1” and that he found thecal sac material related to the arachnoiditis, and that this was causing nerve problems. A cerebrospinal fluid leak that developed after surgery was patched surgically on July 15, 1995.

Following this last surgery and cerebrospinal fluid leak, Patterson experienced increased acute low back pain, spasms, and pain radiating into her lower right leg. Patterson began a rehabilitation program at Baptist Rehabilitation Institute, and during her treatment program there, Dr. Jeffery Ketcham performed an adhesiolysis procedure to attempt to relieve the post-laminectomy scarring and radicular pain. However, Patterson experienced no relief from the procedure. Patterson also underwent an MRI at the request of Dr. Thomas Shinder, a neurologist at the The Pain Care Center, who reported in a December 7, 1995, report that he principally diagnosed arachnoiditis with significant behavioral overlay, finding that there was no objective evidence of numbness or weakness because of the spinal fluid leak. On December 14, 1995, Dr. Shinder further found possible cord injury causing an unusual pattern of spasticity and possible conversion disorder, as well as arachnoiditis. On December 21, 1995, Dr. Shinder conducted testing to determine the integrity of spinal cord functioning through posterior tibia and somatosensory testing. In essence, Dr. Shinder put Patterson under sedation to test the amount of spasticity in her lower extremities without the conscious control of the patient. After being unable to find any objective reaction even under extreme sedation, Dr. Shinder’s report continued the diagnosis of possible arachnoiditis, as well as mild radiculopathy and conversion versus factitious disorder.

After testing, Dr. Shinder referred Patterson to a physical therapist beginning in January 1996, and Patterson also underwent psychological testing with Behavior Management Systems, Inc. She was given the Minnesota Multiphasic Personality Inventory (MMPI), which indicated a valid, honest profile and was within normal limits. In May 1996, Patterson underwent another pain injection at Doctor’s Hospital. During this time, as well, Patterson continued to complain of increased inability to think and remember and decreased visual acuity, and Dr. Shinder’s reports indicate that the pain medication was possibly causing some of the problems.

In Dr. Shinder’s absence, Patterson began seeing Dr. Reginald Rutherford at The Pain Care Center in July 1996. In September 1996, Liz Batchelor, a nurse with the insurance company overseeing the workers’ compensation claim, requested that Dr. Rutherford assign an impairment rating to Patterson, and on October 1, 1996, Dr. Rutherford released Patterson with a 25% impairment rating to the body as a whole. In this report, Dr. Rutherford stated that he believed that Patterson would be able to perform sedentary work, dependent on her level of motivation and the availability of work at ADH. Soon thereafter, Dr. Moore issued a report on October 3, 1996, assessing Patterson’s disability percentage at 60% to the body as a whole. On November 4, 1996, he indicated that he believed Patterson would not be able to return to work, although she could perhaps perform sedentary work, but that she would have to continue on pain medication and would need transportation because she could not drive. He noted that she is relegated to a wheelchair, and that she continues to suffer from cauda equina syndrome. He also indicated that she should not make decisions related to patient care based on her cognitive limitations from the medication and pain.

During the years of treatment with Dr. Moore, Patterson was also treated and seen by several other doctors and rehabilitation specialists in relation to her injury and for a pre-injury non-work-related condition called Sjogren’s Syndrome. In April 1997, Dr. Robert Cheek, Patterson’s primary physician for the Sjogren’s Syndrome, reviewed Patterson’s medical reports at the request of Patterson’s attorney, and reported that he attributed 95% of her post-injury condition to her back injury, and that the Sjogren’s Syndrome really did not contribute to her limitations. He based this opinion on the fact that the Sjogren’s Syndrome had not limited her work activity even after diagnosis in 1989. Another treating physician, Dr. Eleanor Lipsmeyer, also reported on the Sjogren’s Syndrome, and her deposition revealed that the Sjogren’s Syndrome could cause some of the symptoms that Patterson was experiencing, but that most likely the back injury was the cause of most of Patterson’s symptoms.

A hearing was held on December 2, 1997, before the Administrative Law Judge. At the hearing, Patterson testified about her injury and her limitations after each surgery, and especially about her total debilitation after the fifth and final surgery. She indicated that she had been asked to resign after she used up all of her comp, vacation, and sick leave days, and that no one had ever offered her the same job at ADH again. She testified that she did perform work for ADH approximately one day a month for $25 a day, but that it involved only contacting ADH nurses by phone, and that she performed that work at home. She also testified that she sometimes answered questions for the office staff at ADH, and that she was paid approximately $100 a month for all of the work she performed for ADH. She indicated that if she had the ability to work, she would. She further testified that her employer told her that ADH would be willing to make accommodations for her to return to work, but that this was dependent on her ability to meet the job requirements and on Dr. Moore’s approval. It is not clear whether ADH actually offered Patterson a specific job. However, Patterson testified that Dr. Moore indicated that she would be unable to perform a job and should not work. At the time of the hearing, Patterson was taking four medications including oxycontin, a synthetic opiate, which she said “addled” her brain. She said that this medication makes it difficult for her to think and understand. Patterson was the only witness at the hearing, and ADH did not offer any rebuttal testimony or any testimony regarding offers of employment.

The ALJ issued his decision on February 11, 1998, finding that Patterson never received a bona fide offer of employment at wages equal to or exceeding her average weekly wage of $589.28 at the time of her injury. However, the ALJ found that Patterson was not permanently and totally disabled, but had only suffered a permanent disability rating of 80% to the body as a whole with the combined 25% anatomical impairment and the wage loss disability impairment of 55%. Furthermore, the ALJ found that no prior disability or impairment combined with the work-related injury to result in the impairment rating; therefore, the Second Injury Fund would not be liable for any of the benefits.

Patterson appealed the ALJ’s decision to the commission, and on January 29, 1999, the commission affirmed the ALJ’s decision in a 2-1 decision. Commissioner Humphrey dissented in part and affirmed in part, finding that while the Sjogren’s Syndrome did not contribute to Patterson’s permanent disability so as to relieve the Second Injury Fund from liability, Patterson was permanently and totally disabled from her work injury and five subsequent surgeries under the odd-lot doctrine.

On February 26, 1999, Patterson filed her notice of appeal from the Commission’s decision to the Arkansas Court of Appeals, and the court of appeals, in a decision dated May 3, 2000, reversed the commission and found that Patterson had established a prima facie case of permanent and total disability. Furthermore, the court of appeals found that ADH failed to meet its burden of showing that work was readily and consistently available to Patterson. Finally, the court of appeals also determined that the Sjogren’s Syndrome was not a contributing factor to the overall disability so that the Second Injury Fund was not liable for any benefits.

On May 22, 2000, ADH and PECD filed a Petition for Review claiming that the court of appeals’s decision showed an “inconsistency” in the decisions of that court, although the parties failed to indicate what that inconsistency was. The Second Injury Fund and Patterson responded to the petition arguing that ADH and PECD offered no basis for review by the supreme court. Regardless, this court accepted review of the case.

Standard of Review

When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Matthews v. Jefferson Hospital Association, 341 Ark. 5, 14 S.W.3d 482 (2000); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). In appeals involving claims for workers’ compensation, we view the evidence in a light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Id.; Ester v. National Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972); see also, Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998). In other words, we will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; Ester, 335 Ark. 356, 981 S.W.2d 91. These rules insulate the Commission from judicial review and properly so, as it is a specialist in this areas and this court is not; however, a total insulation would render the appellate court’s function in reviewing these cases meaningless. Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999).

Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Dep’t of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). We defer to the Commission’s findings on what testimony it deems to be credible. Id. When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).

Odd-lot Doctrine

This is an odd-lot doctrine case. Section 24 of Act 796 of 1993 [now codified at Ark. Code Ann. § ll-9-522(e) (Repl. 1999], abolished the odd-lot doctrine for permanent disability claims based on injuries that occurred after July 1, 1993; however, the doctrine is applicable to Patterson’s claim stemming from her 1991 back injury. Under the odd-lot doctrine, where the claim is for permanent disability based on incapacity to earn, the Commission is required to consider all competent evidence relating to the disability, including the claimant’s age, education, medical evidence, work experience, and other matters reasonably expected to affect his earning power. Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985).

On appeal to this court, ADH and PECD base their argument on the case of M.M. Cohn Co. v. Haile, 267 Ark. 734, 58 S.W.2d 600 (Ark.. App. 1979), the “odd-lot doctrine” case on which the court of appeals relied in awarding benefits to Patterson. ADH and PECD argue in their supplemental brief to this court that the elements enumerated in Haile apply in that Patterson did not demonstrate that she had an “obvious physical impairment,” because her main complaint is pain. Furthermore, the other criteria of mental capacity, education, training, and age were not met to aEow Patterson to faE within the odd-lot category of cases. Patterson responds in her supplemental brief that her injury is an “obvious physical impairment” and that no doctor has been able to state that she wiE return to the work force in any true working capacity, much less to the level that she was working before the injury. Furthermore, Patterson contends that ADH never proved that there was other work available in the regular job market that Patterson could perform on a regular or continuous basis. The Second Injury Fund merely adds that it should not be liable for any benefits because the reports have consistently indicated that Patterson’s debüitating condition is due only to the work-related injury and not to any other condition, including the Sjogren’s Syndrome.

In determining whether Patterson faEs within the 'odd-lot category of injured workers and should be eligible for permanent and total disability benefits, a two part analysis is required. First, we must consider whether the Commission erred in finding that Patterson failed to make a prima facie case of being in the odd-lot category based upon the factors of permanent impairment, age, mental capacity, education, and training. If so, then we must consider whether the Commission erred in finding that ADH did not carry its burden of showing that some kind of suitable work is regularly and continuously available to the employee, and that a bona fide offer of employment was extended to Patterson. Because our standard of review requires us to review the Commission’s decision, it should be noted that the Commission found, without discussion and by adopting the ALJ’s decision, that Patterson failed to establish by a preponderance of the evidence that she has been rendered permanently and totaEy disabled. Instead the Commission found that she was 80% disabled due to the back injury and residual complications alone. Furthermore, it should be noted that the Commission found that ADH did not carry its burden of proof that Patterson received a bona fide offer of employment at wages equal to or greater than her average weekly wage at the time of the injury.

For many years, Arkansas case law provided that an employee who was injured to the extent that he could perform services that were so limited in quality, dependabüity, or quantity that a reasonably stable market for them did not exist was classified as totally disabled, because he fell within the “odd-lot” category of disabled workers. See Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); Ellison v. Therma-Tru, 66 Ark. App. 286, 989 S.W.2d 987 (1999); Nelson v. Timberline Int’l, Inc., 57 Ark. App. 34, 942 S.W.2d 260 (1997); Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), supp. op., 40 Ark. App. 113, 846 S.W.2d 188 (1993). The employee need not be totally helpless. Id. The odd-lot doctrine refers to employees who are able to work only a small amount; the fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. M.M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979).

On the first prong of the application of the odd-lot doctrine, to be included in the odd-lot category, the claimant must prove that “the evidence of degree of obvious physical impairment, coupled with other factors such as claimant’s mental capacity, education, training, or age, places claimant prima facie in the odd-lot category....” Haile, 267 Ark. at 736. In this case, the Commission adopted the ALJ’s opinion on this issue. However, the ALJ’s opinion is somewhat confusing when discussing the elements under this first prong. In his analysis and conclusion, the ALJ stated:

When the entire record is reviewed, in light of claimant’s age, education, work experience, level of motivation, physical condition, and other matters reasonably expected to affect her future earning capacity, the preponderance of the evidence shows that she has sustained substantial permanent disability but has not been rendered permanently and totally disabled. Even though she had sustained a significant low back injury and had undergone four surgeries, the claimant continued to return to the work place, until the consequences of the last surgery, which were more substantial. Even though she is severely limited by her physical condition and the effects of the medication related to her compensable injury, she has been able to undertake limited employment by being on call, being available to give advice over the telephone, and by doing paperwork, employment which is not constant in its demands on the claimant’s time, but which is not full time and are not widely available with other employers.

What is interesting about the ALJ’s and the Commission’s decision is that they acknowledge that Patterson was able to return to work until after the last surgery and that she is “severely” limited by her physical condition and the affects of the medication. They also note that the work she performed on an intermittent basis for ADH was not full time and was not widely available with other employers. Under the elements of the odd-lot category, at the time of the hearing, Patterson was 47 years old, now 50, and was a registered nurse. Her education and work experience would be that of a fairly skilled person. However, while the Commission through the ALJ notes that the medication affected her ability to work, the opinion fails to indicate how. Patterson’s testimony, however, offers a better glimpse into that situation. As Patterson testified at the hearing, the effect of the synthetic opiate alone made it difficult to concentrate, understand, remain focused, or stay awake for extended periods of time, all of which would be necessary to maintain a regular job. These complaints were further supported by the medical reports wherein Dr. Moore, Patterson’s main treating physician over the course of the entire history of her injury, indicated that he would not want Patterson to perform job functions that require her to make decisions about patient care. In fact, according to Patterson’s testimony, ADH deferred to Dr. Moore’s opinion regarding Patterson’s ability to return to work.

Regarding her level of motivation, the record indicates that Patterson remained motivated to return to work, and there was no indication in the Commission’s decision that she was not motivated. After the first four surgeries, Patterson returned to limited work with ADH, and only claimed an inability to perform substantial work after the fifth surgery. The Commission acknowledged as much. Finally, the Commission through the ALJ found that Patterson was not performing full-time, readily available work at the time of the hearing. Based on these determinations in the Commission’s decision, it is clear that based on Patterson’s age, education, work experience, training, and mental capacity, her prospects for future employment are severely limited. As noted, Patterson is not required to show that she can do no work; instead, she must only show that her disability only allows her to “perform services that were so limited in quality, dependability, or quantity that a reasonably stable market for them did not exist” and that while she was “able to work only a small amount” the fact that she can work some does not preclude her from being considered totally disabled if her overall job prospects are negligible. See Haile, supra.

Finally, on this first prong of the analysis, all of the elements must be balanced in consideration of Patterson’s overall disability. For example, although Patterson is only middle-aged, her disability percentage is high at 80%. And while her education level is fairly skilled, her mental capacity has been diminished by the effect of the medication. Other cases have dealt with such opposing considerations. For example, in Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991), the court of appeals reversed a 2-1 Commission decision denying benefits to the claimant. The court of appeals found that while the claimant only had an impairment rating of 30% to the knee, his age (55) and work history precluded him from finding any regular employment. In Haile, the court of appeals affirmed a finding of total disability under the odd-lot doctrine where the claimant was 62 years old but only had a 10% to 20% disability to her right upper shoulder, and she had developed psychological problems stemming from the injury and the concern of returning to work. However, in Johnson v. Research-Cottrell, 15 Ark. App. 48, 689 S.W.2d 8 (1985), the court of appeals affirmed the Commission’s decision denying benefits to a 40-year-old man who suffered a back injury. The doctors gave him a 5% to 10% impairment rating, and the Commission found that he was actually 30% impaired based on the other factors. In Buford, the court of appeals reversed the Commission’s denial of benefits for a 40-year-old high school graduate who sustained herniated discs in his back and who underwent three surgeries. These cases reveal that no factor, in and of itself, is determinative of the issue, but instead that all the factors, considered in the overall case, must be considered. It is clear from the Commission’s decision, which adopted the ALJ’s decision, that all of these factors were not considered and that the determinations made as noted above were inconsistent with each other. As such, we have determined that taking all of these factors into consideration, Patterson falls within the odd-lot category of workers.

This does not end the inquiry, however. Because Patterson has established that she falls within the odd-lot category of workers, the burden now shifts to ADH to establish that “some kind of suitable work is regularly and continuously available” to Patterson and that Patterson received a bona fide offer of employment at wages equal to or greater than her average weekly wage at the time of her injury. Nelson, 57 Ark. App. at 38. The Commission and the court of appeals found that ADH did not meet this requirement, but because Patterson did not establish her entitlement to odd-lot consideration, the issue was moot. However, ADH argues on appeal that it, in fact, continued to make employment available to Patterson and went so far as to offer many accommodations so that Patterson could work. These accommodations included providing a cot and allowing a flex-time schedule to allow for days off when Patterson was physically unable to perform the job. On the other hand, ADH presented no evidence, and in fact relies only on Patterson’s testimony, that such work was available. According to Patterson’s testimony, while her supervisor told her that they would accommodate her, they would only allow her to return to work if Dr. Moore approved it. Patterson then testified that Dr. Moore told her not to return to work.

The first consideration of importance in this inquiry is not whether she could return to work for her employer in some limited capacity, but whether her “overall job prospects are negligible.” Haile, 267 Ark. at 736. In other words, the consideration does not completely depend on whether there is a particular job available in some form or fashion, but whether the level of permanent disability will affect the claimant’s overall prospect for employmentTd.Furthermore, based on Patterson’s stated limitations and the fact that she was an hourly employee of ADH, ADH provided no evidence that she could return to a job making equal or greater pay than before her injury. ADH’s argument that it continued to make work available as evidenced through Patterson’s testimony does not meet ADH’s burden of proof. There is no proof regarding what type of job ADH was offering or whether Patterson would be making the same or greater average weekly wage than before the injury. Furthermore, ADH’s alleged offer of employment was apparently predicated on Dr. Moore’s approval based on Patterson’s limitations. According to Patterson, Dr. Moore did not approve her return to work, and ADH offers no proof to the contrary that Patterson was able to perform a job at the department. Consequently, the Commission’s determination that the preponderance of the evidence fails to show that Patterson received a bona fide offer of employment or that she could return to the work force in any meaningful manner is affirmed.

Finally, ADH argues that the Second Injury Trust Fund should have been liable for payment of some benefits in this case due to the pre-existing medical diagnosis of Sjogren’s Syndrome. InMid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), the Arkansas Supreme Court set forth a tripartite test for Second Injury Fund liability. The test requires that:

1. The employee must have suffered a compensable injury at his present place of employment.
2. Prior to that injury the employee must have had a permanent partial disability or impairment.
3. The disability or impairment must have combined with the recent compensable injury to produce the current disability status.

Mid-State, 295 Ark. at 5. As the Second Injury Fund argues, there is no evidence that Patterson’s Sjogren’s Syndrome combined with her work injury to produce her current disability status. In fact, neither of her treating physicians, Dr. Cheek or Dr. Lipsmeyer, attributed her inability to work to the syndrome. Dr. Cheek indicated that perhaps five percent of her disability was attributed to the syndrome, but that this percentage did not affect her ability to work. Dr. Lipsmeyer agreed, but added that the five percent only referred to the swollen glands, dry eyes and mouth, and pain in her hands, and that the syndrome did not affect Patterson’s central nervous system. Both doctors agreed that medication controlled the condition. Patterson herself testified that prior to her 1991 injury, she missed no work because of the syndrome, and that it was maintained with medication.

Based on these findings, we agree with the Commission that the record failed to show that there was a combination of the effects of Patterson’s compensable work-related injury and with any preexisting disability or impairment to yield greater disability than that arising from the back injury alone. Therefore, the Second Injury Fund is not liable in this case.

Reversed in part; affirmed in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ken JAMESON v. The Honorable J. Leon JOHNSON, Circuit Judge of Pulaski County, and Gil Landers
    00-1342
    33 S.W.3d 140
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Cross, Gunter, Witherspoon, & Galchus, P.C., by: M. Stephen Bingham, for petitioner.

      Josh E. McHughes, for respondent.
   PER CURIAM.

Petitioner Ken Jameson petitions this court for a Writ of Mandamus to Pulaski County Circuit Judge Leon Johnson, directing that he enter an order requiring Gil Landers to post a sufficient supersedeas bond pending appeal. The facts leading up to this dispute are as follows. Jameson obtained a $13,434.75 judgment against Landers in Judge Johnson’s court. Mr. Landers subsequendy filed a notice of appeal with regard to the judgment, but failed to post a supersedeas bond as required by Ark. R. App. P. — Civ. 8(c). Judge Johnson entered an order on August 31, 2000, staying the judgment once Landers posted $13,434.75 with the court clerk. This order was then vacated by an order dated October 9, that required Landers to post $15,500. On November 3, 2000, however, Judge Johnson entered a new order vacating the October 9 order, and reinstating his order of August 31.

Jameson now argues that the trial court erred in allowing Landers to post an amount equal to the judgment without interest, because Rule 8(c) requires the posting of a supersedeas bond that “shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal.” Jameson argues that a bond should be posted that is sufficient to cover all costs and damages that may result from the appeal, including any interest that may accrue. Landers asserts that Jameson waived any right to interest because he never raised the issue below. This argument is without merit.

Postjudgment interest is governed by Ark. Code Ann. § 16 — 65-114(a) (1987), which states:

Interest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, whichever is greater, and on any other judgment at ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution, Article 19, § 13, as amended.

Mindful of this statutory provision, this court has held that interest accrues on any judgment, unless the judgment expressly excludes the payment of interest. See Estate of Otto v. Estate of Fair, 316 Ark. 674, 875 S.W.2d 487 (1994); Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978). Moreover, while this court has never interpreted the specific language of Rule 8(c), the issue has been addressed by the Arkansas Court of Appeals in Schramm v. Piazza, 53 Ark. App. 99, 918 S.W.2d 733 (1996). There, the court of appeals held that the provision for “all costs and damages” necessarily includes any interest on a judgment and all costs and damages that may accrue pending an appeal. We find this interpretation persuasive. Accordingly, we grant the writ and direct Judge Johnson to enter an order staying the judgment only upon the posting of a bond sufficient to cover all costs and damages, including interest.


text:
    Clyde JOHNSON v. STATE of Arkansas
    CR 00-815
    33 S.W.3d 139
    Supreme Court of Arkansas
    Opinion delivered December 14, 2000

      Davis Loftin, for appellant.
    No response.
   PER CURIAM.

On January 31, 1991, judgment was entered in the Circuit Court of Crittenden County which reflected that Clyde Johnson had been found guilty by a jury of aggravated robbery and sentenced as a habitual offender to fifty years’ imprisonment. Mr. Johnson’s appointed attorney, Davis Loftin, filed a timely notice of appeal from the judgment on February 28, 1991. The appeal was not perfected, and Mr. Johnson sought by pro se motion to proceed with a belated appeal of the judgment, which we granted on November 16, 2000. See Johnson v State, 342 Ark. 709, 30 S.W.3d 715 (2000) (per curiam). In the same per curiam, we issued an order for Mr. Loftin to appear before this court and show cause why he should not be held in contempt for failing to perfect the Johnson appeal.

On December 7, 2000, Mr. Loftin appeared before this court and pled guilty to contempt of court. He offered in mitigation that Mr. Johnson never told him that he wanted to pursue the appeal. Mr. Loftin recognized his obligation to perfect the appeal but did not believe that Mr. Johnson wanted him to appeal.

We hold that Mr. Loftin is in contempt of court. We note that this is not the first time that Mr. Loftin has been held in contempt by this court for failure to perfect an appeal. See Jones v. State, 318 Ark. 44, 883 S.W.2d 452 (1994) (per curiam) (fined $250 for contempt). We further note that neither in this case nor in Jones v. State, supra, did Mr. Loftin move to withdraw as counsel. Therefore, he remained attorney of record and was responsible for representing Mr. Johnson in his appeal. See Ark. R. App. P.—Crim. 16.

Based on this case and Mr. Loftin’s past history of failing to lodge records after filing notices of appeal, we fine him $500.

A copy of this opinion will be sent to the Committee on Professional Conduct.


text:
    SLOTS, INC. v. STATE of Arkansas
    00-95
    32 S.W.3d 755
    Supreme Court of Arkansas
    Opinion delivered December 7, 2000
    [Substituted Opinion delivered December 14, 2000]

      Appellant, no response.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   PER CURIAM.

On December 7, 2000, this court granted the motion by the State of Arkansas, appellee, by and through its attorney, James R. Gowen, Jr., for an extension of time to file its response to appellant, Slots, Inc.’s, petition for rehearing. On review, we consider the State’s motion to be appropriate and timely under Ark. S. Ct. R. 2-3. On this court’s own motion, we vacate our December 7, 2000 per curiam opinion and substitute this opinion in its stead.


author: WH. “Dub” Arnold, Chief Justice. WH. “Dub” Arnold, Chief Justice.

text:
    Jack ESTRIDGE, Employee v. WASTE MANAGEMENT; Transportation Insurance Company; and Second Injury Fund
    00-662
    33 S.W.3d 167
    Supreme Court of Arkansas
    Opinion delivered December 15, 2000

      Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas, Jr., for appellant.

      Wright, Lindsey & Jennings LLP, by: Judy Robinson Wilber and J. Andrew Vines, for appellee Waste Management.
   WH. “Dub” Arnold, Chief Justice.

Appellant Jack Est-ridge appealed the denial of benefits by the Workers’ Compensation Commission regarding an injury to his back that he alleged occurred while in the employ of appellee Waste Management. The administrative law judge had determined that appellant sustained a compensable aggravation to his preexisting degenerative condition for which he was entitled to benefits. After a reversal of that decision by the Commission, appellant appealed to the Arkansas Court of Appeals. The Court of Appeals affirmed the Commission’s denial of benefits in an unpublished decision, CA 99-1208.

Appellant then petitioned this Court for review. Appellant contends that the decision by the Court of Appeals is in conflict with prior case law, and is therefore in error. We granted appellant’s petition for review pursuant to Ark. Sup. Ct. R. l-2(e). The issue on appeal is whether appellant proved that he sustained a compensable injury. We hold that he did and, therefore, reverse the Full Commission’s decision to deny benefits, as well as the Court of Appeals decision to affirm the Commission.

Standard of Review

Upon a petition for review, we consider a case as though it had been originally filed in this Court. Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328 (2000); Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000);White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a fight most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Id.; Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

Facts and Procedural History

The evidence presented by the parties revealed the following events. Appellant, who at the time was in his mid-forties, reported a back injury after carrying and nearly dropping a railroad crosstie while on the job on September 28, 1994. He reported the incident to appellee Waste Management and was referred to Dr. Owens, who diagnosed appellant with a low back strain and radicular pain. This course of events is not in dispute.

Dr. Owens documented no objective medical findings to support this diagnosis, but he prescribed Valium “as needed for muscle spasms.” Radiographic studies revealed mild to moderate degenerative and hypertrophic changes. While no mention was made by the radiologist, Dr. Owens noted that the x-ray showed a straightening of the lordotic curve. Appellant was returned to work light duty, but an MRI was subsequently ordered when his pain failed to subside. The MRI report stated that appellant appeared to have herniated discs at L4-5 and L5-S1.

A referral to neurosurgeon Dr. Mason followed, whose diagnostic tests revealed the same suspected herniations. Dr. Mason operated on appellant and, upon viewing appellant’s spine, discovered that appellant suffered from spondylosis and facet hypertrophy but did not have herniated discs. After surgery, Dr. Mason assigned appellant an 11 percent permanent anatomical impairment rating to the body as a whole, attributing the rating to surgical changes and degenerative disc problems. This rating was derived from the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

Dr. Mason was asked during a deposition whether appellant’s condition was caused by his work, to which he stated that he could not so opine within a reasonable degree of medical certainty; he could only go by the patient’s history that he developed pain after the lifting injury. When asked if the work incident worsened his back condition, if it was preexisting, Dr. Mason replied that there was no way to know without comparative diagnostic studies prior to the crosstie-carrying event. Fie also stated that the development of spondylosis and face hypertrophy was usually a slow process causing degenerative changes. Fie said, “It’s impossible to develop these changes in a short period of time.” Dr. Mason further stated, though, that the lifting incident caused more than 50 percent of appellant’s problem that necessitated treatment.

The insurance carrier directed appellant to Dr. Saer at the Spine Clinic who opined that his symptoms were most likely related to his persistent degenerative disc disease. Dr. Saer recommended that appellant undergo a lumbar fusion to address the degenerative condition.

Appellant testified that he had worked as a manual laborer since he was about sixteen years old, including working on oil rigs and skidding logs. As a Vietnam veteran, he had undergone treatment for post-traumatic-stress disorder (“PTSD”) and mood swings, and he testified that his back condition made him more susceptible to depression since he could not work. At the time of the hearing, appellant was still being medicated for conditions other than his back, all administered by the VA. Hospital, and had been qualified for total disability due to his PTSD. Appellant admitted in his testimony that he had been treated for muscle spasms after pulling muscles in his back before he began working for Waste Management. Also, he presented to the Medical Center of South Arkansas on July 31, 1993, more than a year prior to the work incident, and reported that he had “chronic back problems.” The Commission denied appellant benefits, finding that there was lacking any objective findings to support an injury while at work.

Merits of the Case

It is clear that muscle spasms can constitute objective medical findings to support compensability. See Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999); University of Arkansas for Medical Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997). Muscle spasms detected by someone other than a physician, such as a physical therapist, can be sufficient as well, since this is a perception by someone other than the claimant. See Continental Express, supra. The Commission concluded, however, that there was no observation of muscle spasm in appellant because the prescription for Valium “as needed for muscle spasm” was a direction to appellant and not a finding of the presence of muscle spasm. Further, the Commission deemed the treating physician’s finding of a straightening of the lordotic curve unreliable because the radiologist did not note that finding in his report.

It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Hope Livestock Auction Company v. Knighton, 67 Ark. App. 165, 992 S.W.2d 826 (1999); Sapp v. Phelps Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998). However, it is also well settled that once an injury is identified by specific incident and time, it is not necessary that the claimant prove that the work, rather than the injury, was a major cause of the disability and need for treatment. See Williford v. City of North Little Rock, 62 Ark. App. 198, 969 S.W.2d 687 (1998); Second Injury Fund v. Stevens, 62 Ark. App. 255, 970 S.W.2d 331 (1998); Medlin v. Wal-Mart Stores, 64 Ark. App. 17, 977 S.W.2d 239 (1998); Farmland v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). Further, where there is little or no medical evidence to the contrary, it is error to deny compensability where reasonable minds cannot differ. See Crudup v. Regal Ware, Inc., 69 Ark. App. 206, 11 S.W.3d 567 (2000); Lloyd v. UPS, 69 Ark. App. 92, 929 S.W.2d 564 (2000).

Appellant contends that the Commission erred in making a medical finding that because a radiologist did not mention straightening of the lordotic curve, no straightening was present. We agree. Appellant’s treating physician found straightening of the curve in the spine, which is a sign that is normally associated with muscle spasm in the straightened area. This finding is objective evidence of injury with no evidence to the contrary. Appellee Waste Management asserts that the issue is one of causal connection between the lifting at work and the findings at surgery and that no causal connection was established. We disagree.

It was undisputed that appellant sustained an accidental injury at work and was diagnosed initially with back strain and received medication. What is disputed is whether appellant presented proof of objective medical evidence and whether there was a causal connection between the injury and the medical treatment. We hold that appellant did present proof of objective medical evidence and that there was a causal connection between the injury and the medical treatment, for the following reasons.

First, he was indisputably diagnosed with back strain for which he received medication after the crosstie incident. The medication was directed “as needed for muscle spasm” which the Commission dismissed as a direction to appellant rather than a medical finding. We find the Commission’s dismissal of this fact to be absurd. A doctor would not prescribe medication directed to be taken “as needed for muscle spasm” if he did not believe muscle spasms were existent. Notwithstanding, when the medication did not relieve his pain, an MRI was performed that showed possible herniated discs at L4-5 and L5-S1. He was then referred to a neurosurgeon whose tests also led him to believe that there were herniated discs present. It was only during surgery that the diagnosis of herniations was ehminated. Following surgery, the neurosurgeon attributed 50 percent of appellant’s need for treatment to the crosstie accident.

Second, under Ark. Code Ann. § 11-9-102 (Supp. 1999), two types of injuries are recognized: accidental and gradual onset. An accidental injury is defined as caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i). For an accidental injury, it is not necessary that the claimant prove that the injury is the major cause of the disability or need for treatment. While it is undisputed that appellant has degenerative disease, the accidental injury at work either caused or precipitated the need for medication and surgery that is clear. The finding of a straightened lumbar-spine is an objective medical finding and, as noted above, this is a sign that is normally associated with muscle spasm in the straightened area. Further, the diagnosis, albeit wrong, that he had herniated discs caused surgery to be performed. Therefore, a causal connection did exist between the lifting at work and the findings at surgery.

The burden on appellant to prove a compensable injury was by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i). Based upon this burden of proof, as well as our standard of review of the Commission’s decision, we are convinced that fair-minded persons presented with these same facts could not have reached the same conclusion as the Commission. For these reasons, we hereby reverse the Full Commission’s decision to deny benefits to Mr. Estridge. Likewise, the Court of Appeals decision, affirming the Full Commission, is hereby reversed.

Reversed.

Brown, Imber, and Smith, JJ., dissent.

WH. “Dub” Arnold, Chief Justice.

dissenting. There is no doubt that substantial evidence exists to support the Workers’ Compensation Commission’s decision in this case. Contrary to Est-ridge’s representation to his physicians that he had had no prior back problems, this was not true. He had a history of “chronic back problems,” as the majority admits, and had been treated several times for pulled muscles and muscle spasms prior to the crosstie incident. Next, as the majority again admits, though Estridge underwent surgery as the result of an initial diagnosis of herniated discs caused by lifting the crosstie, it developed during the surgery that the real cause of his back problems was a pre-existing degenerative disease. Thus, you have proof positive that Estridge had suffered from chronic back problems prior to the incident and that his ailment was not due to herniation at all but to a degenerative condition.

During deposition, Dr. Zachary Mason, Estridge’s surgeon, was asked whether Estridge’s degenerative condition was caused by the lifting incident. He answered:

No, I can’t state that within a reasonable degree of medical certainty. I can only go by the patient’s history. That is, he developed pain after the lifting incident.

Nor could he state within a reasonable degree of medical certainty that the facet hypertrophy became worse after the lifting of the crosstie. When Dr. Mason later testified that the lifting incident caused more than fifty percent of Estridge’s back problem, that opinion appeared to be based on a disc injury which did not exist.

We are left then with the prescription of Dr. Douglas Owens for Valium “as needed for muscle spasm” as the sole basis for reversing the Commission. A prescription does not equate to medical findings or evidence of a causal connection between injury and medical treatment. There is no proof that Dr. Owens observed or found muscle spasm following the lifting. And, as already stated, Estridge had a pre-existing history of back problems and muscle spasms.

Our standard of review in Workers’ Compensation Commission cases is well established. This court views the evidence in the light most favorable to the Commission’s decision and affirms when that decision is supported by substantial evidence. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.2d 706 (2000). Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. Stated differently, the issue on appeal is not whether the reviewing court might have reached a different result from that of the Commission or whether the evidence would have supported a contrary finding. If reasonable minds could reach the Commission’s conclusion, the court must affirm its decision. Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 26 S.W.3d 777 (2000).

In a case such as the one at hand, where the Commission denied benefits because the claimant failed to meet his burden of proof, the substantial evidence standard of review requires us to affirm if the Commission’s decision presents a substantial basis for denial of relief. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Furthermore, it is within the Commission’s sole discretion to determine the credibility of each witness and the weight to be given to their testimony. Crudup, 341 Ark. at 809, 20 S.W.3d at 904. As stated by the majority, it is well settled that the Commission has the authority to accept or reject medical opinion and also has the authority to determine the opinion’s medical soundness and probative force. See Tucker, 342 Ark. 511, 29 S.W.3d 706 (court stated that Commission is not required to believe the testimony of any witness and may accept and translate into findings of fact only those portions of testimony it deems worthy of belief); see also Hope v. Livestock Auction Company v. Kingston, 67 Ark. App. 165, 992 S.W.2d 826 (1999).

The point is that the Commission’s decision was supported by substantial evidence, and the Commission weighs the credibility of witnesses — not the judiciary. Were I on the Commission, I might have decided this case differently, but our standard of review is whether substantial evidence supports the Commission’s decision. In my opinion, it does.

I would affirm the Commission.

Imber, J„ and SMITH, J„ join.


author: ANNABELLE Clinton Imber, Justice. ROBERT L. Brown, Justice,

text:
    STATE of Arkansas v. Ryan McCORMACK
    CR 00-716
    34 S.W.3d 735
    Supreme Court of Arkansas
    Opinion delivered December 15, 2000

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellant.

      Perroni & James Law Firm, by: Samuel A. Perroni, for appellee.
   ANNABELLE Clinton Imber, Justice.

This is an appeal by the State from an order by the Pulaski County Circuit Court acquitting Officer Ryan McCormack of aggravated assault. For its only assignment of error, the State argues that the circuit court erred by refusing to instruct the jury on the lesser-included offenses of assault in the first, second, and third degrees. Officer McCormack contends that this case is not properly appealable by the State under Rule 3 of the Arkansas Rules of Appellate Procedure — Criminal. We agree and dismiss the State’s appeal.

The aggravated assault charge against Officer McCormack, an officer with the Little Rock Police Department, arose from an incident that occurred on May 2, 1999. On that day, it is undisputed that fourteen-year-old Jordan Williams and two of his friends were playing on a trampoline in Jordan’s fenced back yard in Maumelle. While doing so, the boys began throwing small twigs, bark, mulch, and ice over the fence at vehicles traveling along Trevino Road. Some of the objects hurled by the boys hit Officer McCormack’s truck as it passed by the fence on Trevino Road. Officer McCormack was off-duty and not in uniform at the time, but he was armed with a forty-caliber “Baby Glock” pistol.

Officer McCormack testified that he and several passengers were proceeding along Trevino Road in his truck when he saw objects that he believed to be rocks and bark flying across the road, some of which struck his truck. He immediately turned his truck around, pulled to the side of the road, and exited the truck. At that point, he climbed onto the fence and saw the boys running away. According to his own testimony, he then identified himself as a police officer and asked the boys to stop running. When they continued to run, Officer McCormack said that he climbed over the fence, entered the back yard, and “tried to go apprehend these people.” His brother, who was a passenger in the truck, also climbed the fence. Upon entering the back yard, Officer McCormack did not see anyone in the yard; but, as he was about to climb back over the fence, he saw someone lying on the ground, who later turned out to be Jordan. According to Officer McCormack, he could not see Jordan’s hands because Jordan was lying face down with his hands underneath him in his crotch and stomach area. For that reason, he became concerned for his safety and his brother’s safety and proceeded to identify himself as a police officer before ordering Jordan to show his hands. Officer McCormack testified that he yelled the instruction “let me see your hands” three times, and as he yelled the instruction the third time, he pulled his weapon from his holster and took it in his hands “positioned to the ground.” A few seconds later, Officer McCormack testified that Jordan showed his hands by putting them in the air, whereupon he reholstered his weapon, approached Jordan, and patted him down. He then pulled Jordan from the ground, walked him over to the house, and ordered him to go inside and get his mother.

Jordan testified that when Officer McCormack put on his brakes and drove back to the fence, he hid in the yard while his friends, Steven Price and Brandon Boswell, ran inside the house. He also testified that Officer McCormack climbed over the fence, and, upon noticing him hiding in the yard, “drew his weapon and pointed it at me[.]” At that point, Jordan stated that he fell to the ground from his crouching position and lay there face down with his hands over his head. Officer McCormack then approached him, patted him down, and identified himself as a police officer for the first time.

Brandon Boswell testified that he and Steven Price ran into the house when Officer McCormack approached the fence. Once inside, he stated that he looked out the window and saw that Officer McCormack had pulled his gun and was pointing it at Jordan’s head. Steven Price also testified that Officer McCormack pulled his gun and pointed it at Jordan.

Officer McCormack was eventually charged by felony information with aggravated assault. At trial, following the presentation of all proof in the case, the State proffered instructions to the trial court for assault in the first, second, and third degrees as lesser-included offenses of aggravated assault. However, the only crime with respect to which the jury was instructed was aggravated assault. The jury returned a verdict of not guilty.

The threshold issue in this case is whether the State has properly brought this appeal under Ark. R. App. P.—Crim. 3. State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000). Officer McCormack asserts that this case is not appealable by the State because it does not raise an issue “important to the correct and uniform administration of the criminal law,” as is required pursuant to Ark. R. App. P. — Crim. 3(c). According to Officer McCormack, the State merely alleges error in the trial court’s application of the law to the facts of this case.

In criminal cases, we accept appeals by the State in limited circumstances:

There is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3.

State v. Guthrie, 341 Ark. at 628, 19 S.W.2d at 13. In that case, we quoted the following language from State v. Stephenson as our established law on the subject:

We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916).

State v. Stephenson, 330 Ark. 594, 595, 955 S.W.2d 518, 519 (1997). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. Guthrie, supra; State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997) (“Because the trial court’s decision in the present case necessarily turned on whether appellee in fact abandoned the marijuana, we must conclude that the resolution of this issue does not require an interpretation of our criminal rules with widespread ramifications.”); State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994) (“The decision of the trial judge which we are asked to review turned on the facts of the case to such an extent that the correct and uniform administration of the law could not be at issue.”); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992) (“Here, the State questions the trial court’s application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.”). This court will not even accept mixed questions of law and fact on appeal by the State. State v. Gray, supra; State v. Edwards, supra; State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997) (“Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.”). Likewise, where an appeal raises the issue of application, not interpretation, of a statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993). See also State v. Edwards, supra. Accordingly, we must determine whether the issue presented by the State for review is merely an issue of application of a statutory provision, as Officer McCormack contends, or an issue of statutory interpretation, as the State contends.

In its opening brief, the State asserts that a rational basis existed for giving all three of the proffered jury instructions pursuant to Ark. Code Ann. § 5-1-110(c) (Repl. 1997). The State also reviews the applicable law whereby, pursuant to Ark. Code Ann. § 5-1-110(c), the trial court is required to instruct the jury on a lesser-included offense when a “rational basis” exists that a defendant may be acquitted of the charged crime but convicted on a lesser-included offense. The State then proceeds to discuss all of the evidence presented at trial that purportedly tends to show the required rational basis. In other words, the State’s argument is based entirely on the application of the law to the facts and in no way raises an issue of statutory interpretation. In State v. Jones, this court stated that we only take appeals that are narrow in scope “and involve the interpretation of the law.” 321 Ark. at 456, 903 S.W.2d at 173 (1995). There, the State argued, just as it does here, that it was entitled to jury instructions on lesser-included offenses, “pursuant to section 5-1-110(c), given the proof it presented in this case.” Id., 321 Ark. at 455, 903 S.W.2d at 172. This court refused to address the ultimate issue of “whether application of section 5-1-110(c) to the facts of this case would have entitled the state to the proffered instructions.” Id., 321 Ark. at 456, 903 S.W.2d at 173. We further stated:

Therefore, to the extent this appeal merely raises an issue of the application of section 5-l-110(c) to the facts of this case, rather than its interpretation, the appeal does not involve the correct and uniform administration of the criminal law and is not addressed by this court.

Id., 321 Ark. at 457, 903 S.W.2d at 173. For those same reasons, we do not address the ultimate issue of whether application of section 5-1-110.(c) to the facts of the instant case would entitle the State to the proffered instructions.

The State argues in its reply brief that the trial court misinterpreted Ark. Code Ann. § 5 — 1—110(c). Specifically, the State asserts that the trial court refused to give the proffered instructions, not because the State failed to provide a rational basis for doing so, but because Officer McCormack denied the charges. Thus, we are asked to determine, as we did in State v. Jones, that the trial court based its ruling on an incorrect rationale. We decline, however, to reach the merits of this argument because the State raises it for the first time in the reply brief. An argument cannot be raised for the first time in a reply brief. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).

As stated above, the opening brief by the State focuses exclusively upon the application of section 5-1-110(c) to the evidence presented at trial and argues that a rational basis existed for giving all of the proffered instructions. Pursuant to our holding in Jones v. State, the State’s appeal as argued in its original brief merely raises the issue of the application, not interpretation, of section 5-1-110(c) to the facts of this case. Thus, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State.

In the reply brief, the State attempts to change its argument to one alleging error based upon the trial court’s faulty reasoning. In that regard, the State makes no reference in its original brief to the trial court’s rationale for refusing to give the proffered instructions. Moreover, the State initially relies upon the following point of error in its original brief: “The trial court erred by refusing to instruct the jury on the lesser-included offenses of assault in the first degree, assault in the second degree, and assault in the third degree.” However, the State relies upon a different point of error in its reply brief: “The trial court misinterpreted Ark. Code Ann. § 5-l-110(c).” Under these circumstances, we conclude that the State does not contend in its original brief that the trial court misinterpreted the law. We must therefore treat that argument as waived and abandoned by the State. Jordan v. State, supra.

The State’s argument in its original brief merely raises the issue of application, not interpretation, of a statutory provision. Such an argument is not a proper basis for an appeal by the State, so the appeal must be dismissed. Jones v. State, supra.

Appeal dismissed.

Arnold, C.J., Glaze and Brown, JJ„ dissent.

ROBERT L. Brown, Justice,

dissenting. This court should take the State’s appeal when the issue raised is “important to the correct and uniform administration of criminal law.” Ark. R. App. P. — Crim. 3. Here, the issue raised by the State, as I see it, is whether a trial judge is required to give instructions of the lesser included offenses requested by the State when a rational basis exists in the evidence for doing so. That is an issue that cries for resolution and is patently one of universal significance. Indeed, a state statute requires giving instructions on lesser included offenses, where a rational basis exists for doing so:

(c) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser included offense.

Ark. Code Ann. § 5-1-110(c) (Repl. 1997); see also State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Indeed, in Jones this court took a state appeal and declared error where the trial court refused to give instructions on lesser included offenses when there was evidence that justified doing so.

The majority concludes that this issue turns on its facts and, thus, does not meet the requirements of Ark. R. App. P. — Crim. 3. But that misses the point. The issue respecting the uniform administration of criminal law is whether those instructions are required to be given, assuming the requisite evidence exists for giving them.

The fallacy in the majority’s theory is that this issue raised by the State can never be addressed because there will always have to be an initial “factual” determination by the judge of whether a rational basis exists for the instructions on lesser included offenses. That position effectively precludes the State from ever having this thorny legal issue resolved.

I would reach the merits of the issue raised, and for that reason, I respectfully dissent.

Arnold, C.J., and Glaze, J., join.

       Our law is well settled that the State is not permitted to appeal when the sole issue is the sufficiency of the evidence of the defendant’s guilt because such cases, although they present questions of law, are determined by the varying state of facts in each case, and are therefore not important to the uniform administration of the criminal law. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997) (citing State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992); State v. Dixon, 209 Ark. 155, 189 S.W.2d 787 (1945); and State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916)). When the issue presented for appeal by the State turns entirely upon the facts, we will not hear the appeal.

       Contrary to the dissent’s assertion, in Jones this court did not address the issue of whether there was evidence that justified giving the requested instructions.


author: Ray THORNTON, Justice. WH. “Dub” Arnold, Chief Justice,

text:
    STATE of Arkansas v. Bryan Ray VAUGHAN
    CR 00-724
    33 S.W.3d 512
    Supreme Court of Arkansas
    Opinion delivered December 15, 2000

      Mark Pryor, Att’y Gen., by: Joseph C. Cordi, Jr., Ass’t Att’y Gen., for appellant.

      James & Carter PLC, for appellee.
   Ray THORNTON, Justice.

The determinative issue in this appeal is whether the circuit court had jurisdiction on April 10, 2000, to consider Vaughan’s speedy-trial motion. Appellee contends that, because he did not have notice of the April 8, 1997, hearing, and order dismissing his appeal from municipal court, there was no limit to the time in which he could move to set aside the order of the trial court dismissing that appeal. He further contends that the trial court had jurisdiction to set aside the dismissal and reinstate the appeal at any time, even by an order filed after the trial judge no longer served as judge of the circuit court having jurisdiction. We disagree, and we hold that the trial court was without jurisdiction to consider a speedy-trial issue stemming from a void order reinstating his appeal.

On October 3, 1996, Bryan Ray Vaughan pleaded guilty in Bryant Municipal Court to second-offense driving while intoxicated and to carrying a weapon. For the DWI offense, the municipal court sentenced him to ten days in jail, fined him $950.00 plus court costs, ordered him to attend DWI school, and suspended his driver’s license for one year. Vaughan timely appealed his conviction and sentence to circuit court on October 22, 1996, and contemporaneously with the perfection of the appeal, a trial date was set for April 8, 1997. Vaughan did not appear for his de novo trial on April 8, 1997, and the circuit court, with the Honorable Phillip Shirron presiding, dismissed Vaughan’s appeal and remanded the case to the municipal court.

Vaughan’s counsel did not receive notice of the April 8, 1997, trial date, or the remand to municipal court, until March 27, 1998. More than six months after receiving notice, and eighteen months after the April 8, 1997, order dismissing his appeal, Vaughan filed on October 9, 1998, a motion to reinstate his appeal, alleging that neither he nor his client received notice of the April 8, 1997, trial date. On December 28, 1998, Judge Shirron signed an order purporting to grant Vaughan’s motion, but the order was not filed until January 6, 1999, after Judge Shirron was transferred to a different division.

Vaughan then waited an additional one year before he filed a speedy-trial motion to dismiss the charges, and the State filed a response, arguing that the case was not properly before the circuit court, over which the Honorable Grisham Phillips was then presiding. After a hearing on the matter, Judge Phillips granted Vaughan’s motion to dismiss the charges on the basis of our requirement for a speedy trial. Judge Phillips found that Vaughan’s appeal had been reinstated on January 6, 1999, and that Judge Shirron had subject-matter jurisdiction over the matter and had the authority to reinstate the appeal based upon the lack of notice to Vaughan and his counsel of the April 8, 1997, trial date. It is from this order that the State brings its appeal.

With regard to the trial court’s jurisdiction to decide the speedy trial issue, that issue is one that can be raised at any time, even for the first time on appeal. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). The order of the circuit court reinstating the appeal was void because it was entered after Judge Shirron was no longer serving as the circuit judge. We have held that an order is not entered until it is filed. Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983) (per curiam). In the present case, Judge Shirron’s order was not entered until January 6, 1999, and by that time, Judge Shirron was no longer a circuit judge in Saline County Circuit Court.

Article 7, section 13, of the Constitution of Arkansas provides that a circuit judge “shall reside in and be a conservator of the peace within the circuit for which he shall have been elected.” Id. In accordance with these provisions of our constitution, Ark. Code Ann. § 16-88-105 (1987) provides that circuit courts shall have jurisdiction to try criminal offenses within the bounds of the geographical judicial district: “The local jurisdiction of circuit courts . . . shall be of offenses committed within the respective counties in which they are held.” Id. Similarly, Ark. Code Ann. § 16-13-210 (1987) provides that a circuit judge who is “physically present in the geographical area of the judicial district which he serves as judge may hear, adjudicate, or render any appropriate order with respect to, any cause or matter pending in any circuit court over which he presides[.]” Id. In sum, our constitution and applicable statutes provide that a circuit judge may act in a criminal case only when he is within the geographical area of the judicial district in which the charge is filed, and we have so held for over 150 years. See Sexson v. Municipal Court of Springdale, 312 Ark. 261, 849 S.W.2d 468 (1993); Auditor v. Davies, 2 Ark. 494 (1840), Dunn v. State, 2 Ark. 229 (1840).

“Jurisdiction” is the power of the court to decide cases and presupposes control over the subject matter and the parties. Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). Circuit judges have authority to preside only over cases pending in the judicial district in which they serve. Id. Judge Shirron did not have jurisdictional authority over Vaughan’s case after he left that judicial district. An order executed by a person lacking authority to act as judge is facially invalid. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993). Judge Shirron’s order dated January 6, 1999, was invalid because he did not have the authority to act as circuit judge in Saline County Circuit Court when it was entered.

Therefore, we hold that Judge Phillips did not have jurisdiction over the appeal, and did not have authority to grant Vaughan’s motion to dismiss. When the court in which the action is filed has no jurisdiction, the appellate court should dismiss the whole case for want of jurisdiction. First Pyramid Life Ins. Co. of America v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970). The circuit court’s judgment granting relief on the basis of a speedy trial violation is dismissed for want of jurisdiction.

Reversed and dismissed.

Arnold, C.J., and Corbin, J., concur.

WH. “Dub” Arnold, Chief Justice,

concurring. I agree with the majority’s holding that the trial court did not have jurisdiction to decide the speedy-trial issue. I write separately to note that it is the duty of the attorney to remain abreast of the progress of a case in which he or she is involved. Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989) (stating that an attorney is charged with this duty in criminal contempt matters). See also Jetton v. Fawcett, 264 Ark. 69, 568 S.W.2d 42 (1978).

Corbin, J., joins this concurrence.


author: Annabelle Clinton Imber, Justice.

text:
    Molly M. HOWELL v. SCROLL TECHNOLOGIES
    00-725
    35 S.W.3d 800
    Supreme Court of Arkansas
    Opinion delivered January 4, 2001

      Lane, Muse, Arman & Pullen by: Jon B. Gann, for appellant.
    One brief only.
   Annabelle Clinton Imber, Justice.

Molly Maurine Howell appeals the decision of the Arkansas Workers’ Compensation Commission denying her benefits for claimed occupational disease. Ms. Howell argues that there is no substantial basis to support the denial of benefits. We agree and reverse for the award of benefits.

Ms. Howell began working for Scroll Technologies on September 30, 1996. She was forty-seven years old at the time, had never smoked, was in generally good health, and had never been hospitalized. Ms. Howell worked ten-hour shifts four days a week, operating three machines on “operation 30.” When the doors of these machines automatically opened, Ms. Howell placed a piece of metal called a scroll into each machine. The doors then closed automatically and the machine ground the scroll to make it shiny. Inside the Op30 machines were various smaller parts involved in the grinding process, one of which was a piece of metal labeled “Kennametal” that was inserted onto a rod inside of the Op30 machine to help grind the scrolls. The Kennametal parts in each machine required sharpening five times a day as a result of wear during the grinding process. Ms. Howell did not sharpen the parts herself; she removed them from the machine, carried them to another department for sharpening and then replaced them in the machine. A coolant was mixed with the parts in the machine to prevent fire from the heat generated by the grinding of metal. When the grinding was complete, the doors opened again automatically and Ms. Howell removed the scroll from the machine and inserted another. She repeated this process on a machine approximately 300 times during the course of each shift, working simultaneously on three different machines and inserting approximately 700 to 900 scrolls into the machines each shift. Every time the machine doors opened, Ms. Howell testified that she was “hit in the face” by a malodorous green mist that burned her chest and throat. The mist appeared to Ms. Howell to be comprised of the “grinding stuff’ and the coolant.

In March of 1997, Ms. Howell began experiencing lower back pain and difficulty breathing. She went to Dr. Jansen in Arkadelphia for treatment and was admitted to the Baptist Memorial Hospital in Arkadelphia the next day. Ms. Howell remained for three days in intensive care. Tests revealed adult respiratory distress syndrome with bilateral pneumonia and respiratory failure, but Ms. Howell’s physicians were unable to determine the cause of her respiratory failure. She was transferred by ambulance to Baptist Hospital in Little Rock on April 1, 1997, where she was placed on a respirator. Her primary treating physician in Little Rock was Dr. Arthur Squire of the Little Rock Diagnostic Clinic. The clinic’s preliminary analysis report, completed on April 1, 1997, indicated that Ms. Howell had a “severe but presently acceptable shortness of breath at rest,” but, she had “no exercise tolerance whatsoever. Sitting up in bed causes her (sic) begin to cough.”

Ms. Howell remained hospitalized in Litde Rock until April 9, 1997. She continued her treatment at home with the use of an inhaler three times each day until she was able to return to work at Scroll Technologies on June 5, 1997. Upon return to work, Ms. Howell resumed the job of operating the Op30 machines. Eventually, she began to experience respiratory difficulties again, with pain in her chest and burning in her throat. Ms. Howell again visited the doctor and was again hospitalized in September 1997. On this occasion, she was variously diagnosed as suffering from bronchitis, pneumonia, and emphysema. Ms. Howell once again returned to work on the Op30 machines after a few weeks, but began to believe that her illness was caused by this work when in October 1997, after being at work only a short time since her previous hospitalization, she again experienced breathing difficulties. Ms. Howell requested a mask to wear while working, but was informed by her supervisor that she must consult the company nurse and receive authorization from the “safety lady” to wear a mask. According to Ms. Howell, the nurse provided her with a dust mask. Ms. Howell worked for one week and one day before she was again hospitalized with respiratory problems. She had difficulty breathing, abrupt episodes of fever, sweat, chill, and cough; her sputum was alternately yellow and clear, sometimes containing blood. Ms. Howell expressed her concern to her physicians that her illness was work-related and gave her treating physicians, Dr. Ford and Dr. Squire, a label that she had removed from a package containing new Kennametal parts for use in the Op30 machines. She had not noticed this label until after her third episode of breathing difficulties. On the label was a warning that read:

WARNING: Grinding product produces potentially hazardous dust/mist that can irritate skin, eyes, nose, throat, and cause temporary or permanent respiratory disease. Permanent respiratory disease can lead to disability or death. Use local ventilation and respiratory protection. Avoid breathing of and prolonged skin contact with dust/mist. Tools can chip or fragment in use. Wear eye protection and use machine guards.

Ms. Howell’s doctors authorized her to return to work near the end of November 1997, but Ms. Howell chose not to return to Scroll Technologies because her employer would not transfer her to a different position. Ms. Howell remained under the care of Dr. Squire until February 1998, during which time she continued to improve. She remained off work until April 16, 1998, when she accepted other employment. She has had no further respiratory problems and is no longer under medical care.

Ms. Howell’s primary treating physician, Dr. Squire, ultimately diagnosed Ms. Howell as having suffered from “recurrent persistent respiratory symptoms with cough, sputum production and blood streaking associated with shortness of breath.” Dr. Squire could be no more specific in his diagnosis of Ms. Howell’s illness, although he did state that she suffered from “intermittent bronchitis of a severe sort with interval bronchitis of a lesser degree.” When questioned about the source of Ms. Howell’s illness, Dr. Squire, testified:

I think that this patient was exposed to substances for which she brought me a warning label and that it would make sense that if she had exposure to the dusts made from these substances that are on the label and had symptoms such as those she presented with, one would come to the conclusion that, unless there was something else wrong with the patient, that it was very likely that these substances had caused the trouble. I don’t think that she had had trouble before she went to work there, and apparendy she became better after she was no longer employed at that machine .... But I think that it would be reasonable to presume that the substances were causative.

Dr. Squire later expanded upon this opinion, stating:

I have no reason to doubt this lady was exposed to the substance that could make her ill, and she had illnesses that would fit the warning labels, and after she was no longer exposed, she seemed to be improved.... [T]o be 100 percent sure [of exposure at work], you would have to send her back to the machine and see what happened.... [I]f she got sick again ... you would have some idea.... Am I 100 percent certain of it [that the machine at work caused this illness]? No.... I think it made absolute sense that the machine was making her sick, but 100 percent we’re never going to get to.
‡ ‡ ‡ $
Claimant’s Counsel: In your opinion, as her treating physician, based upon the history that she’s given you, your treatment of her, your exam of her, and findings and diagnoses that you’ve made, is it fair to say, within reasonable medical certainty, that you think this is at least 51 percent the cause of her condition?
Dr. SQUIRE: ...This lady had not had any trouble with her lungs before she worked at this place, and when she finished working at this place, to the best of my knowledge, she has had no further trouble with her lungs. It would make it seem reasonable that she had in some way gotten exposed to something that caused her to be ill, given that she was able to provide that information. So is it 51 percent? Yes, I think so.

Scroll Technologies submitted no evidence contradicting the opinion of Dr. Squire or the description by Ms. Howell of the machine, her job duties, and the effects upon her health. Scroll Technologies did cross-examine Ms. Howell based upon her application for employment about hazardous working conditions in her previous jobs, wherein Ms. Howell worked occasionally with asbestos and was regularly exposed to dust, fiber, and fumes. However, Scroll Technologies presented no evidence of any respiratory or related illnesses caused by exposure to any of these substances or any causative relationship between Ms. Howell’s prior employment and her 1997 respiratory disease.

The parties stipulated to the existence of an employer/ employee relationship and Ms. Howell’s average weekly wage. A hearing was conducted on December 28, 1998, to litigate the issues of compensability, temporary total disability, medical benefits, and attorney’s fees. Following the hearing, the administrative law judge found that, although it was clear that Ms. Howell suffered from a condition which resulted in disability, she had failed to prove that she suffered a compensable occupational disease while in the employ of Scroll Technologies. The law judge premised this conclusion on his finding that Ms. Howell “failed to establish by clear and convincing evidence a causal connection between her employment and her occupational disease.”

Ms. Howell appealed the law judge’s decision to the full Workers’ Compensation Commission, which affirmed and adopted the opinion of the law judge. Ms. Howell appealed from the full Commission to the Arkansas Court of Appeals, which reversed the Commission’s decision and remanded for the award of benefits, holding that there was no basis for the Commission’s conclusion that Ms. Howell failed to prove a causal connection between her medical condition and her work. Howell v. Scroll Technologies, CA99-1132 (Ark. App. May 31, 2000). Scroll Technologies petitioned this court for review arguing that the court of appeals misinterpreted the statute requiring that proof of an alleged occupational disease be clear and convincing. This court granted the petition pursuant to Ark. Sup. Ct. R. 1- 2(e) (2000). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, _ S.W.3d_(2000); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Our standard of review is well-settled:

On appeal, this court will view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Ester v. National Home Ctrs., Inc., 335 Ark. 356, 361, 981 S.W.2d 91 (1998) (citing Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)).
Substantial evidence exists if reasonable minds could reach the same conclusion. Id. Moreover, we will not reverse the Commission’s decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997).

Frances v. Gaylord Container Corp., 341 Ark. 527, 531, 20 S.W.3d 280 (2000).

Ms. Howell alleges that she is entided to benefits because of a compensable occupational disease.

Where an employee suffers from an occupational disease as defined in this subchapter and is disabled or dies as a result of the disease and where the disease was due to the nature of the occupation or process in which he was employed within the period previous to his disablement as limited in subsection (g) of this section, then the employee, or, in case of death, his dependents, shall be entided to compensation as if the disablement or death were caused by injury, except as otherwise provided in this subchapter.

Ark. Code Ann. § 11-9-601 (a) (Repl. 1996). An “occupational disease” is “any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee.” Ark. Code Ann. § ll-9-601(e)(l)(A) (Repl. 1996). To be compensable, a causal connection between the occupational disease and the employment must be proven by clear and convincing evidence.” Ark. Code Ann. § ll-9-601(e)(l)(B) (Repl. 1996). Furthermore, the employer is not liable for compensation unless the disease is due to the nature of the employment in which the hazard that caused the disease actually exists and is characteristic of and peculiar to the employment. Ark. Code Ann. § 11-9-601 (g)(1) (Repl. 1996).

In the instant case, the Commission held that, even though Ms. Howell clearly established the existence of a disease that resulted in disability, she failed to establish that her occupational disease was compensable because she failed to provide clear and convincing evidence of a causal connection between her employment and the disease. Clear and convincing evidence is “that degree of proof which will produce in the factfinder a firm conviction as to the allegation sought to be established.” J.T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 248, 947 S.W.2d 761(1997); Booker v. State, 324 Ark. 468, 472, 922 S.W.2d 337 (1996); Kelly v. Kelly, 264 Ark. 865, 870, 575 S.W.2d 672 (1979) (holding that evidence “so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the facts related is clear and convincing”).

Ms. Howell presented the following evidence of causation to the Commission:

• The Op30 machines on which she worked ten hours a day, four days a week contained parts labeled “Kennametal” which, when ground, cause a potentially hazardous dust/mist that can cause respiratory disease.
• The machines in which the “Kennametal” parts were used emitted a dust/mist every time the doors opened.
• During the grinding process in the Op30 machines, the“Kennametal” parts were ground down so much each day that they required sharpening approximately five times in each ten-hour shift.
• Ms. Howell was exposed to the dust/mist emitted from each Op30 machine approximately 300 times each day.
• Ms. Howell developed severe respiratory distress after working on the Op30 machines at Scroll Technologies for a period of six months.
• Ms. Howell had no history of respiratory distress or other medical problems.
• Ms. Howell’s condition improved each time she was away from the Op30 machines for treatment and returned each time she resumed working on the Op30 machines.
• Ms. Howell’s condition disappeared when she left the employ of Scroll Technologies.
• Ms. Howell’s treating physicians could find no other cause of her respiratory distress after repeated testing over the period of a year.
• Ms. Howell’s principal treating physician, Dr. Squire, testified that it was his opinion, within a reasonable degree of medical certainty, that Ms. Howell’s exposure at work was at least 51 percent of the cause of her condition.

Although Scroll Technologies has no burden of proof or disproof, it presented no evidence that would contradict or tend to discredit any of the above evidence. The Commission discredited Ms. Howell’s evidence of causation, finding that, although the evidence may rise to the level of a preponderance, it was not clear and convincing. In arriving at this decision, it found that Dr. Squire’s opinion was not sufficient to demonstrate causation because he was not an industrial disease specialist, and because his opinion was based mosdy upon the timing of her illnesses and recuperation. Moreover, the Commission concluded that the timing of the illnesses and recoveries was not clear and convincing evidence of causation; rather, it was merely evidence of coincidence. Finally, the Commission discounted the warning label from the Kennametal package, finding that it did not warn against the type of exposure to which Ms. Howell was subjected. Rather, the warning label applied only “to the sharpening of the grinding tool as opposed to the process claimant was involved in when the tools were used to polish and shape the pieces of metal.” On these bases, the Commission denied compensation.

The court of appeals reversed the Commission’s decision, holding that (1) Dr. Squire’s testimony concerning causation was stated within a reasonable degree of medical certainty; (2) the warning label affixed to the Kennametal part warned against precisely the type of work that was being performed by Ms. Howell; and (3) there was no evidence in the record to dispute the evidence of causation offered by Ms. Howell. In its petition for review, Scroll Technologies argues that the court of appeals misinterpreted the clear and convincing evidence requirement. We conclude that the opinion does not reflect a misinterpretation of the statute; rather, the court of appeals held that a claimant is not required to prove beyond a reasonable doubt that her work caused her illness.

We agree with the court of appeals that there is no basis in the record for the Commission to find that Ms. Howell failed to prove by clear and convincing evidence that her occupational disease was caused by her employment at Scroll Technologies. The evidence outlined above is clear and convincing, and there is no contradictory evidence in the record. Consequently, we reverse and remand with directions that the Commission enter an order awarding Ms. Howell the full benefits to which she is entitled.

We note that Dr. Squire testified the patient was exposed to substances that were on the warning label and that it “was very likely that these substances caused the trouble.” He also responded affirmatively when asked whether he believed within a reasonable medical certainty that Ms. Howell’s exposure at work was at least 51 percent of the cause of her condition. “Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.” Ark. Code Ann. § 11-9-102(16)(B) (Supp. 1999). Relying upon a standard articulated in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), the court of appeals held that Dr. Squire’s opinion was stated within a reasonable degree of medical certainty. We overruled in part the court of appeals’ Atwood decision in Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). However, we did so only “to the extent that it may be read to permit expert opinion evidence under section 11-9-102(16)(B) to be satisfied by the use of terms such as ‘can,’ ‘could,’ ‘may,’ or ‘possibly.’ ” Frances v. Gaylord Container, 341 Ark. at 533-534, 20 S.W.3d at 284. We upheld the standard which the court of appeals purported to be applying in Atwood, even though it was erroneously applied in that case.

As the court of appeals correctly noted here, Dr. Squire’s testimony attributed Ms. Howell’s illness to her employment. His opinion was sufficiently clear to remove any reason for the trier of fact to have to “guess at the cause of the injury.” Frances v. Gaylord Container, 341 Ark. at 533, 20 S.W.3d at 284 (quoting with approval Paulsen v. State, 249 Neb. 112, 121 (1996)). It was thus stated within a reasonable degree of medical certainty and may be called upon to support Ms. Howell's claim of compensability.

Reversed and remanded.

Hannah, J., not participating.