author: RAY THORNTON, Justice.

text:
    Donnie BISBEE v. STATE of Arkansas
    CR 99-1513
    17 S.W.3d 477
    Supreme Court of Arkansas
    Opinion delivered June 1, 2000

      Gary Arnold, Judge;

      Joe Kelly Hardin, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Asst. Att’y Gen., for appellee.
   RAY THORNTON, Justice.

Appellant, Donnie Bisbee, was charged icJune e. 1999, with one count of kidnapping, three counts of rape, and one count of residential burglary. These charges stemmed from the alleged abduction of a child on June 10, 1999. Having been convicted of four or more prior felonies, appellant was charged as a habitual offender. The law enforcement officials spoke with appellant about the abduction on the evening ofjune 11, 1999.

On August 4, 1999, appellant filed a motion to suppress those statements given to the law enforcement officials on June 11, 1999, arguing that his statements should be suppressed because they were not voluntarily given. Specifically, appellant argued that the statements should be excluded from evidence because: 1) appellant was threatened by officers and circumstances; and 2) he was under the influence of intoxicating drugs and did not know what he was doing.

On August 16, 1999, a hearing was held on appellant’s motion. At the hearing, appellant amended his motion to suppress. Appellant argued that his statements should be suppressed because the law enforcement officials interrogating him promised him a “Coke” and a cigarette in exchange for his statements.

Lieutenant Jerry Odom, an employee of the Saline County Sheriff’s Department testified at the hearing. He stated that he was assisting in locating a missing child on July 11, 1999. He also testified that appellant was a suspect in the kidnapping and that he was taken into custody. Lieutenant Odom also stated that as soon as he came into contact with appellant he “Mirandized him” and that appellant verbally and physically acknowledged that he understood his rights. He further testified that appellant waived his rights and answered Lieutenant Odom’s questions about the missing child. In response to Lieutenant Odom’s questions, appellant stated that he would tell the location of the child if he could have a “Coke” and a cigarette. Lieutenant Odom told appellant that he “would get him something to drink and a smoke as soon as we could locate the child.” Finally, Lieutenant Odom stated that after appellant gave a description of where the child could be located, he provided appellant with a “Coke” and a cigarette at the crime scene and again when appellant was taken to the criminal investigation division.

Detective Scottie Courtney with the Saline County Sheriff’s Department also testified at the hearing. He stated that he questioned appellant about the child-abduction case on June 11, 1999, after the missing child had been found. Detective Courtney further testified that he read appellant his Miranda rights prior to questioning him and that appellant verbally acknowledged that he understood his rights, signed the form acknowledging that he understood his rights, and immediately signed a waiver of those rights. Detective Courtney also stated, and the form signed by appellant and the two detectives acknowledged, that neither of the detectives questioning appellant coerced appellant or made any promises to him.

Additionally, Detective Shawn Garner of the criminal investigation division testified. He stated that appellant was not under the influence of drugs or alcohol during the July 11, 1999, interview. Detective Garner also testified that no promises were made to appellant and no coercion was used on appellant during the interview. However, he did note that he provided appellant with a “Coke” during the interrogation but was unable to give appellant a cigarette because neither he nor Detective Courtney smoked. He further stated that appellant had a G.E.D. and indicated that he could read and write. Detective Garner also noted that the entire interview lasted only eleven minutes.

In its order, filed August 23, 1999, the trial court denied appellant’s motion to suppress. The trial court found that appellant had voluntarily waived his rights before speaking to the law enforcement officials and that “based upon the totality of circumstances, that the defendant’s statement to the detectives was voluntary, and was not the product of any express or implied police coercion.”

On September 10, 1999, pursuant to Arkansas Rules of Criminal Procedure 24.3(b), the trial court accepted appellant’s conditional guilty plea. Appellant pleaded guilty to the offense of rape and acknowledged his status as a habitual offender. Appellant’s guilty plea was conditioned upon the State allowing him to appeal the trial court’s adverse ruling on his pretrial motion to suppress. Appellant was sentenced to life imprisonment. Appellant raises one point on appeal, and we affirm the trial court.

In his only point on appeal, appellant contends that the trial court erroneously denied his pretrial motion to suppress. Specifically, he argues, in his one and one-half page brief, that his statements were not voluntarily given because they were given as the result of a promise made by law enforcement officials to provide appellant with a “Coke” and a cigarette in exchange for his assistance.

The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession. Davis v State, 275 Ark. 264, 630 S.W.2d 1 (1982). Any conflict in the testimony of different witnesses is for the trial court to resolve. Id. While we do not reverse the trial court’s finding unless it is clearly erroneous, we do make an independent determination based on the totality of circumstances, with all doubts resolved in favor of individual rights and safeguards, to determine whether the holding of the trial court was erroneous. Id.

A statement induced by a false promise of reward or leniency is not a voluntary statement. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). For the statement to be involuntary the promise must have induced or influenced the confession. McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). Additionally, we have held that where a defendant conceives a plan and bargains for its acceptance in return for what he then claims was wrongfully obtained, it is incumbent on him to show he was coaxed into giving a statement that was not true. Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983)(supplemental opinion denying rehearing). We have explained that it is necessary for the defendant to show that the statement was untrue because the object of the rule is not to exclude a confession of truth, but to avoid the possibility of a confession of guilt from one who is in fact innocent. Id.

As with other aspects of voluntariness, we look at the totality of the circumstances. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). The totality is subdivided into two main components: first, the statement of the officer, and second the vulnerability of the defendant. Davis, supra. We have articulated factors which we will look to in our determination of whether the defendant was vulnerable. Specifically, we have held that the factors to be considered in determining vulnerability include: 1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant’s experience, if any, with the criminal-justice system; and 4) the delay between the Miranda warnings and the confession. Conner, supra.

Applying the applicable rules to the present case, it is clear that the trial court’s findings were not erroneous. Here the promise was neither false nor an inducement of appellant’s statements. Appellant was not enticed by prospects of reward from those in authority. Appellant conceived the idea and initiated the agreement. Specifically, he proposed to offer assistance to the law enforcement officials in return for an assurance that he would receive a “Coke” and a cigarette. Nothing suggests the statements were extorted from appellant by false promises. Appellant makes no claim that his statements were false, or that he was misled by the law enforcement officials. In fact, the State complied with appellant’s requests. After helping the law enforcement officials locate the missing child, appellant was given three “Cokes” and two cigarettes. Moreover, we note that the facts surrounding the giving of his statements to law enforcement officials are substantially similar to those relating to the defendant’s confession in Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983). In that case, we held that a criminal defendant’s statement was not improperly induced by law enforcement officials. Specifically, we held, in our supplemental opinion denying rehearing, that:

When all the factors are considered, we conclude that the confession was voluntarily given: 1) appellant had not been subjected to lengthy interrogation, he was questioned briefly on May 8 and not again until he requested the meeting of May 14; 2) appellant was not without counsel, he had a lawyer, evidently retained, though he chose to meet without him; 3) the Miranda warnings were repeatedly read to appellant; 4) it was appellant who conceived and proposed that he give a statement in exchange for a charge of first degree murder, 5) at the time the agreement was reached appellant had not been charged in the Green murder, he was at most a suspect; 6) the agreement was not reached with the police, who are sometimes accused of overstepping the strict restraints of the law, but with a seasoned deputy prosecutor of more than twenty years affiliation with the office; 7) appellant did not mistakenly rely to his detriment 'on a false promise, the State kept the bargain and appellant benefitted by it; 8) finally, and notably, appellant does not claim he was lured by the hope of reward into giving a false statement, thus, the truth of the statement he gave under oath to the deputy prosecutor remains utterly unchallenged by him.
When the case law applicable to these facts is examined we think it has been correctly applied and the confession was properly admitted. The fact that it was appellant who initiated the proposal is a key factor and one which has been seen by many courts as significandy different from the opposing situation, where the state initiates the proposal and uses it to beguile the suspect.

Williams, supra (emphasis added). Turning to the facts surrounding appellant’s statements, we note that: 1) the length of the appellant’s interrogation was only eleven minutes; 2) appellant was read his Miranda rights several times prior to the giving of his statements and chose to waive his right to an attorney on each occasion; 3) it was appellant who conceived and proposed that he assist the law enforcement officials in exchange for a “Coke “ and a cigarette; 4) appellant did not mistakenly rely to his detriment on a false promise; 5) appellant was not particularly vulnerable in that he was twenty-four years old at the time of the interview, could read and write, had a G.E.D., was in control of his mental faculties, and was not a stranger to the criminal-justice system, having been convicted of at least four prior felonies; and 6) appellant did not assert that he was lured by hope of reward into giving false statements.

We further note that appellant argues that based on our holding in Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991) we must conclude that his statements should have been suppressed. Because the facts in Sanders are inapposite to the case now on review, we cannot agree with appellant. Therefore, we conclude that based on the totality of the circumstance, appellant’s statements were voluntarily given and that the trial court did not err in denying appellant’s motion to suppress. Accordingly, the trial court is affirmed.

4-3(h) Review

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.


source: Caselaw Access Project

author:
LAVENSKI R. SMITH, Justice.
      RAY THORNTON, Justice,

license: Public Domain

text:
    WELCH FOODS, INC. v. CHICAGO TITLE INSURANCE COMPANY
    99-447
    17 S.W.3d 467
    Supreme Court of Arkansas
    Opinion delivered June 1, 2000

      Kim Martin Smith, Judge;

      Friday, Eldredge & Clark, by: James M. Simpson and Chris A. Averitt, for appellant.

      Dover & Dixon, P.A., by: Monte D. Estes, for appellee.
   LAVENSKI R. SMITH, Justice.

Welch Foods, Inc. (“Welch”), appeals . summary judgment in favor of Appellee Chicago Title Insurance Company (“Chicago Title”). The Washington County Circuit Court awarded Chicago Title $23,500 for breach of warranty of title, and $6,025 in costs and fees. On appeal, Welch asserts that Chicago Title should not have been permitted to be subrogated to the rights of the buyer in a real estate transaction because it failed to adequately research the title. Welch contends that the equitable principles underlying subrogation preclude recovery. Additionally, Welch asserts that the trial court erred in assessing damages due to insufficient evidence. Finally, Welch argues that the existence of a material fact as to breach of warranty renders summary judgment inappropriate. We find no error and affirm.

Facts

On July 12, 1995, Welch conveyed a parcel of land in an industrial area of the City of Springdale by warranty deed to Vail and Rita Paschal, husband and wife, and to William T. and Carolyn Coleman, husband and wife. On July 27, 1995, Chicago Title issued tide insurance to the Paschals and the Colemans. On December 13, 1997, the Colemans conveyed their interest in the property to the Paschals. In early 1997, the Paschals discovered that a twenty-foot strip along the west side of the property actually belonged to Southwestern Electric Power Company (“SWEPCO”). This twenty-foot strip comprised a roadway and access from an adjoining street. The Paschals then made a claim against their title insurance policy to Chicago Title. Chicago Title paid the Paschal’s $23,500 for the partial failure of title pursuant to the terms of the title insurance policy. They based the damage amount on an appraisal that gave that amount as the quantity of diminished value resulting from title problems. As a result of that payment, pursuant to paragraph 13 of the title policy, Chicago Title was subrogated to the rights of the Paschals in their claims against Welch. Chicago Title then brought suit against Welch, asserting Welch had breached their warranty of title to the Paschals.

On November 4, 1998, Chicago Title filed a motion for summary judgment asserting that the undisputed facts showed Welch had breached its warranty of title, that the sum paid by Chicago Title to the Paschals represented the damages suffered by the Paschals, and that under the terms of the title insurance, Chicago Title was the subrogee and rightful party to bring suit against Welch. In support of its motion, Chicago Title offered the policy of title insurance, the warranty deed showing the conveyance of the twenty-foot strip to SWEPCO in 1930, the appraisal showing diminished value, and an affidavit of Jeanine C. Ames of Chicago Title, containing a summary of the facts.

In opposition, Welch argued that Chicago Title was barred from recovery because its negligence caused the loss. In particular, Welch contended Chicago Title failed to. properly research and discover the title defect when it undertook a title search in preparation for issuing the title insurance. Welch also argued that fact questions existed on the issue of damages, because it would have insisted on the same price for the property even had the lesser acreage been conveyed. Welch offered no supporting documents or affidavits in opposition to those offered by Chicago Title.

On December 16, 1998, Welch filed its own motion for summary judgment. Welch contended no issue of fact existed whether Chicago Title was negligent, and that the court should determine as a matter of law that Chicago Title’s suit was barred based upon principles of equity. Again, Welch offered no supporting documents or evidence. The trial court heard both motions on January 28, 1999. At that time, Welch proffered its own appraisal to rebut the damages asserted by Chicago Title, but the trial court did not consider the appraisal because it was not provided “prior to day of the hearing” as required in Ark. R. Civ. E 56(c). Based upon the pleadings, affidavits, and exhibits, the trial court found the undisputed facts showed Welch breached its warranty of title, and that damage to the title was $23,500 on February 11, 1999. The court awarded $23,500 in damages, $125 in costs, and $5900 in attorney’s fees. The trial court thus granted Chicago Title’s motion for summary judgment and denied Welch’s motion. Welch timely filed its notice of appeal on March 10, 1999.

Standard of Review

Our review of a trial court’s summary judgment focuses on whether the evidence presented by the movant left a material question of fact unanswered. Mashburn v. Meeker Sharkey Financial Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). The moving party bears the burden of sustaining the motion, and the proof submitted is viewed in a light most favorable to the party resisting the motion. Once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Flentje v. First National Bank Of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).

Subrogation

The principal issue in this case is whether Chicago Title, as subrogee to the buyers in a real estate transaction, is forbidden from enforcing the buyer’s rights against the seller who breached the warranty of title contained in its deed, because Chicago Title failed to discover the defect in the title in its tide investigation. This court has not previously answered this question. Welch contends that the equitable nature of subrogation makes Chicago Title subject to equitable defenses. Welch argues that this court has eliminated all distinction between conventional and equitable subrogation. We disagree and affirm.

Subrogation at its essence is the substitution of one party for another in the exercise of some legal right. Black’s Law DICTIONARY, p. 1440 (7th ed. 1999). Subrogation is routinely divided into two types. They are conventional subrogation and legal subrogation. The distinction relates to the facts giving rise to the substitution of rights. “Conventional subrogation, as the term implies, is founded upon some understanding or agreement, express or implied, and without which there is no ‘convention.’ ” Courtney v. Birdsong, 246 Ark. 162, 437 S.W.2d 238 (1969). Legal or equitable subrogation, on the other hand, is a creature of equity, and not dependent upon contract, but rather dependent upon the equities of the parties. It arises by operation of law. Courteny, 246 Ark. at 166.

Whether by agreement or by operation of law, the very concept of subrogation is of equitable origin. Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, 158 S.W.1052 (1913). This equity arises when one not primarily bound to pay a debt, or remove an incumbrance, nevertheless does so; either from his legal obligation, as in the case of a surety, or to protect his own secondary right; or upon the request of the original debtor, and upon the faith that, as against the debtor, the person paying will have the same sureties for reimbursement as the creditor had for payment. Southern Cotton Oil Co., 108 Ark. at 559. Subrogation is a doctrine steeped in equity and generally governed by equitable principles. Cooper Tire & Rubber Co. v. N. W. Nat’l Cas., 268 Ark. 334, 595 S.W.2d 938 (1980); Baker, Adm’r. v. Leigh, 238 Ark. 918, 385 S.W.2d 790 (1965); Cooper v. Home Owners Loan Corp., 197 Ark. 839, 126 S.W. 112 (1939); Southern Cotton Oil Co., supra; and, 73 Am. Jur. 2d, Subrogation § 16.

Welch argues that based upon subrogation’s equitable origin, the equities between Welch and Chicago Title must be compared before a trial court could grant subrogation as a remedy. Welch cites Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 837 (1997), for the proposition that the distinctions between conventional and legal subrogation have been entirely eliminated. However, Franklin is distinguishable from the instant case on its facts, and it does not stand for the general proposition that conventional and legal subrogation will be treated the same under all circumstances.

Franklin clearly dealt with a circumstance not present in the instant facts — the equities existing between an insured and his insurance company. In Franklin, the majority refused to enforce an express subrogation clause in favor of the insurance company where the insured had not been made fully whole. By so holding, Franklin thus reaffirmed the holding in the case of Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), and overruled Higginbotham v. Ark. Blue Cross & Blue Shield, 312 Ark. 199, 849 S.W.2d 464 (1993), which had enforced a conventional subrogation right even where the insured had not been made whole. The following explicit language in Franklin regarding its application makes it inapposite as precedent for the instant case: “[W]e take this opportunity to clarify our position on the priority given to subrogation rights of insureds versus those of insurers in instances where both parties have claims against a partial recovery from a third party.” This case does not involve an insured and his insurer. Franklin is, therefore, not controlling.

Welch cites Transamerica Title Ins. Co. v. Johnson, 103 Wash.2d 409, 693 P.2d 697 (1985), and First American Title Insurance Co., v. Haggins, 1998 Ohio App. Lexis 279, 1998 WL 32776 (Ohio App. 8 Dist. 1998)(an unpublished intermediate appellate decision), for the proposition that regardless of the source of the right of subrogation equities between the parties must be balanced.

However, as stated above, our court has not abolished all distinction between conventional and equitable subrogation in every circumstance. Here, where the insurer is exercising express contractual rights of subrogation in a claim against one other than its insured and against one to which it owed no legal duty, or who demonstrated no reliance, equitable defenses are unavailing. Welch acknowledges that it was not a named insured on the title policy but argues that Chicago Title owed it a legal duty and breached that duty. For support Welch relies upon Bourland v. Title Ins. Co. of Minnesota, 4 Ark. App. 68, 627 S.W.2d 567 (1982), for the establishment of the title company’s duty. Clearly, our cases, and those of other jurisdictions, establish a duty on the part of title companies to make a reasonable search of the relevant records to detect clouds or defects in title. However, neither our courts, nor those of other jurisdictions, have held that that duty extends beyond those to which the company is contractually obligated, or to those shown to have reasonably relied upon the search. Welch also relies upon Lawyers Title Ins. Corp. v. Capp, 174 Ind. App. 633, 369 N.E.2d 672 (1977), but it, too, is quite different from the case at bar. In particular, the Capp court noted that the title insurance policy itself involved a tripartite agreement involving the vendor, vendee, and insurer. Moreover, Capp (the vendor) demonstrated reliance upon lawyers. In the instant case, Welch failed to show either contractual obligation or reliance.

State of the Title/Damages

For its final two points on appeal, Welch argues that material issues of fact remained as to the state of the title and as to damages. To establish these fact issues, Welch sought to introduce a real estate appraisal on the day of the hearing. The trial court refused to consider the appraisal because it was not brought forth prior to the day of the hearing. Welch contends that the court abused its discretion because an appraisal is not an affidavit, and, therefore, Rule 56(c) would not be conclusive. Also, Welch argues that the proffered appraisal would have altered the outcome of the proceedings. Contrary to Welch’s contention, Rule 56(c) does indeed apply. Welch supplies no convincing authority that would require reversal of the court’s decision in the instant case. Indeed, both Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988), and McMullan v. Molnaird, 24 Ark. App. 126, 749 S.W.2d 352 (1988), cited by Welch, excluded the proffered evidence as untimely and we find Welch’s distinctions unpersuasive where they give no justification for the untimely proffer. We hold the court’s refusal to consider the appraisal proffered on the day of the hearing not to be an abuse of discretion. Accordingly, the trial court grant of summary judgment is affirmed.

Affirmed.

Corbin and Thornton, JJ„ dissent.

RAY THORNTON, Justice,

dissenting. On July 12, 1955, stice, conveyed a parcel of land in Springdale’s Industrial Park to Vail and Rita Paschal and William T. and Carolyn Coleman. Two weeks later, Chicago Title issued title insurance to the buyers. It is not clear who paid for the title insurance or whose obligation it was to furnish title insurance. A road serving the property ran along the west side of the property and access to the property was provided by means of an easement to use that road. A twenty foot strip of the road was included in the description of the property conveyed by Welch, who did not own the fee title upon which the road was situated, but only an easement. In 1997, Paschal made a claim against Chicago Title for partial failure of title, claiming $23,500 in damages as a result of only receiving an easement rather than fee title subject to easements in favor of other users of the road. Chicago Title promptly paid this claim and sought relief from Welch because of the erroneous description in the warranty deed from Welch to the Paschals.

The doctrine of subrogation arises from considerations of equity, and in my view should be subject to equitable defenses. While Welch did not timely present its own appraisals for consideration by the court, it contends that its selling price for the land would have been the same regardless of whether the roadway was an easement or a fee title. In my view, Chicago Title was paid for title insurance and was negligent in not discovering and disclosing to the purchaser the flaw in the title. The majority allows Chicago Title to recover from Welch without consideration of Chicago Tide’s own negligence.

Therefore, I respectfully dissent, and I am authorized to state that Justice CORBIN joins in this dissent.


author: PER CURIAM.

text:
    Daniel W. JOHNSON v. STATE of Arkansas
    CR 00-476
    17 S.W.3d 499
    Supreme Court of Arkansas
    Opinion delivered June 1, 2000

      The James Law Firm, by: Steven R. McNeely and William O. “Bill” James, Jr., for appellant.

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

[1] Appellant Danny W Johnson has filed a petition AM. review pursuant to Ark. Sup. Ct. R. 1-2 and 2-4, stating that he is entitled to a review because the Arkansas Court of Appeals erroneously affirmed appellant’s second-degree murder conviction for noncompliance with our abstracting requirements. We have determined that review is proper on the issue of whether appellant’s conviction was properly affirmed for noncompliance with Arkansas Supreme Court Rule 4-2. Because determination of this issue involves the interpretation and application of Ark. Sup. Ct. R. 4-2, we grant review on this question only.


author: PER Curiam.

text:
    Arley David MATHIS v. STATE of Arkansas
    CR 00-551
    17 S.W.3d 499
    Supreme Court of Arkansas
    Opinion delivered June 1, 2000

      Robert Scott Parks, for appellant.
    No response.
   PER Curiam.

Appellant Arley David Mathis, by and through am. attorney, has filed a motion for rule on clerk. His attorney, Robert Scott Parks, states in the motion that the order extending time for filing the record was entered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    ARKANSAS DEMOCRAT-GAZETTE; Arkansas Press Association; Associated Press; KFSM-TV; Morning News of Northwest Arkansas; Northwest Arkansas Times v. Judge Stacey ZIMMERMAN
    00-641
    19 S.W.3d 1
    Supreme Court of Arkansas
    Opinion delivered June 6, 2000

      Williams & Anderson LLP, by: John E. Tull III and Kristine G. Baker, for petitioners Arkansas Democrat-Gazette, Arkansas Press Association, Associated Press, and KFSM-TV.

      Mark Hinueber for petitioner Morning News of Northwest Arkansas.

      Lisle Law Firm, by: Chris Lisle, for petitioner Northwest Arkansas Times.

      Mark Pryor, Att’y Gen., by: Brian G. Brooks, Ass’t Att’y Gen., for respondent.
   PER CURIAM.

This matter involves a gag order issued by Juvenile Judge Stacey Zimmerman regarding photographs of the victim and the juvenile by the media in the attempted capital murder proceedings in juvenile court. The gag order does not affect the continued publication of photographs of both the victim and juvenile published prior to the gag order. The Arkansas Democrat-Gazette and other publications, as petitioners, have moved this court for the following relief:

•Petition for Writ of Mandamus ordering the judge to rescind the gag order.
•Petition for Temporary Relief from the gag order pending our decision on mandamus or, alternatively, for an accelerated proceeding.
•Motion to Expedite consideration of the mandamus petition and Petition for Temporary Relief.
•Two Motions to Supplement the Record with transcripts of two hearings on the matter.

We deny the Petition for Temporary Relief from the gag order but grant the alternative Petition for an Accelerated Proceeding. We grant the Motion for Expedited Consideration of the Petition for Writ of Mandamus and the Motions to Supplement the Record. Because we have expedited the Petition for Writ of Mandamus and accelerated this matter, a decision will be rendered during this term of court.

THORNTON, J., not participating.


author: W.H.“Dub” ARNOLD, Chief Justice. DONALD L. Corbin, Justice,

text:
    Charles FRANCES v. GAYLORD CONTAINER CORPORATION
    00-130
    20 S.W.3d 280
    Supreme Court of Arkansas
    Opinion delivered June 8, 2000
    [Petition for rehearing denied July 13, 2000.]

      Davis, Mitchell & Davis, by: Gary Davis, for appellant.

      Bridges, Young, Matthews & Drake PLC, by: Michael J. Dennis, for appellee.
   W.H.“Dub” ARNOLD, Chief Justice.

Appellant, Charles ustice. challenging a decision of the Workers’ Compensation Commission denying his claim for medical expenses and temporary total-disability benefits. In a published decision dated January 19, 2000, the Arkansas Court of Appeals reversed the Commission’s decision. See Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000). Pursuant to Ark. Sup. Ct. R. 2-4 (2000), we granted review of the appellate court’s decision. Viewed in the light most favorable to the Commission’s decision, we hold that substantial evidence supports the denial of benefits. Accordingly, we affirm the Commission’s decision because we agree that such benefits may not be awarded under the instant facts and in the absence of medical testimony sufficient to satisfy the requirements of Ark. Code Ann. section ll-9-102(16)(B) (Supp. 1999).

The parties agree that on September 23, 1996, Frances was injured while working for appellee, Gaylord Container Corporation. At the time of the accident, Frances had worked for appellee for approximately thirty-four years. According to Frances’s testimony, on the day of the accident he was clearing away paper, broken during processing, from a paper machine when a scanner struck him on his left side, causing him to twist to the floor in an awkward motion to avoid being seriously injured. Following the accident, Frances continued to work until mid-November, when he missed two days of work.

Eventually, Frances sought medical treatment on December 2, 1996, from Dr. Clyde Paulk, who referred him to Dr. Robert D. Dickins, Jr. Following an MRI scan, Dr. Dickins diagnosed Frances with a possible herniation. Frances then began conservative treatment, including physical therapy, and continued to work full-time, until his back condition failed to improve. Ultimately, on September 3, 1997, he underwent surgery and remained off work until January 7, 1998.

Frances’s co-worker, Brian Flamblin, an eight-and-a-half-year employee who worked as third-man on the paper machine for four years, corroborated the September 23, 1996, incident. Specifically, Hamblin testified that Frances’s shirt was torn and that his arm was cut following the incident. Hamblin also recalled that Frances reported the incident to supervisors and completed an accident report with the foreman. Two to three days after the accident, Hamblin observed that Frances “laid up on the counters” because of back pain and that he began walking with a limp.

Randy Womack, a four-year employee who worked as the fourth-hand on the paper machine in September of 1996, testified similarly. Womack reported that Frances told him that the “scanner had caught him.” Womack also observed that Frances’s “arm was bleeding and his shirt was torn” after the accident. Moreover, he related that three days after the accident, Frances told him that his back was hurting and he was feeling numbness in his leg.

Bobby Young, Frances’s auto mechanic, testified that in November of 1996, Frances came in Young’s shop “walking crooked.” According to Young, Frances told him that he had an accident at work and had hurt his back. Young also added that he had been Frances’s mechanic for ten years, and Frances never indicated that he had been hurt any other way.

After Frances filed his claim for workers’ compensation benefits, the Administrative Law Judge determined that the claim was compensable and ordered Gaylord to pay appellant related medical expenses and temporary total-disability benefits from September 3, 1997, through January 7, 1998. Gaylord appealed the ALJ’s decision to the Workers’ Compensation Commission, which reversed the ALJ and found that Frances had failed to prove that his back condition was the result of any work-related accident.

Notably, the Commission also found that Dr. Dickins’s opinion failed to satisfy the requirements of Ark. Code Ann. section 11-9-102(16) (B) (Supp. 1999), which provides that medical opinions addressing compensability must be stated “within a reasonable degree of medical certainty.” The relevant portion of Dr. Dickins’s letter report, relating to causation, states:

As you are aware, the determination of onset of symptoms related to an injury is determined based on the history a patient gives the physician. The description of the injury Mr. Francis sustained is included in my consultation report dated December 6, 1996. The statement that I can make about this is that the mechanism of injury that he describes could produce a lumbar disc injury. The history given that he initially sustained back pain and then four weeks later had recurrent back and leg pain could be consistent with an injury to the disc initially, subsequently followed by the development of a herniation of that disc.

(Emphasis added.)

Following the Commission’s decision reversing the ALJ’s award, Frances appealed to the Arkansas Court of Appeals. The appellate court reversed and remanded the case, reasoning that the Commission had no substantial basis to deny compensability. Although the appellate court agreed that credibility determinations were left to the Commission, it submitted that the Commission was not free to arbitrarily disregard any witness’s testimony. See Frances, 69 Ark. App. at 30, 9 S.W.3d at 553. From the appellate court’s decision reversing the Commission, comes the instant appeal. Notably, when we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)).

I. Substantial evidence

Appellant’s first point on appeal challenges the sufficiency of the evidence supporting the Commission’s decision denying him benefits. 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).

Although appellee Gaylord acknowledges that the September 23, 1996, accident occurred, it contends that Frances’s injuries are not attributable to the accident. In support of its position, appellee cites instances when Frances reported other causes as the source of his condition, including statements to medical providers and insurance carriers that his injury was not work-related. For example, Gaylord points to Frances’s initial statement to his treating physician that his injuries were not work-related. Next, Frances told Dr. Dickins that he had a subsequent work-related accident in November of 1996, which caused his pain. Frances also denied work-relatedness when he applied for group health benefits. Furthermore, Frances suggested to his co-worker Brian Hamblin that his back problem was caused by old age rather than a work-related accident.

Likewise, Gaylord suggests that Frances’s work history disproves a causal link between the September accident and his subsequent injuries. First, Frances continued to work full duty for nearly a year following the incident and missed only two days of work. Second, Frances delayed seeking medical treatment until December 2, 1996, more than two months after the September accident. Third, he delayed surgery until almost a year after the incident. Fourth, following a meeting with supervisors in January of 1997 to discuss his medical treatment plan, Frances informed his employer that he would handle his medical bills privately in lieu of filing a workers’ compensation claim.

In response, Frances suggests that he elected to pay his own way because he was told that if he filed a claim, it would probably be denied and his insurance might stop paying. Apparently confused as to the consequences of signing the workers’ compensation claim forms and seeing appellee’s doctors, Frances opted to continue treatment with his own physicians. In any event, Gaylord argues that these facts provide substantial evidence to support the Commission’s decision to deny benefits. We agree. Viewed in the light most favorable to the Commission’s decision, we conclude that substantial evidence supports the denial of benefits. Accordingly, we affirm the Commission and reverse the Court of Appeals.

II. Section 11-9-102(16)(B)

The second issue before us on appeal concerns the interpretation of the clause “within a reasonable degree of medical certainty,” as set forth in Ark. Code Ann. section 11-9-102(16) (B) (Supp. 1999). At the heart of the instant appeal is Dr. Dickins’s report opining that the accident, as described by Frances, could have caused the herniation and need for surgery. The Commission determined that this opinion fell short of the statutory requirement that opinions must be stated within a reasonable degree of medical certainty. See Ark. Code Ann. § ll-9-102(16)(B) (Supp. 1999). On the other hand, Frances argues that Dr. Dickins’s failure to use the magic words “reasonable medical certainty” does not, by itself, invalidate the opinion. In that vein, Frances cites the Court of Appeals’ decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998).

In Atwood, the Court of Appeals quoted favorably from a Nebraska Supreme Court decision which explained that:

. . . expert medical testimony based on “could,” “may,” or “possibly” lacks the definiteness required to meet the claimant’s burden to prove causation. Our well-known preference for the use of phrases “reasonable degree of medical certainty” or “reasonable degree of probability” is an indication to courts and parties of the necessity that medical expert opinion must be stated in terms that the trier of fact is not required to guess at the cause of the injury.

Atwood, 61 Ark. App. at 196-97, 966 S.W.2d at 913 (quoting Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996)). Following this direct quote from the Paulsen case, the Atwood court reasoned that although the court expressed a preference for certain phrases:

"... an expert opinion is to be judged in view of the entirety of the expert’s opinion and is not validated or invalidated solely on the basis of the presence or lack of the magic words ‘reasonable medical certainty.’ ”

Atwood, 61 Ark. App. at 197, 966 S.W.2d at 913 (quoting Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996)).

In its petition for review, Gaylord submitted that the appellate court’s decision in Frances v. Gaylord Container Corp., 69 Ark. App. 26, 9 S.W.3d 550 (2000), was in conflict with Atwood. We agree. In quoting with favor from Paulsen, the Court of Appeals acknowledged in Atwood that medical opinions based upon “could,” “may,” or “possibly” lack the definiteness required to meet the claimant’s burden to prove causation. However, in conflict with that expressed position, the Atwood court determined that a physician’s opinion was sufficient when he opined that although eye exams, before and immediately after the claimant’s injury, would be needed to clearly associate the injury to work-related events, acid “can cause” the claimant’s injury. Atwood, 61 Ark. App. at 197, 966 S.W.2d at 912-13. (Emphasis added.)

We expressly agree with the Nebraska Supreme Court’s decision in Paulsen that expert opinions based upon “could,” “may,” or “possibly” lack the definiteness required to meet the claimant’s burden to prove causation pursuant to section 11 — 9— 102(16(B). Accordingly, we modify and overrule the Court of Appeals’ decision in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), to the extent that it may be read to permit expert opinion evidence under section ll-9-102(16)(B) to be satisfied by the use of terms such as “can,” “could,” “may,” or “possibly.”

We also note that although Atwood seemingly rejects an expert’s use of the word “could” when stating an opinion within a reasonable medical certainty, it validates an expert’s use of the word “can.” Given this inherent contradiction, it is understandable why Frances chose not to rely on the Atwood decision in support of his argument. Consequently, because Frances never cited or relied upon Atwood, we apply our limited overruling of Atwood retroactively. See Wiles v. Wiles, 289 Ark. 340, 342, 711 S.W.2d 789, 790-91 (1986); see also Looney v. Bolt, 330 Ark. 530, 536-37, 955 S.W.2d 509, 512 (1997). In conclusion, we hold that Dr. Dickins’s opinion that appellant’s work-related accident was the kind of event that could cause his resulting back condition was insufficient to satisfy section 11-9-102(16)(B).

CORBIN and Smith, JJ., concur in part, dissent in part.

DONALD L. Corbin, Justice,

concurring in part; dissenting spart. tice, result reached by the majority, but I write separately to express my concern that this opinion not be so broadly construed as to preclude future workers’ compensation claims simply because of the way a doctor phrases his medical opinion. As the majority correctly points out, Ark. Code Ann. § ll-9-102(16)(B) (Supp. 1999) requires that a doctor’s opinion be stated within a reasonable degree of medical certainty, but this requirement does not mean that a doctor’s opinion must be stated in unequivocal terms. The practice of medicine is not an exact science. When a patient relates the history of an injury, the doctor may acknowledge that an on-the-job accident caused the injury, but the doctor may also realize that the particular injury could have resulted from other sources as well. In light of the fact that doctors generally are not present when an employee is injured, it is understandable that their opinions may be stated in less than certain terms.

In the present matter, I believe that the majority fails to emphasize a crucial factor common in both this case and Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), that impacts the reliability of the doctors’ opinions. That factor is the lapse of time following the claimants’ accidents before either of them consulted with a physician. Flere, Frances waited over two months from the time of his accident until the time he sought medical treatment. This lapse certainly contributed to the doctor’s inability to state with certainty that Frances’s injury was work related. Likewise, in Atwood, the doctor stated that an opthamologic exam before and immediately after the injury would be needed to clearly associate the injury with the accident sustained by the appellee at work. Clearly, the facts and circumstances present in both of these cases support a finding that a doctor’s opinion stated in terms of “can,” “could,” “may,” or “possibly” do not meet the requirement of section ll-9-102(16)(B) that the opinion be stated within a reasonable degree of medical certainty. I do not believe, however, that given the right set of facts and circumstances, that a doctor’s opinion will automatically fail to meet this requirement simply because of the use of one of these terms.

Concurring in part; dissenting in part.

Smith, J., joins.


author: W.H. “Dub” ARNOLD, Chief Justice.

text:
    GIBSON APPLIANCE COMPANY v. NATIONWIDE INSURANCE COMPANY
    99-923
    20 S.W.3d 285
    Supreme Court of Arkansas
    Opinion delivered June 8, 2000

      Christopher C. Piazza, Judge;

      Womack, Landis, Phelps, McNeill & McDaniel, by: J. V. Phelps and Jeffrey L. Singleton, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Terry Dugger, for appellee.
   W.H. “Dub” ARNOLD, Chief Justice.

This appeal is taken ustice. liability action. The appellant asserts that it is entitled to a new trial or, in the alternative, judgment notwithstanding the verdict. We disagree and hereby affirm the trial court,

The case involves an action which was originally filed by Raymond and Vivian Ross against appellant Gibson Appliance Company, a division of White Consolidated Industries, Inc. (hereinafter “Gibson”), to recover for damages sustained to their home by fire on March 9, 1993, caused by either the manufacture by Gibson of a defective and unreasonably dangerous refrigerator, or Gibson’s negligence. More specifically, the Rosses’ action against Gibson encompassed all theories available under the products liability law, including negligence, breach of warranty, and strict liability. Subsequent to the filing of the initial complaint, on or about March 1, 1996, appellee Nationwide Insurance Company (hereinafter “Nationwide”) was substituted as the party plaintiff in lieu of Mr. and Mrs. Ross, pursuant to a determination by the trial court that Nationwide was the real party in interest.

Gibson denied all allegations of fault and attributed the fire to a burner that was allegedly left on in the Rosses’ home, igniting particles in a skillet which Gibson maintains caused the fire to spread to the rest of the kitchen. Gibson further challenged service of process because it was not served with a copy of the summons and complaint within 120 days after Nationwide had filed its complaint, although Nationwide had timely moved for and was granted an extension of time to perfect service by the trial court.

The case was tried on January 11 and 12, 1999. Prior to trial, both sides stipulated that the damages totaled $37,739.89. After deliberating, the jury returned a verdict in favor of appellee Nationwide in the amount of $11,336.32. After trial, Gibson filed a motion for new trial or, in the alternative, judgment notwithstanding the verdict. As grounds, Gibson alleged that although the verdict form was a general one, the jury’s verdict obviously apportioned over fifty percent of fault to Nationwide’s insured, that the jury’s verdict was not supported by substantial evidence, and that the jury’s verdict was the product of passion and prejudice. In a hearing on the motion, the trial court denied Gibson’s motion. It is from the judgment and order denying its motion for new trial or, in the alternative, motion for judgment notwithstanding the verdict that appellant Gibson now appeals.

Appellant asserts the following points:

1) The trial court erred in denying the summary judgment motion of Gibson Appliance Company based on Nationwide Insurance Company’s failure to show “good cause” for an order extending time for service of the complaint;
2) The trial court erred in denying Gibson Appliance Company’s motion for new trial or, in the alternative, motion for judgment notwithstanding the verdict.
A. The jury’s verdict apportions more than fifty percent of fault to Nationwide Insurance Company’s insured;
B. The jury’s verdict is clearly against the preponderance of the evidence;
C. The jury’s verdict is not supported by “substantial evidence”;
D. The jury’s verdict is the product of passion and prejudice by the jury.

I. Denial of Summary Judgment

The plaintiffs below (Nationwide) filed suit within the time allowed by the statute of limitations, but did not obtain service on the defendant (Gibson) within 120 days, as required by Rule 4(i) of the Arkansas Rules' of Civil Procedure. However, on the 120th day, Nationwide filed a motion for extension of time in which to obtain service. In its motion, it merely stated that it had attempted service and that an investigation was being conducted to determine the defendant’s address. The motion was granted by the trial judge, who found “good cause,” as required by Rule 4(i). Service was then perfected within five days thereafter.

Upon answering the complaint, Gibson claimed that Nationwide had not shown “good cause” for the extension of time. A motion for summary judgment was subsequently filed on the issue. At a hearing on the motion for summary judgment, Nationwide presented additional proof of good cause. The motion for summary judgment filed by Gibson was denied by the trial court, and Gibson now appeals from that denial.

It is a well-settled principle of Arkansas law that, generally speaking, a trial court’s order denying a motion for summary judgment is neither reviewable nor appealable. See Ozarks Unlimited Resources Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998); Direct Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997). Gibson, however, contends that the trial court’s ruling is reviewable on appeal, because in its motion for summary judgment Gibson had raised the issues of the running of the statute of limitations and naming the insurance company as the real party in interest. Gibson contends that because it raised these issues in its first responsive pleading, and properly preserved them, the trial court’s ruling on this issue is akin to a ruling on a motion to dismiss, and not summary judgment. We find this argument to be without merit. This Court has repeatedly refused to address arguments where the effect of doing so is tantamount to reviewing the denial of a motion for summary judgment. See Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996); Nucor-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994); Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh’g denied, 315 Ark. 335(A), 896 S.W.2d at 8 (1994). Accordingly, we hold that Gibson’s argument that summary judgment should have been granted in its favor on this issue is not subject to appellate review and will not be addressed.

II. Motion for New Trial or, in the alternative, JNOV

Gibson contends that it is entitled to a judgment notwithstanding the verdict (JNOV) or a new trial for several reasons. First, Gibson asserts that the jury’s verdict necessarily and mathematically apportions fault in excess of fifty percent to Nationwide based on the imputable conduct of its insureds, Raymond and Vivian Ross. Gibson asserts that because Nation-wide’s fault exceeded that of Gibson, Gibson is entided to have a verdict entered in its favor as a matter of law because the verdict is unenforceable under state law. Additionally, Gibson asserts that the verdict in favor of Nationwide is clearly against the preponderance of the evidence, is not supported by substantial evidence, and is the product of passion and prejudice by the jury.

A. Whether the jury’s verdict apportioned more than fifty percent of fault to Nationwide Insurance Company’s insured

It was stipulated that Nationwide’s damages totaled $37,739.89, which represents the amount it paid Raymond and Vivian Ross for the damage to their home as a result of the fire. Not only was this document entered as evidence, but it was read to the jury during trial. Appellant contends, and the record reflects, that at the completion of all the evidence, the case was submitted to the jury, without objection, on a comparative-fault instruction that required that Nationwide’s damages be reduced by the percentage of the fault of Raymond and Vivian Ross.

Arkansas law concerning comparative fault is set by statute. Ark. Code Ann. § 16-64-122 (Supp. 1999) states in pertinent part:

(a) In all action for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.
(b)(2) If the fault chargeable to a party claiming damages is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is not entided to recover such damages.
(c) The word “fault” as used in this section includes any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.

Here, the jury’s verdict, awarding only $11,336.32 in favor of Nationwide when the amount of damages was stipulated to be $37,739.89, may indeed indicate that it apportioned fault to Gibson well below the required fifty-one percent required by law for Nationwide to recover. However, appellant failed to abstract the comparative-fault instruction which was submitted to the jury, upon which it relies in order to prove that the jury was intentionally making the apportionment Gibson contends it made.

We have consistently held that our review on appeal is limited to the record as abstracted, and we will not reach the merits of a case when documents in the transcript that are necessary for an understanding of the case are not abstracted. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); Burns v. Carroll, 318 Ark. 302, 885 S.W.2d 16 (1994). Rule 4-2(a)(6) of the Rules of the Supreme Court and Court of Appeals provides, in relevant part:

The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision. . . .

(Emphasis added.)

Clearly, without the ability to consider the comparative-fault instruction the jury was given, since it was not abstracted as required, it is impossible for this Court to determine, without resorting to speculation, whether the jury followed said instruction. Moreover, appellant did not request that the jury be given special interrogatories, which would have required them to clearly apportion fault, if that is indeed what they were doing. Further, appellant did not object to or seek clarification regarding the verdict before the jury was discharged.

This court has held that the time to object to an irregularity or inconsistency in the verdict is prior to the discharge of the jury. See P.A.M. Trans., Inc., v. Ark. Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991); Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988). Appellant contends that these cases do not apply because there was no “inconsistency” or “irregularity” in the jury’s verdict. In fact, appellant contends that the verdict was very clear in articulating the jury’s intent to apportion seventy percent of the fault to Nationwide. Appellant contends that this verdict was not factually impossible, but it was simply legally unrecognizable, in light of the comparative-fault statute.

Appellant states on the one hand that the verdict is not “inconsistent,” but then on the other hand argues that the verdict is inconsistent with the comparative-fault instruction the jury was given. As stated above, given that the instruction in question was not abstracted, and further that no objection was made nor clarification sought from the jury before it was discharged, this Court is left only to speculate about what the jury’s verdict means. As such, we will not question the jury’s verdict.

B. Whether the jury’s verdict was clearly against the preponderance of the evidence.

Appellant Gibson next contends that when Nationwide’s proof is compared to the proof put forward by Gibson, a verdict in Nationwide’s favor is clearly contrary to the preponderance of the evidence, and that, therefore, the trial court’s failure to grant a new trial constitutes an abuse of discretion. We disagree.

At trial, both Raymond and Vivian Ross testified that they had not had any problems with the refrigerator prior to the fire and that no maintenance, repairs, alterations, or modifications had been done to the refrigerator by them or anyone else since the date it was purchased. The Rosses also testified that the stove next to the refrigerator was not being used for any purpose whatsoever when the fire occurred.

In addition, Nationwide produced the testimony of two expert witnesses, Craig Andres and Lonnie Buie. Andres is a qualified fire investigator and cause-and-origin expert, who testified that the fire originated from, and inside, the refrigerator, based on his investigation and inspection of the fire scene. Buie, a qualified expert in electrical engineering and fire investigations, opined that the fire started inside the refrigerator and was caused by the production of electrical arcing, which in turn resulted from the defective condition of the wiring inside the refrigerator.

In rendering his opinions, Craig Andres relied on his personal inspection of the fire scene conducted on March 11, 1993, two days after the fire, which allowed him to follow and trace all of the burn and heat patterns generated by the fire. Even Gibson’s purported expert, Richard Keith, agreed that a personal inspection is always the preferred method of conducting an investigation. Interestingly, Keith did not even inspect the fire scene or refrigerator, even though he acknowledged the importance of doing so, and in fact, was not even hired by Gibson until October 20, 1998, approximately five years and some months after the accident.

Certainly, when examining the evidence, the weight and value of testimony is a matter within the exclusive province of the jury. See Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994). The crux of Gibson’s argument that the trial court should have granted its motion for directed verdict, and presently its motion for judgment notwithstanding the verdict, is Nationwide’s alleged failure to prove either the existence of a defect and establish that the defect caused the damage, or that Gibson was negligent.

At trial, there was conflicting testimony and opinions as to the cause of the fire and the probability that a defective condition of the refrigerator caused the fire that subsequently damaged the Rosses’ residence. Nationwide’s theory was that the refrigerator was defective and unreasonably dangerous, and/or negligently manufactured, thus causing the fire, while Gibson’s proposed alternative theory was that the fire originated on the Rosses’ stove top and spread to the refrigerator. As previously stated, it was within the jury’s province to believe Nationwide’s theory over Gibson’s version. Gibson cannot even argue that Nationwide’s experts were not properly qualified because Gibson did not object to the testimony and opinions of either based on their qualifications. As such, we cannot say that the jury’s verdict was clearly against the preponderance of the evidence.

C. Whether the jury’s verdict was supported by “substantial evidence.”

The standard of review for a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict, is the same for each, i.e., whether there is substantial evidence to support the jury verdict. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999); Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). In determining whether a new trial should be granted, a trial court may not substitute its view of the evidence for that of the jury in granting a new trial unless the verdict is clearly against a preponderance of the evidence. See Razorback Cab of Port Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). As stated above, based upon the evidence adduced at trial and the testimony of the experts on both sides, we cannot say that the jury’s verdict was clearly against the preponderance of the evidence. As such, the only question remaining is whether there was substantial evidence to support the jury’s verdict.

Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” Hall v. Grimmett, supra. In addition, we have held that in examining whether substantial evidence exists, all evidence must be examined in the light most favorable to the party on whose behalf the judgment was entered and given its highest probative value, taking into account all reasonable inferences deducible from it. Id.

In the instant case, when the evidence is viewed in a light most favorable to Nationwide, clearly substantial evidence existed to support the jury’s verdict in Nationwide’s favor. Certainly, in light of the evidence and testimony discussed above, there was ample evidence of a substantial nature which quite plainly supported the jury’s verdict and which was, at the very least, the equivalent of any countervailing evidence.

Nonetheless, Gibson appears to be attacking the weight given the opinions of Nationwide’s experts. Gibson cites no authority whatsoever, however, for the proposition that a verdict cannot be sustained because the experts presented by both parties disagree and espouse opposing theories. First of all, juries are not bound to accept an expert opinion as conclusive, but should give it whatever weight they think it should have and may disregard any opinion testimony if they find it to be unreasonable. See AMI 106.

Secondly, the law is quite clear that a qualified expert’s opinion constitutes substantial evidence unless it is shown that the expert’s opinion is without a reasonable basis. Buchanna v. Diehl, 98 F.3d 366, 369 (8th Cir. 1996), quoting Ford Motor Co. v. Massey, 316 Ark. 345, 855 S.W.2d 897, 899 (1993). Again, Gibson, like the plaintiff in Buchanna, cannot argue that Andres or Buie were not properly qualified because Gibson did not object to the testimony and opinions of either based on their qualification. Moreover, there was a reasonable basis for both of their opinions. Gibson had an opportunity to cross-examine each of them to try to show that their opinions had a questionable basis. Such an opportunity was all that was required, and the jury was entitled to credit the testimony of Andres and Buie if it so chose, which obviously it did.

In short, when viewed in a light most favorable to Nationwide, substantial evidence clearly existed to support the jury’s verdict in its favor. Therefore, as such, we cannot say that the trial court erred in denying appellant’s- motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict.

D. Whether the verdict was the product of passion and prejudice by the jury.

Gibson contends that the jury’s verdict was the product of passion and prejudice, and that the trial court’s denial of it’s motion for new trial because of this fundamental unfairness constitutes an abuse of discretion and is reversible error. We disagree.

The record in this case reflects that after several hours of deliberation, the jury submitted a series of questions to the trial court, the first of which was not documented by the court reporter and is not part of the record herein but, according to appellant, concerned whether the refrigerator was grounded at the time of the fire. The jury stated in its next question that it could perhaps reach a compromise but that it needed to know which alternative in the comparative-fault instruction would not affect the “credibility” of Nationwide’s insured couple, the Rosses, whose home was the site of the fire. The jury was then instructed that it was only to base its verdict on the “evidence in the case.” The final jury question simply asked whether the Rosses could be sued. After being advised by the court that the Rosses could not be sued, the jury returned its verdict within fifteen minutes.

Gibson contends that the jury clearly made its compromise decision on the basis of whether or not the Rosses could be sued for the damage caused by the fire, and not on the basis of the evidence. Gibson contends that the jury’s obvious concern with the legal ramifications of its factual conclusions on a disinterested third party clearly shows that the jury’s verdict was influenced by passion and prejudice for the Rosses. We find appellant’s arguments to be unpersuasive.

First, there is no evidence to support appellant’s contention on this point. The sole fact that the jury asked questions in regard to the Rosses fails to prove that the jury’s verdict was based on passion or prejudice. In fact, the verdict that the jury awarded, in and of itself, was substantially less than the amount of damages sustained and stipulated; this clearly demonstrates that the jury’s determination was not improperly influenced. Further, the appellant cites no case law or other authority in support of its position on this point. As discussed previously, if Gibson was of the opinion that the jury’s verdict was irregular or inconsistent, or even unclear, it had a duty to raise these issues at trial and before the jury was discharged; it chose not to do so.

In short, it is clear that the jury chose to believe Nationwide’s theories as to the cause and origin of the fire, which it was certainly at liberty to do, and discounted those theories proffered by Gibson. At the same time, it would amount to little more than speculation and conjecture for us to attempt to ascertain at this point the basis for the jury’s verdict, which was general in nature and was not questioned at the appropriate time. Quite simply, Nationwide put on sufficient and substantial evidence to support its claims against Gibson, as well as create a question for the jury on the issues of product liability, negligence, and breach of warranty. Accordingly, we hold that the trial court’s actions were proper, and the jury’s verdict should stand.

Affirmed.


author: Donald L. Corbin, Justice. TOM Glaze, Justice,

text:
    Renate HAPNEY v. RHEEM MANUFACTURING COMPANY
    99-732
    26 S.W.3d 771
    Supreme Court of Arkansas
    Opinion delivered June 8, 2000
    [Petition for rehearing granted in part and denied in part September 14, 2000. ]

      Sexton & Fields, P.L.L.C., by: William J. Kropp III, for appellant.

      Warner, Smith & Harris, PLC, by: Wayne Harris, for appellee.

       Corbin and Thornton, JJ., dissent in part and concur in part. See 342 Ark. 11, 26 S.W.3d 777 (2000).

   Donald L. Corbin, Justice.

Appellant Renate Hapney appeals stice. Arkansas Workers’ Compensation Commission denying her claim for benefits for a ruptured cervical disc from her employer, Appellee Rheem Manufacturing Company. The Commission found that Mrs. Hapney had failed to meet her burden of proof that she suffered a compensable injury. The Arkansas Court of Appeals affirmed the Commission’s decision, by a tie vote, in Hapney v. Rheem Mfg. Co., 67 Ark. App. 8, 992 S.W.2d 151 (1999). We granted Mrs. Hapney’s petition for review of that decision pursuant to Ark. Sup. Ct. R. l-2(e)(i). 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. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).

Standard of Review

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.; Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). 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 Mfc. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). 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. White, 339 Ark. 474, 6 S.W.3d 98.

Facts

The record reflects that Mrs. Hapney has been employed by Rheem since 1984, where she primarily worked as a press operator. On Friday, February 2, 1996, Mrs. Hapney was transferred to an assembly line and given new job duties that required her to attach two metal plates to air conditioning units. Specifically, these duties consisted of using an orr to line up the screw holes and then using a screw gun to place six screws in each unit. In order to complete her assigned task, Mrs. Hapney stated that she had to bend down six times and turn her heck a little when attaching the plates to each unit. Mrs. Hapney worked a nine-hour shift on that day and assembled a total of 316 units. According to her calculations, Mrs. Hapney would have bent down over 1,800 times that day.

Mrs. Hapney testified that while performing her job duties, her neck and right arm began to hurt, but that she was able to complete her shift. According to Mrs. Hapney, the pain progressively worsened, and eventually she was unable to move her head. She also reported experiencing numbness in her right arm. Mrs. Hapney reported to Dr. Carson, Rheem’s company doctor, on Monday February 5, 1996: Dr. Carson put her on restriction or light work, but then completely took her off work on February 13. Mrs. Hapney remained off work until September 3, 1996.

Mrs. Hapney was referred to the Holt Krock Clinic on February 15 where she was examined by Dr. William Sherrill. Dr. Sherrill ordered a cervical MRI on March 29, and it revealed disc herniation at C5-6 and some protrusion at C6-7 resulting in spinal stenosis. Thereafter, Dr. Sherrill arranged for Mrs. Hapney to see a neurosurgeon, Dr. Luis Cesar. Dr. Cesar recommended that Mrs. Hapney undergo an anterior cervical fusion at C5-6. In a letter dated October 11, 1996, Dr. Cesar reported that to the best of his knowledge the major cause of Mrs. Hapney’s problem was the February 2 injury. This opinion refuted Dr. Cesar’s earlier opinion that Mrs. Hapney’s disability may have been related to a previous shoulder injury sustained on April 19, 1993.

Mrs. Hapney admitted that she had previously suffered an injury in April 1993, which resulted in shoulder surgery, and that she had experienced neck pain on occasion ever since. She further stated, however, that the pain she began experiencing on February 2 was different and more severe than any other pain she had previously experienced. Moreover, none of Mrs. Hapney’s medical records from the 1993 injury indicate that she suffered from any problems with her cervical spine.

A hearing was held before an administrative law judge (ALJ) on October 29, 1996. In a January 31, 1997 opinion, the ALJ found that Mrs. Hapney had proven that her neck injury was compensable under the gradual-onset exception for both rapid repetitive motion injuries and back injuries, as codified at Ark. Code Ann. § 11 —9— 102(4)(A)(ii)(a) or (b) (Supp. 1999). Rheem appealed the ALJ’s decision to the Commission.

After conducting a de novo review of the entire record, the Commission concluded that Mrs. Hapney had failed to prove that she sustained a compensable injury because the gradual-onset exception for back injuries does not extend to injuries of the cervical spine. The Commission found, however, that the rapid repetitive motion exception is applicable to cervical injuries, but ultimately determined that Mrs. Hapney failed to meet her burden of proof under this exception. Specifically, the Commission opined that while Mrs. Hapney was required to perform her movements every 1.89 minutes, this was not a sufficiently high rate of speed to satisfy the rapid requirement. Finally, the Commission found that Mrs. Hapney had also failed to prove that she sustained a specific incident injury, identifiable by time and place. Mrs. Hapney now appeals this order.

Injury to Cervical Spine

For her first point on appeal, Mrs. Hapney argues that the Commission erred in determining that the gradual-onset exception for back injuries as set forth in section 11-9-102(4) (A) (ii) (b) does not apply to the injury she suffered to her cervical spine. Under this provision, “compensable injury” means:

(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence [.]

The term “back injury” is not defined. Mrs. Hapney argues that it would be absurd to limit the meaning of back as found in the statutory provision to only the lower part of the spine. On the other hand, Rheem argues that if the legislature had intended injuries such as Mrs. Hapney’s to be compensable under this exception, then they would have made reference to injuries to the spine or would have included a provision for neck injuries in the statute.

The issue before us is one of statutory construction. We note at the outset that the term “back injury” as stated in section ll-9-102(4)(A)(ii)(b) is ambiguous and requires us to resort to the tools of statutory construction. A cardinal rule of statutory construction is to give effect to the intent of the legislature. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998); Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996). In considering the meaning of a statute, we consider it just as it reads, giving the words their ordinary and usually accepted meaning. Nelson v. Timberline Int’l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998). In ascertaining legislative intent, this court may examine statutory history as well as conditions contemporaneous with the time of the enactment, the consequences of interpretation, and all other matters of common knowledge within this court’s, and in this case the Commission’s, jurisdiction. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998); Priest, 325 Ark. 257, 926 S.W.2d 432.

This court recognizes its duty to stricdy construe workers’ compensation statutes pursuant to Ark. Code Ann. § 11 — 9— 704(c)(3) (Repl. 1996). See Lawhon Farm Servs., 335 Ark. 272, 984 S.W.2d 1. Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Id., citing Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). The doctrine of strict construction requires this court to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). Even in light of this strict construction requirement, we believe that the Commission erred in excluding an injury to the cervical spine from the gradual-onset exception for back injuries.

Critical to our determination is the fact that pursuant to Ark. Code Ann. § 11-9-519 (Supp. 1999), the Commission has adopted the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) to be used in the assessment of anatomical impairments. A review of the Guides reveals that in assessing impairments, there is no specific set of guidelines for back injuries. Instead, the Guides addresses such impairments in the context of the spine. In describing the musculoskeletal system, the Guides states that the upper extremity, the lower extremity, the spine, and the pelvis are each to be considered a unit of the whole person. The Guides goes on to state that the spine normally consists of twenty-four vertebrae. The cervical region has seven vertebrae, Cl through C7; the thoracic region has twelve vertebrae, T1 through T12; and the lumbar region has five vertebrae, LI through L5. While Appellee attempts to distinguish this case by arguing that the “neck” and “back” are two different units under common parlance, such an argument ignores the fact that the Commission is not to consider impairments in terms of common parlance, but rather based on the factors enumerated in the Guides. The Guides does not treat impairments in terms of neck and back injuries, but rather as injuries to the spine. It is important to note that while Mrs. Hapney referred to her pain in terms of neck pain, the medical evidence submitted in this case diagnosed Mrs. Hapney in terms of an injury to her cervical spine, not her neck.

A review of both general and medical dictionaries further reveals that the terms “back,” “spine,” and “neck” are commonly used interchangeably. Webster’s New World Dictionary 99 (3d College Ed. 1988) defines back in relevant part as:

1. the part of the body opposite to the front; in humans and many other animals, the part to the rear or top reaching from the nape of the neck to the end of the spine.
2. the backbone or spine.

“Neck” is defined as “that part of a human or animal joining the head to the body, including the part of the backbone between the skull and the shoulders.” Id. at 906. Finally, “spine” is defined as “the spinal column; backbone.” Id. at 1292. The Sloane-Dorland Annotated Medical-Legal Dictionary 74 (1987) defines “back” as “the posterior part of the trunk from the neck to the pelvis; called also dorsum. See also spine; and vertebra.” Clearly, these definitions indicate that the back encompasses that region of the body beginning at the neck.

Finally, at least one other jurisdiction has addressed a similar issue. In Newberg v. Thomas Indus., 852 S.W.2d 339 (Ky. App. 1993), the Kentucky Court of Appeals, in reviewing a workers’ compensation claim, held that the cervical vertebrae are part of the worker’s back. There, as here, an argument was made that there was a popular and common distinction between “back” and “neck.” The court rejected this argument, pointing out that the legislature had adopted the Guides, which states that the back may be divided into three regions: the cervical, dorsal, and lumbar regions. Id. at 340, 341. In a footnote to its opinion, the court noted that the Guides had been revised, but concluded that such revision did not change the court’s analysis of compensability.

Based on the foregoing, we cannot say that fair-minded persons would reach the same conclusion as the Commission that the gradual-onset exception for back injuries does not encompass injuries to the cervical spine. Thus, we reverse and remand this matter to the Commission to determine whether Mrs. Hapney has met her burden of proof with regard to the other elements of compensability set forth in section 11-9-102. Having reached this conclusion, we need not address the remaining points on appeal.

Reversed and remanded.

Glaze and Brown, JJ., dissent.

TOM Glaze, Justice,

dissenting. The majority opinion tice, may be an equitable decision in awarding benefits to Renate Hapney, but in doing so, it utilizes a rather odd interpretation and definition of the term “back,” as that term is employed in Ark. Code Ann. § ll-9-102(5)(A)(ii)(b) (Supp. 1999). Under the workers’ compensation statute, a worker sustains a compensable injury if the injury is a back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence.

In the present case, it is undisputed that Hapney sustained a neck and cervical spine injury, but the statute in issue makes no mention of a neck injury. Nonetheless, the majority opinion says the word “back” includes a neck injury, even though in common medical parlance “back” is defined as the posterior aspect of the trunk, below neck and above buttocks. See PDR Medical Dictionary, 1st Edition (1995). Similarly, “back” is defined in the SloaneDorland Annotated Medical-Legal Dictionary (1987) as the posterior part of the trunk from the neck to the pelvis. See also Stedman’s Medical Dictionary, 26th Edition (1995) (posterior aspect of trunk, below neck and above buttocks). In considering the meaning of the term “back” as employed in § ll-9-102(5)(A)(ii)(b), its accepted definition includes that part of the posterior aspect of the trunk below the neck, and this court’s duty on review of this case is to accept that meaning. See, e.g., Nelson v. Timberline Int’l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998).

The majority opinion injects needless ambiguity to the reading of the statute by discussing the term “spine” — a word that is not found in the statute. Clearly, a person’s neck and back are a part of the spine, but that has nothing to do with this court’s duty to fairly interpret the term “back” used in § 11 -9-102 (A) (ii) (b). If the General Assembly had intended to include neck injuries, it could easily have done so. The majority further confuses matters by citing a Kentucky case, Newberg v. Thomas Indus., 852 S.W.2d 339 (Ky. App. 1993). There, the Kentucky Court of Appeals, in construing a Kentucky statute liberally, concluded “back” shall include cervical spine injuries. (Emphasis added.) Arkansas law requires a different standard of review than Kentucky’s, since Ark. Code Ann. § 11-9-704(c)(3) provides that administrative law judges, the Commission, and any reviewing court shall construe the provisions of our workers’ compensation provisions strictly. (Emphasis added.) The General Assembly gave further definition, in Ark. Code Ann. § 11 — 9— 1001 (Repl. 1996), to what is meant by strict construction, stating “if such things as . . . the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by an administrative law judge, the Workers’ Compensation Commission, or the courts.” In the instant case, the General Assembly provided for benefits for gradual onset injuries to the back, but omitted mention of such benefits for injuries to the neck. As I read the law, the General Assembly has reserved to itself the authority to either exclude or add coverage under the Workers’ Compensation Law.

To reiterate, the Kentucky court in the Newberg decision reviewed an employee’s claim for benefits by liberally construing that state’s workers’ compensation statutes. While our state Workers’ Compensation Law, prior to 1993, entitled employee-claimants to a broad and liberal construction, that rule of construction changed with the General Assembly’s enactment of Act 796 of 1993, as is evidenced by the reading of §§ ll-9-704(c) and 11-9-1001 discussed above. In sum, the Commission was not wrong in denying Ms. Hapney’s claim for a gradual onset injury to her neck, because such an injury is not specifically provided for under Arkansas’s statute that defines compensable accidental injury.

While I believe the 1993 workers’ compensation provision, § 11-9-102, must be read to exclude a neck injury, that interpretation does not necessarily preclude an employee’s ability to file a legal action in court for damages on account of the injury. See Ark. Code Ann. § ll-9-105(b)(l) (Repl. 1996). Moreover, it appears to me that, considering the restrictive nature by which the General Assembly has now defined a compensable injury, it may be that an employee’s remedy will likely often He in filing suit for damages rather than seeking a remedy under the Workers’ Compensation Law. For example, under prior law, a compensable injury meant only accidental injury arising out of and in the course of employment. Under present law, an accidental injury exists only if it is caused by a specific incident and is identifiable by time and place of occurrence. (Emphasis added.) Obviously, with such restrictive language, workers may only be able to seek and obtain relief by filing suits for damages. Surely workers cannot be left without a remedy, at least in situations where the worker can show that his or her injury was negligently caused by the employer.

With such restrictive provisions designed to remove an indeterminable number of injuries from coverage under the Workers’ Compensation Law, the General Assembly seems to depart from the law’s purpose which was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public. See Vanderpool v. Fidelity & Cas. Inc. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). When the Workers’ Compensation Law was enacted, employees were compelled to give up the chance of recovering unlimited damages in fault-related cases in return for a certain recovery in all work-related cases. Simmons, 285 Ark. at 279, 686 S.W.2d at 417. Eventually, the General Assembly may well discover that the 1993 Act containing the restrictive language redefining compensable accidental injury will lead to unwanted lawsuits for damages — which was the very vice the Workers’ Compensation Law was designed to eliminate.

BROWN, J., joins this dissent.

       At the time this case was before the Commission and the court of appeals, this statute was codified at Ark. Code Ann. § ll-9-102(5)(A) (Repl. 1966).

       As previously pointed out, an MR.I revealed that Mrs. Hapney suffered from disc herniation at C5-6 and some protrusion at C6-7 resulting in spinal stenosis.

       The Kentucky case in part relied on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which is used to evaluate workers’ disabilities. Under the Guidesy approach to impairment evaluation, the spine is considered to be equivalent to a unit of the whole person and includes the cervical, thoracic, and lumbar regions. While the entire spine may be separated into three regions for evaluation-of-impairment purposes, such guidelines do not establish liability of an employer for a gradual onset injury to a worker’s back or neck.

       Injury also included occupational diseases and infections arising out of an in the course of employment. See Ark. Stat. Ann. § 81-1302 (Repl. 1976).