Chapter 4 Specific Issues

• Library: Arkansas Workers Compensation Desk Book (2013 Ed.)

SPECIFIC ISSUES

4.1 Accidental injuries which are caused by a specific incident and are identifiable by time and place of occurrence

4.2 Appeals

4.2.1 Appeal to the Full Commission

4.2.2 Appeal to the Court of Appeals

4.2.3 Standard of review – substantial evidence

4.3 Assaults

4.4 Attorney’s fees

4.5 Burden of proof

4.6 Cardiovascular, coronary, pulmonary, respiratory, cerebrovascular accidents and myocardial infarctions

4.7 Carpal tunnel syndrome

4.8 Change of physician

4.9 Child support

4.10 Compensable injury

4.11 Death benefits

4.12 Doctor deposition fees

4.13 Election of forum

4.14 Employment relationship

4.14.1 Definitions

4.14.2 Employment status “in general”

4.14.3 “Casual Employment”

4.14.4 “Concurrent Employment”

4.14.5 “Independent Contractor vs. Employee”

4.14.6 “Subcontractors”

4.14.7 Special employer/dual employee

4.15 Employment services

4.16 Facial disfigurement/scarring

4.17 Gradual onset injuries

4.18 Hernias

4.19 Horseplay

4.20 Independent intervening incident

4.21 Injury to scheduled member

4.22 Intoxication as a defense

4.23 Lump sum settlement

4.24 Mental injuries

4.25 Minors illegally employed

4.26 Notice of injury

4.27 Nursing services

4.28 Occupational diseases

4.29 Penalties

4.30 Safety violations

4.31 Shippers defense (defense of false representation as to physical condition)

4.32 Statute of limitations

4.33 Subrogation

4.34 Suicide

4.35 Undocumented workers

Forms

Form 4-1 Notice of Appeal to the Full Commission

Form 4-2 Notice of Appeal to the Arkansas Court of Appeals

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4.1 Accidental injuries which are caused by a specific incident and are identifiable by time and place of occurrence

With the exception of mental injuries and occupational diseases exempted by Ark. Code Ann. § 11-9-102(4)(C), all injuries which are “accidental” (caused by a specific incident and identifiable by time and place of occurrence) are subject to the following requirements under Ark. Code Ann. § 11-9-102(4)(A):

(1) The injury must cause internal or external physical harm to the body, with the exception of mental injury to a victim of a crime of violence under Ark. Code Ann. § 11-9-113. ¹

(2) The injury must arise out of and in the course of employment.

(3) The injury must be established by medical evidence supported by objective findings. ² Objective findings are those findings which cannot come under the voluntary control of the patient. ³

(4) Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. ⁴

With respect to the requirement of “an accidental injury” an injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.⁵ If the injury did not occur at a specific time and place, it is not “accidental” and can be compensable only under the provisions of Ark. Code Ann. § 11-9-102(4)(A)(ii).⁶

The phrase “arising out of the employment” refers to the origin or cause of the accident. An injury “arises out of the employment” if a casual connection exists between the injury and the employment.⁷ An injury occurs “in the course of employment” when it occurs within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose, or advancing the employer’s interest directly or indirectly.⁸

In accordance with Ark. Code Ann § 11-9-102(4)(D), the claimant must establish a compensable injury by medical evidence, supported by objective findings. “Objective findings” are those that cannot come under the voluntary control of the patient.⁹ The onset of pain does not satisfy the statutory criteria for benefits. Test results that are based upon the patient’s description of the sensations produced by various stimuli are under the voluntary control of the patient and therefore, by statutory definition, do not constitute objective findings.¹⁰

The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Objective medical evidence, while necessary to establish the existence and extent of an injury, is not necessary to establish a causal relationship between the injury and the work-related accident.¹¹

Except in the most obvious cases where causation is established through common sense observation and deduction, the existence of a causal relationship may require the assistance of expert medical evidence.¹²

Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.¹³ In Freeman v. Con-Agra Frozen Foods,¹⁴ the Arkansas Court of Appeals stated:

Medical evidence is not ordinarily required to prove causation, i.e., a connection between the injury and the claimant’s employment, but if an unnecessary medical opinion is offered on that issue, the opinion must be stated within a reasonable degree of medical certainty.

Also, where the claimant’s case for causation rests mainly on his own testimony, the issue is that of credibility and one that is left to the discretion of the Commission.¹⁵

There is no presumption that a claim is indeed compensable.¹⁶ The injured party bears the burden of proof in establishing entitlement to benefits under the Workers’ Compensation Act, and must sustain that burden by a preponderance of the evidence.¹⁷ A preponderance of the credible evidence of record means evidence of greater convincing force.¹⁸ In determining whether a claimant has sustained his or her burden of proof, the Commission must weigh the evidence impartially, without giving the benefit of the doubt to either party.¹⁹

4.2 Appeals

The Arkansas Workers’ Compensation Act allows for appeals from the administrative law judge’s decision to the Arkansas Workers’ Compensation Commission, and from the Full Commission to the Arkansas Court of Appeals.

Decisions by the Arkansas Court of Appeals can be challenged through the filing of a petition for rehearing with the Court itself and the filing of a Petition for Review with the Arkansas Supreme Court.

4.2.1 Appeal to the Full Commission

A compensation order or award of an administrative law judge or a single commissioner becomes final unless the party disagreeing with the order files a notice of appeal with the clerk of the Commission within 30 days from the receipt of opinion. Any other party to the case may cross appeal by filing a notice of cross appeal with the clerk of the Commission within 15 days after the notice of appeal is filed, or within 30 days of receipt of the opinion, whichever is longer.²⁰

On appeal, the Full Commission conducts a de novo review of the evidence and testimony introduced at the original hearing. Generally, the Commission is charged with the duty of determining whether the claimant established every element of his or her claim by a preponderance of the evidence. Other issues can be addressed by the Commission as well including constitutional challenges to statutes or procedures, issues involving the interpretation of statutes or case law, and the merit of objections asserted at the ALJ level.

Once the notice of appeal is filed, the clerk of the Commission issues a written briefing schedule setting forth the due dates for the parties’ respective briefs. Although not recommended, cases can be submitted to the Commission without briefs. A simple letter to the clerk providing notice that a brief is not forthcoming is sufficient. However, one party’s choice not to file a brief is not binding on the other party. Pursuant to Rule 17 of the Rules of the Arkansas Workers’ Compensation Commission, oral argument is also available at the request of any of the parties involved in the claim so long as a request is made in writing within a reasonable time after the appeal is filed. The Commission may also request oral argument on its own motion if it deems it necessary or advisable.²¹ Oral arguments are rarely requested or required at the Commission level.

See Form 4-1, Notice of Appeal to the Full Commission, at the end of this chapter.

4.2.2 Appeal to the Court of Appeals

A compensation order or award from the Commission becomes final unless a party to the dispute files a notice of appeal to the Arkansas Court of Appeals within 30 days of receipt of the opinion or award.²² As with appeals to the Commission, any party may file a cross-appeal to address any rulings or findings with which they disagree within 15 days after the notice of appeal is filed or within 30 days from receipt of the opinion, whichever is longer.²³ The notice of appeal must be accompanied with a fee payable to the clerk of the Commission for preparation of the certified record.²⁴ Once the clerk of the Commission receives the notice of appeal and the initial filing fee, the clerk’s staff will prepare a certified record containing the transcript from the hearing, the exhibits introduced at the hearing and all other pertinent documents and papers. Once the notice of appeal is filed the appealing party has 90 days to lodge the record with the Court of Appeals and pay the appropriate filing fee.²⁵ The clerk of the Commission customarily hand delivers the record to the Court of Appeals and subsequently sends the parties a letter notifying them that the record has been delivered. However, it is advisable to calendar and monitor all deadlines in lieu of relying solely on receiving notification from the clerk’s office.²⁶ Once the record has been delivered to the Court of Appeals, the appealing party must pay the filing fee required by the Court in order to perfect the appeal.²⁷ Once the record is delivered and the filing fee is paid, the case is handled in the same manner as a civil appeal from Circuit Court except for the fact that workers’ compensation cases are to be accorded preference in timely submission to the Court for a decision.²⁸

See Form 4-2, Notice of Appeal to the Arkansas Court of Appeals, at the end of this chapter.

4.2.3 Standard of review – substantial...