HAPNEY v. RHEEM MANUFACTURING COMPANY, 2000 AWCC 301

CLAIM NOS. E311438 and E602464

RENATE HAPNEY, EMPLOYEE, CLAIMANT v. RHEEM MANUFACTURING COMPANY, EMPLOYER, RESPONDENT, WAUSAU INSURANCE COMPANY, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED DECEMBER 12, 2000

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by HONORABLE WILLIAM J. KROPP, III, Attorney at Law, Fort Smith, Arkansas.

Respondent represented by HONORABLE WAYNE HARRIS, Attorney at Law, Fort Smith, Arkansas.

ORDER
This matter comes before the Commission upon remand from the Arkansas Supreme Court. In an Opinion delivered on September 14, 2000, the Supreme Court reversed and remanded the Commission’s denial of benefits. SeeRenate Hapney v. Rheem Manufacturing Co., 342 Ark. 11, ___ S.W.3d ___ (2000).

In an Order and Opinion filed on January 31, 1997, the Administrative Law Judge found that the claimant sustained a compensable cervical injury on February 2, 1996. The Administrative Law Judge awarded temporary total disability benefits from February 2, 1996, through a date yet to be determined. The Full Commission, in an Opinion dated March 12, 1998, reversed the Opinion of the Administrative Law Judge and found that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on February 2, 1996. In a tie vote, the Arkansas Court of Appeals affirmed the Commission’s decision. See Hapneyv. Rheem Manufacturing Co., 67 Ark. App. 8, 992 S.W.2d 151 (1999). On June 8, 2000, the Arkansas Supreme Court granted the claimant’s Petition for Review pursuant to Ark.Sup.Ct.R. 1-2(e)(i). In that Opinion, the Arkansas Supreme Court found that the gradual onset exception for back injuries encompassed injuries to the cervical spine. The Court reversed and remanded the matter to the Commission to determine whether the claimant had met her burden of proof with regard to the other elements of compensability that are set forth in Ark. Code Ann. § 11-9-102. On September 14, 2000, the Court Granted the respondents’ Petition for Rehearing of the Court’s June 8, 2000, decision. The Supreme Court reconsidered its decision that gradual onset for back injuries specified in Ark. Code Ann. § 11-9-102(4)(A)(ii)(b) applies to injuries to the neck or cervical spine. The Court stated that the case that it relied upon, Newburg v.
Thomas Industries, 852 S.W.2d 339 (Ky.App. 1993,) was not controlling here stating:

“Its employment of the definition of `back’ used in the 1977 Guides is no longer recognized. Instead, the more current Guides appear to admit that definition of `back’ used in the 1977 Edition and correctly employ the term `spine” when dealing with a determination of impairments.”

The Court found that the Commission was correct in rejecting the claimant’s argument that she sustained a compensable back injury under Ark. Code Ann. § 11-9-102 (4)(A)(ii)(b). However, the Court found that the claimant’s neck injury was compensable and that the claimant proved by a preponderance of the evidence that she had a rapid repetitive motion injury pursuant to Ark. Code Ann. § 11-9-102
(4)(A)(ii)(a) (Supp. 1999). Accordingly, the Supreme Court reversed the Commission’s denial of benefits and remanded the case for an award of benefits.

Therefore, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on February 2, 1996. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). The claimant’s attorney is hereby awarded an attorney’s fee of $250.00 to be paid one-half by the claimant and one-half by the respondent for prevailing on appeal before the Commission.

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ PAT WEST HUMPHREY, Commissioner
_______________________________ MIKE WILSON, Commissioner