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ELLISON v. THERMA-TRU5/12/1999
opaedic surgeon deposed by the parties, testified that "Mrs. Ellison is probably not a good candidate for vigorous activity that requires a lot of bending, stooping and lifting. She should have a sedentary job." This and other proof in the record shows that fair-minded people could not agree with the Commission that the combined effect of Ellison's work related 1991 injury and her pre-existing respiratory condition and pre-existing degenerative back condition did not combine to produce her current disability.
Reversed and remanded.
HART, BIRD, ROGERS, and STROUD, JJ., agree.
MEAD, J., dissents.
MARGARET MEADS, Judge, dissenting.
I cannot agree with the majority to reverse this case. I believe the correct law was properly considered and applied to the facts of the case and the decision should be affirmed.
The record reflects that the Administrative Law Judge (ALJ) made the determination in her March 22, 1996, opinion, and reiterated in her April 18, 1996, amended opinion, that " his injury occurred prior to July 1, 1993, therefore Act 796 does not apply." Therma Tru and Liberty Mutual Ins. Co. appealed these decisions and specified in their Notice of Appeal: "The ALJ's finding that the injury is not governed by Act 796 is contrary to the facts and the law and is error." The Commission issued an opinion on October 22, 1996, finding that claimant sustained a recurrence of her 1991 injury in December 1992 and again in June 1993. This opinion includes the following:
In reaching our decision, we note that the respondents assert that any claim related to the claimant's 1993 back problems is governed by the provisions of Act 796 of 1993. However, we note that the amendments of Act 796 do not apply to a recurrence of an injury sustained before the effective date of the Act.
Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996).
Clearly, the issue of whether Act 796 of 1993 or the law preceding Act 796 applies to these facts has been litigated and properly decided, and I do not believe the Commission failed to consider and apply the appropriate law when it reached its June 11, 1998, decision now on appeal to this court. For the majority to conclude that the Commission gave lip-service only to pre-Act 796 law but actually applied Act 796 is an insult to the Commission and wholly speculative.
I dissent.
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