Index of cases from previous years
Matlock Decision—Personal Comfort Doctrine
Moore v. Wausau Insurance Company
Sheila Hill Case—Court Overrules AWCC

Matlock Decision—Personal Comfort Doctrine
This decision by the Arkansas Court of Appeals is causing a major reassessment of all comp cases involving potential "personal comfort" activities. The following is a summary and commentary on this decision by attorney Lee Muldrow, with Wright, Lindsey, and Jennings:

On June 27, 2001, in Matlock v. Arkansas Blue Cross Blue Shield, the Arkansas Court of Appeals reversed field on the personal comfort doctrine, breathing new life into a theory all but abandoned by claimants since the enactment of Act 796 of 1993. This will cause a reassessment of all cases involving potential "personal comfort" activities such as satisfying thirst, eating, discharging bodily fluids, protecting oneself from excessive heat or cold, or cleansing one's self.

The relevant facts of this case were not in dispute. Erika Matlock fell while returning to her work station after visiting the restroom. The claim was denied by the administrative law judge and the full Commission, noting that Ms. Matlock was not, at the time of her injury, engaged in employment services. The Commission referenced an earlier decision of the Arkansas Court of Appeals, Beaver v. Benton County, 66 Ark. App. 153 (1999), wherein the Court observed that "the personal comfort doctrine [was] no longer the law." In Matlock, the Court observed that that statement was obiter dictum.

In Matlock the Court provided an excellent review of the decisions addressing the "employment services" requirement of Act 796. Bottom line, it noted that "the fact that a worker is injured while attempting to satisfy a personal need is not, per se, dispositive regarding whether [he/she] was performing employment services when the accident occurred." Rather, the critical inquiry is whether the activity, directly or indirectly, advanced the employer's interests. Applying this test to claimant, the Court noted that "Matlock was manifestly advancing the employer's interests by returning to work after an authorized or permitted rest." Further, that nothing about her conduct suggested a deviation from her employment. The Court observed that Ms. Matlock's brief break from her labor to answer a call of nature did not, for workers' compensation purposes, place her outside the scope of her employment. Accordingly, the matter was remanded to the Commission for an award of appropriate benefits.

Lee J. Muldrow, Wright, Lindsey & Jennings
Phone: 501-371-0808
Fax: lmuldrow@wlj.com

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Moore v. Wausau Insurance Company
In Moore vs. Wausau Ins. Co., the Arkansas Court of Appeals found that a Joint Petition approved by the Arkansas Workers' Compensation Commission was not final since the Joint Petition Settlement Agreement contained language that the respondents would pay outstanding medical expenses up to the date of the Joint Petition hearing without setting a specific amount.  Therefore, the Arkansas Court of Appeals found that the Commission retains jurisdiction for any further proceedings necessary to achieve finality.

In the Moore case, there was an agreement to pay any reasonable medical bills the claimant might have up to the date of the approval of the settlement.  The claimant submitted some bills after the hearing for treatment incurred prior to the hearing, however, the bills were not paid.  The claimant brought a claim in Circuit Court regarding payment of the bills.  The Circuit Court declined to hear the matter and the decision was affirmed by the court of Appeals.

Therefore, this case seems to go against the long standing belief that the Commission loses jurisdiction of the case after it is settled, at least if the settlement agreement is open ended regarding payment of outstanding medical expenses.  This can easily by cured by simply revising the language used in the agreement to state an amount, or to indicate payment of only bills submitted prior to the hearing, or that the claimant is responsible for any outstanding expenses, if any.

Betty Demory, Friday, Eldredge & Clark
Phone:  501-370-3373
E-mail: demory@fec.net

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Sheila Hill Case—Court Overrules AWCC
On June 21, the Arkansas Court of Appeals overturned an AWCC decision which denied benefits to a nurse assistant who injured her back at Baptist Health Medical Center. The plaintiff, Sheila Hill, asserted that the Commission erred by refusing to consider her post-surgical improvement when determining if her back surgery was necessary. The Court of Appeals agreed with Hill that the Commission’s denial of further benefits was not supported by substantial evidence.

Judge John D. Robbins wrote the decision for the court, stating "While the Commission is empowered with the authority to weigh medical evidence and to examine the basis of an expert’s opinion in deciding what weight to give it, it may not arbitrarily disregard the testimony of any witness. It appears to have done just that by disregarding the substantial improvement enjoyed by [Hill’s] post-surgery."

Ms. Hill injured her back on 2/4/99 while taking a psychiatric patient to his room. Following the injury, she had complaints of pain in the lower back and radiating down her left leg and thigh. She was sent to a neurosurgeon, Dr. Anthony Russell, who ordered an MRI. The MRI indicated a herniated disc compressing a nerve root. It was Dr. Russell’s opinion that Ms. Hill’s continued pain did not justify surgery; he noted none of his patients in the last five years who were workers’ compensation claimant’s had gotten any better after surgery.

Instead of surgery, he prescribed pain management and Hill was referred to Dr. Carol Meador who diagnosed a strain of a joint in the lumbar spine. Dr. Meador’s diagnosis did not mention the herniated disc, and she prescribed an injection at the pain site and physical therapy. No further medical care was administered and the workers’ compensation carrier refused to authorize further medical treatment as the carrier said there were "no objective findings." In August, 1999, Dr. Meador released Ms. Hill to work without restrictions, noting that Hill showed exaggerated pain behavior.

Ms. Hill continued with her claim that she could not work because of pain, and in September, 1999, she went to the UAMS Emergency Room and a UAMS professor of neurosurgery, Dr. Fox, recommended surgery. Ms. Hill underwent surgery two days later. Afterwards, she said her pain had significantly lessened and she no longer suffered from falling incidents which had been a problem before surgery due to weakness in her leg.

An ALJ in 12/99 denied Hill’s request for additional TTD, additional medical benefits and attorney’s fees, finding that Hill had not proven that the surgery was reasonable and necessary. Hill appealed the judge’s finding to the Commission, and introduced additional evidence that she had been able to return to work since the hearing, which she said supported the validity of the surgery that she received.

The Commission (in a 2-1 vote) affirmed the judge’s ruling. Then- Commissioner Pat Humphrey dissented, opining that Dr. Russell was biased toward employers’ interests and therefore his opinion deserved little weight. In reversing the Commission’s decision, the Court of Appeals found that the Commission’s finding that surgery was not reasonable and necessary "is not supported by substantial evidence." The court then sent the case back to the AWCC for action consistent with the court’s findings. "We do not believe that fair-minded persons with the same facts before them could have reached the conclusion arrived at by the Commission," Robbins concluded. Judges Wendell L. Griffen and Terry Crabtree agreed with Robbins.

Summarized from the Arkansas Democrat Gazette, June 22, 2001.

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