dissenting. I would reverse this case and remand for an award of benefits, because I do not believe that Hapney should be denied benefits for an injury to her lower cervical area with trapezus muscle involvement, given the lack of a precise definition of “back injury” in our Workers’ Compensation Statutes.
In pertinent part, Ark. Code Ann. § 11 — 9—102(5) (A)(ii)(b) (Repl. 1996) defines “Compensable injury” as:
(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 treatment notes from Hapney’s doctors indicate that her complaints were of shoulder pain, primarily, with some cervical involvement. The initial diagnosis was right trapezius strain. The trapezius is either of the two large flat triangular muscles running from the base of the occiput, the back part of the skull, to the middle of the back. Eventually, she underwent an MRI of her spine, and it revealed disc herniation at C5-6 and some protrusion at C6-7 that was considered degenerative in nature. The treatment recommended by her physician was a spinal fusion at C5-6.
Mosby’s Medical & Nursing Dictionary defines “back” as “the posterior portion of the trunk of the body between the neck and the pelvis.” It goes on to state, however, that
the back is divided by a middle furrow that lies over the tips of the spinous processes of the vertebrae. The upper cervical vertebrae cannot be felt in this furrow, but the seventh cervical vertebra is easily distinguished just above the more prominent first thoracic vertebra. The skeletal portion of the back includes the thoracic and the lumbar vertebrae and both scapulas.
“Neck” is defined as “a constricted section, at the part of the body that connects the head with the trunk.” However, as is apparent from the anatomical drawing appended to this opinion, this “constricted section” may not appear until well up the cervical spine. Further, the very next entry in Mosby’s, “backache,” defines that malady as “pain in the lumbar, lumbosacral, or cervical regions of the back.” (Emphasis added.) Additionally, the trapezius, the muscle in which Hapney’s pain was first localized, is a muscle primarily of the back that extends to the base of the skull. Therefore, pain in the trapezius from overuse could be attributed to either the back, and be compensable, or the neck, and not be. Clearly, the lay terminology “back injury” does not provide us with a precise definition and renders the subject statutory provision ambiguous.
Although we are required to strictly construe workers’ compensation statutes, Ark. Code Ann. § 1 l-9-704(c) (3) (Repl. 1996), Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998), this does not mean that we should impose a restriction on the scope of “back injury” that the legislature could easily have employed, but did not. The majority concludes that the legislature could have referred to spinal injuries rather than back injuries if it had intended to include the entire spinal column; it can just as easily be said that the legislature could have designated “thoracic” and “lumbar” spinal injuries had it intended to limit compensation to just those areas of the human back or spine.
The Arkansas Supreme Court has recently set forth the standard for review of ambiguous language in a workers’ compensation statute in Wilson v. Timberline Int’l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998), where the court stated:
We begin our reconsideration by noting that the statutory language at issue is ambiguous; we must therefore interpret it using tools of statutory construction. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning. Vanderpool v. Fidelity & Cas. & Inc. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). The basic rale of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Graham v. Forrest City Housing Auth., 304 Ark. 732, 803 S.W.2d 923 (1991). In attempting to ascertain legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, legislative history, and other appropriate matters that shed light on the matter. Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997).
In this regard, Ark. Code Ann. § ll-9-101(b) (Repl. 1996) states in pertinent part: “The primary purposes of the workers’ compensation laws are to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury or disease arising out of and in the course of their employment [.]” That is the stated intent of the legislature, whatever other motives may have entered into the drafting of the specific provisions of the 1993 Act. Although we are sometimes required to turn a blind eye to work-related injuries not included by the legislature in the statutory definition of compensability, Ark. Code Ann. § 11-9-1001 (Repl. 1996); see, e.g. Jobe v. Wal-Mart Stores, Inc., 66 Ark. App. 114, 987 S.W.2d 764 (1999), Coble v. Modern Bus. Sys. 61 Ark. App. 26, 966 S.W.2d 938 (1998), Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997), and Langley v. Danco Constr. Co., 57 Ark. App. 295, 944 S.W.2d 142 (1997), in this instance the majority has done so unnecessarily, and without justification.
In Hapney’s case, the injury she suffered was to the areas of the lower cervical spine, which are as much identified with the trunk or upper back as with the neck. Denying her benefits because they are labeled “cervical” as opposed to “thoracic” is, in this instance, arbitrary and capricious.
Rogers, J., joins.
Appendix:
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