dissenting. I fully agree with the majority’s analysis and discussion of this appeal, except, however, for its failure to address our recent decision in Weaver v. Nabors Drilling USA, 98 Ark. App. 161, 253 S.W.3d 30 (2007). While I disagreed with the majority’s opinion when Weaver was decided, that decision was published and is now precedent. Although Weaver had not been decided on March 7, 2007, when we delivered our initial opinion in the instant case, a timely petition for rehearing was filed and I do not think that we now may, or should, ignore its existence.
Because I believe that Weaver, which decision is discussed in Judge Bird’s dissent, requires a reversal of this appeal, I would grant rehearing.
Sam Bird, Judge,dissenting. I would grant appellants’ petition for rehearing and would reverse the Commission’s finding that this claim is compensable. I believe that this court has erred as a matter of law and fact in upholding the Commission’s finding that Knight sustained a compensable specific-incident injury rather than a noncompensable idiopathic injury.
A pre-hearing order reflects that Knight abandoned an alternate claim for a gradual-onset injury and contended only that he suffered a compensable injury to his left knee on July 1, 2004. Cedar Chemical responded that Knight did not sustain a specific trauma associated with his employment and that any injury he did sustain was not the major cause of his condition. The Commission found that the employment conditions of repeatedly walking up and down the stairs contributed to Knight’s knee injury. Also noting a doctor’s opinion that Knight’s “torn medial meniscus resulted from his recent work injury” and finding Knight’s testimony credible that his knee pain began while descending the stairs at around 11:00 a.m., the Commission found that the injury was not personal in nature and did not result from his degenerative disease, but was a specific-incident workplace injury arising out of and in the course of employment. This court has affirmed the Commission’s opinion.
I believe that it is incongruous with our case law to classify Knight’s onset of pain around 11:00 a.m. while walking down stairs as a specific-incident injury. Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2005) defines compensable injury as “an accidental injury causing internal or external physical harm .. . arising out of and in the course of employment.... An injury is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence.” The phrase “arising out of the employment” refers to the origin or cause of the accident, while the phrase “in the course of the employment” refers to the time, place, and circumstances under which the injury occurred. Swaim v. Wal-Mart Assocs., Inc., 91 Ark. App. 120, 208 S.W.3d 837 (2005).
In Crawford v. Single Source Transportation, 87 Ark. App. 216, 189 S.W.3d 507 (2004), the claimant stepped down from an elevated position in his truck, his knee buckled, he fell, and he experienced immediate pain and rapid swelling; his twisting/flexion knee injury was a specific-incident injury and, because employment conditions contributed to the injury, it could not be considered a noncompensable idiopathic injury. In Swaim v. Wal-Mart, supra, the claimant felt his foot pop while he was pulling a heavy pallet; the resulting fracture was a compensable specific-incident workplace injury rather than a noncompensable idiopathic injury. In ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998), where the supreme court affirmed the Commission’s finding of a compensable idiopathic fall, there was evidence of a specific incident of trauma when the claimant fell from scaffolding while he was working on a building demolition.
Conversely, in Hapney v. Rheem Manufacturing Co., 342 Ark. 11, 26 S.W.3d 111 (2000), no specific incident occurred where the claimant did not know how her neck was injured, did not recall anything specific happening, and did not tell her treating physician that her pain was associated with any particular, specific incident.1 In Weaver v. Nabors Drilling USA, 98 Ark. App. 161, 253 S.W.3d 30 (2007), we upheld the Commission’s finding of no specific incident although medical records stated that the claimant was at work when he first felt symptoms in his hands, he testified that his hands tingled and burned while he was “mixing mud” at work and lifting and carrying a mud sack, and no one denied that he identified the approximate time and date when he first noticed the symptoms at work. Noting the Commission’s province to determine credibility, we wrote: “He could have easily injured himself the day before, weeks before, or during his 1995 fall. . . . He only proved that he had [a neck] injury and that he felt pain while at work — he failed to show that a specific incident occurred at work.” Id. at 163, 253 S.W.3d at 32.
In my view, it is an error of law and fact to hold that Knight’s experiencing knee pain around 11:00 a.m. while descending the stairway was a specific incident of trauma when there was no accidental event or apparent cause of injury occurring at the workplace to cause his pain. Testimony regarding the time, place, and circumstances of Knight’s pain and swelling goes to “the course of employment” but does not satisfy the additional statutory requirement that an injury is “accidental” only if it is caused by a specific incident. The evidence simply does not identify a specific incident such as the ones in Crawford v. Single Source Transportation, Swaim v. Wal-Mart, or ERC Contractor Yard & Sales v. Robertson. Today our court holds that the onset of pain, rather than being the result of a specific incident, constitutes the specific incident itself. I believe this to be an error of law.
Furthermore, this court’s review of evidence supporting the Commission’s decision fails to acknowledge a factual error by the Commission. The medical record in this case, which is included in the addendum to Knight’s brief, shows that Dr. Hahn opined “that Knight’s torn medial meniscus was related to his recent injury.” This court presents Dr. Hahn’s words from the medical record as evidence that supports the Commission’s decision. The Commission’s reference to his opinion, however, includes a factual error:
In a letter dated October 16, 2002, Dr. Hahn opined that the claimant’s torn medial meniscus resulted from his recent work injury.
Considering Dr. Hahn’s expert opinion and in light of the claimant’s credible account of the incident, the Full Commission finds that there is insufficient evidence to support a finding that the injury suffered by the claimant was personal in nature, as it was caused while descending the steps of his unit.
(Emphasis added.) Clearly, the word “work” does not appear in Dr. Hahn’s actual statement that Knight’s condition was “related to recent injury.”
This court fails to acknowledge that the Commission cited a medical opinion that does not exist, a factual error that I believe requires at least that this case be remanded for proper consideration of Dr. Hahn’s opinion. The Commission and this court also fail to acknowledge Dr. Azar’s notation of August 14, 2001, that Knight reported significant knee pain after climbing the stairs at work but had “no specific injury” and that his x-rays showed the presence of “tricompartmentai degenerative changes.” Thus, our opinion contains errors of fact.
I do not agree that Knight’s injury differs significantly from that in Whitten v. Edward Trucking, 87 Ark. App. 112, 189 S.W.3d 82 (2004), the case in which we affirmed the Commission’s decision that a truck driver suffered a noncompensable idiopathic fall. Whitten was walking up stairs to his employer’s office, reached for the door, felt pain in his back, and fell; he neither tripped nor stumbled, nor was he carrying anything heavy. The Commission found that he was not engaged in a work-related activity at the time of the fall, that there was insufficient evidence of an employment risk as the cause of injury, and that the fall was idiopathic, stemming from one or more of three diagnosed medical conditions. Here, there was evidence that there were degenerative changes in Knight’s knee, that Knight had previously undergone knee surgery, and that he had recently hyperextended his knee, any or all of which could have caused the symptom of pain that occurred while he was walking on the stairway.
Again, the evidence is insufficient to support a finding that Knight’s injury was caused by a specific incident and that it arose out of his employment. I would reverse the finding of specific-incident injury and would find that an idiopathic injury occurred. In the absence of a specific injury, it was Knight’s burden to prove that his idiopathic injury was compensable within our workers’ compensation law. I would remand this case to the Commission with instructions that it consider all relevant evidence, including employment conditions and Knight’s medical history, for determination of the compensability of the idiopathic injury.
For the reasons stated above, I dissent to the denial of the petition for rehearing.
Hapney’s cervical injury was compensable as a rapid repetitive motion injury under Arkansas Annotated Code section 11-9-102(4). See id. At 17,26 S.W.3d at 780 (summarizing evidence that she bent her neck more than three times a minute during her ten-hour shift on the assembly line).