Opinion
CLAIM NO. E702806
OPINION FILED JULY 29, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by WILLIAM J. KROPP, III, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by DOUGLAS M. CARSON, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] Both parties appeal an opinion of the Administrative Law Judge filed on September 29, 1997.The only issues on appeal are whether claimant sustained a compensable injury and whether claimant is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a) (Repl. 1996). Following our de novo review of the entire record, we find that claimant has proven by a preponderance of the credible evidence that he sustained a compensable unexplained fall. Additionally, we find that claimant has failed to demonstrate entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505(a). Accordingly, the decision of the Administrative Law Judge must be affirmed.
In October or November of 1996, claimant was hired by respondent employer to drive a concrete truck. The performance of certain maintenance duties was mandated by respondent employer. At the end of the day, drivers were required to fuel and wash their trucks. Brushes and high pressure hoses were used to clean the trucks. On December 7, 1996, which was a Saturday, claimant was called into work. After delivering one load of concrete, he returned to the employer's premises to clean his truck. As he stood on a platform cleaning the truck's hopper, claimant experienced brief periods of dizziness. Claimant testified that he turned away from the truck barrel, which was spinning, in an effort to stop the dizziness. That is claimant's last recollection before regaining consciousness on the ground. He testified that emergency medical personnel placed him on a stretcher, and he was lifted into an ambulance. He stated that he was disoriented when initially questioned by ambulance personnel. According to claimant's testimony, he was told he was found in a drainage ditch.
Claimant was transported to St. Edward's Hospital where he was admitted. Several tests were performed, including an EEG, MRI, and CT, the results of which were normal. A drug screen was also performed, and this test was negative as well. Claimant sustained an abrasion to his forehead as a result of the fall. He was discharged from the hospital on December 9, 1996.
Claimant attempted to return to work. However, respondent employer informed him that since his tests were negative, there was no job for him to perform. Claimant resumed work as a truck driver for another company on January 6, 1997.
On cross-examination, claimant acknowledged that he could not state whether he was standing on the truck or on the ground when he lost consciousness. In a statement to the adjuster investigating his claim, he described an incident that occurred on Thanksgiving. Claimant explained that upon returning home from Thanksgiving dinner at the home of a relative, he decided to take a nap. Claimant climbed into bed fully clothed, and placed an electric blanket over his body. He stated that his spouse had difficulty rousing him. However, after placing a cool wash cloth upon his face and removing the blankets, he awoke. It is claimant's testimony that he was simply in a very deep sleep. Claimant stated that there were no similarities whatsoever between the foregoing incident and his fall at work.
William Scarborough, Director of Human Resources, also testified at the hearing. He stated that respondent has approximately 250 people employed in ten to twelve plants in the state of Arkansas. Approximately 150 employees worked in and around the county where claimant worked. The facility where claimant worked had about 50 employees. Scarbrough stated that in addition to truck drivers, respondent employer also hired dispatchers, mechanics, loader operators, a maintenance employee to service the trucks, and "batch men" who are responsible for operating the plant's computer system. Scarborough stated that since December of 1996, only truck drivers have been hired at this particular facility. He testified that except for truck drivers, jobs are usually filled through a bidding process. He admitted that it was possible that employees had changed jobs at the facility without his knowledge since December of 1996. Scarborough testified that respondent employer has hired workers to perform jobs other than truck driving since claimant's separation. However, an offer of employment was never extended to claimant.
Scarborough testified that following claimant's accident, an internal investigation was conducted. The company concluded that claimant suffered a blackout and a possible epileptic seizure. Therefore, Scarborough determined that claimant was no longer qualified to work for the company. He explained that the decision was based on U.S. Department of Transportation (D.O.T.) regulations. Scarborough testified that a person with an established history of epilepsy or other medical condition which causes a loss of consciousness would not qualify to drive a commercial vehicle subject to D.O.T. regulations. Scarbrough testified that due to claimant's job classification, he was subject to D.O.T. regulations. He stated that based on his assessment of claimant's fitness for duty, it was unnecessary to send claimant for another D.O.T. physical.
Grant Fry, a former employee of respondent employer, testified on behalf of respondents. He stated that his truck was parked next to claimant's so that it could be washed. He stated he observed claimant washing the back of his truck with a brush. He testified that during that period of time, claimant's hose was not running. Fry took a hose and went to the driver's side of his truck. His view of claimant was obstructed by the truck. However, when Fry returned to the back of the truck, claimant's hose was on and he was unconscious on the ground. He stated that claimant was foaming at the mouth and his body was jerking. Fry testified that claimant's body was not directly behind the truck. Rather, he was positioned at the back corner of the truck on the passenger's side. It is the testimony of Mr. Fry that it would be dangerous to use the high pressure hose while standing on the truck.
On cross-examination, Fry acknowledged that for a three to four minute period, he did not see claimant at all because the truck blocked his view. He stated that claimant had sufficient time to climb atop the truck during that time span.
Lowell Johnson, a ready mix driver for respondents also testified on their behalf. He stated that although he was present on the date of claimant's accident, he did not witness the fall. He stated that Fry notified him that claimant had had an accident. Johnson testified that claimant was positioned approximately ten feet from his truck.
With regard to the truck cleaning process, Johnson testified that because of the bulk of the high pressure hoses, it would be unusual to use a brush and a hose simultaneously. He stated that the hose is used while an employee is standing on the ground.
Donald (D.J.) Lincks, Plant Manager, testified that he was not working when claimant's injury occurred; however, he was notified of the incident and proceeded to the emergency room. He testified that he questioned claimant regarding the accident. Lincks stated that claimant recounted the dizziness he experienced. However, claimant also indicated that he had no further recollection of the incident until he awoke with his co-workers surrounding him. Lincks testified that claimant responded negatively when asked whether he had fallen off the truck. He stated that he had no further communication with a claimant after their discussion in the hospital. The medical evidence in this case reveals that upon admission, the etiology of claimant's syncopal episode was unclear. In a hospital discharge summary, Dr. Dale Asbury offered the following assessment of claimant's condition: "[s]yncopal episode felt to be most consistent with a viral illness, orthostatic in nature. There is no history of seizure disorder in the past nor is there nothing [sic] to support a seizure at this point in time. There is no intra cranial pathology."
The distinction between idiopathic and unexplained falls was described by the Court of Appeals in Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d. 496 (1987):
When one suffers an injury at work, the cause is, obviously, either known or unknown. Larson's treatise on workers' compensation law states that the most common example of a situation in which the cause of the harm is unknown is the unexplained fall in the course of employment and that most courts confronted with that situation have seen fit to award compensation. However, injuries from idiopathic falls do not arise out of the employment unless the employment contributes to the risk or aggravates the injury by, for example, placing the employee in a position which increases the dangerous effect of the fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
The word "idiopathic" is defined in Webster's Third New International Dictionary, Unabridged (1976), as (1) peculiar to the individual, (2) arising spontaneously or from an obscure or unknown cause. Although the two concepts are frequently confused, Larson says "unexplained-fall cases begin with a completely neutral origin of the mishap, while idiopathic fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie showing of personal origin." (Citations omitted).
Claimant testified that he became dizzy watching the rotation of the hopper. This is his last recollection before losing consciousness. Claimant may well have informed Mr. Lincks that he did not fall from the truck. However, his testimony indicates that he was standing on the truck prior to his fall. The claimant was injured on the job site while performing his work task and it is unimportant to the conclusion of this case whether the claimant fell from the truck or fell on the ground. Claimant simply has no memory of how the fall happened. Accordingly, we find claimant's testimony to be credible. It is the Commission's role to determine the credibility of witnesses and the weight their testimony should be afforded. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995).
In their brief, respondents argue that there is a correlation between the incident which occurred in claimant's home on Thanksgiving and the episode at work. However, we do not find this argument to be persuasive. Losing consciousness is not synonymous with awakening from a deep sleep. It is important to note that all tests conducted during claimant's hospitalization were normal. Further, there is no evidence that claimant was behaving abnormally during the time period preceding the fall. In the discharge summary, Dr. Asbury theorizes that claimant's syncopal episode is "most consistent with a viral illness." However, this is merely speculation in view of claimant's negative test results and the absence of any seizure activity. See, Little Rock Conv. Visitor's Bur. v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997). Therefore, we find that the greater weight of the evidence indicates that claimant sustained a compensable unexplained fall.
With regard to claimant's request for benefits pursuant to Ark. Code Ann. § 11-9-505(a) we find that claimant has failed to prove entitlement to such benefits. Claimant contends that he is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) which provides:
Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee's physical and mental limitations, upon order of the Commission, and in addition to other benefits, shall be liable to pay the employee the difference between benefits received and the average weekly wage lost during the period of such refusal, or for a period not exceeding one year.
In order to establish his claim for additional benefits under this section, claimant has the burden of proving that the following four requirements are met:
(1) That he sustained a compensable injury;
(2) That suitable employment within the claimant's physical and mental limitations was available with his employer;
(3) That the employer refused to return him to work;
(4) That the employer's refusal to return the claimant to work was without reasonable cause.
See Edward Torrey v. City of Ft. Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996). In Torrey, supra the Courts stated that:
At a minimum Ark. Code Ann. § 11-9-505(a) requires that when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entrance into the work force by offering additional training to the employee, if needed, and reclassification of positions, if necessary.
In our opinion, claimant has failed to prove by a preponderance of the credible evidence that respondent's refusal to return him to work was without reasonable cause. As outlined in William Scarborough's testimony, respondent did not extend an offer of employment or re-employment to claimant due to the Department of Transportation regulations. These regulations prohibit a person with an established history of epilepsy or other medical condition which causes a loss of consciousness from driving over the road vehicles. In claimant's position as a cement truck driver, he was subject to the DOT regulations. Whether claimant reported his syncopal episode to his physician or the physician conducting the DOT fitness exam, respondent was aware of this episode since it occurred during claimant's employment. In our opinion, it is not unreasonable for respondent to be concerned about claimant's safety and the safety of the public at large. With its knowledge of claimant's syncopal episode, respondent could not, in good conscious, place claimant behind the wheel of one of its vehicles. In our opinion, respondent's refusal was reasonable in light of its knowledge of claimant's condition and the federal regulations placed upon respondent. Since respondent's only positions which were vacant or available positions were ones which required compliance with the DOT regulations, we find that claimant has failed to prove by a preponderance of the evidence that respondent unreasonably refused to return claimant to work. Claimant has simply failed to prove that there were any jobs available for which he was qualified. Therefore, we find that claimant has failed to prove by a preponderance of the evidence that respondent's refusal was unreasonable since we find that the greater weight of the evidence indicates that respondent acted reasonably in its refusal given its knowledge of claimant's recent black out.
Accordingly, after conducting a de novo review of the record, we find that claimant has demonstrated by a preponderance of the evidence that he sustained a compensable unexplained fall. We further find that claimant has failed to prove that he is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a) (Repl. 1996). Based on the foregoing, we find that the Administrative Law Judge's decision must be affirmed.
All accrued benefits shall be payable in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision pursuant to Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (1996).
IT IS SO ORDERED.
PAT WEST HUMPHREY, Commissioner
MIKE WILSON, Commissioner
CONCURRING AND DISSENTING OPINION
[27] An administrative law judge entered an opinion and order on September 29, 1997, finding that: (1) claimant sustained a compensable unexplained fall; (2) claimant is entitled to temporary total disability benefits from December 8, 1996, through January 6, 1997; and (3) claimant failed to demonstrate entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505 (a) (Repl. 1996). Both parties have appealed portions of the administrative law judge's decision. I would affirm in part and reverse in part the decision of the administrative law judge.In October or November of 1996, claimant was hired by respondent employer to drive a concrete truck. The performance of certain maintenance duties was mandated by respondent employer. At the end of the day, drivers were required to fuel and wash their trucks. Brushes and high pressure hoses were used to clean the trucks. On December 7, 1996, which was a Saturday, claimant was called into to work. After delivering one load of concrete, he returned to the employer's premises to clean his truck. As he stood on a platform cleaning the truck's hopper, claimant experienced brief periods of dizziness. Claimant testified that he turned away from the truck barrel, which was spinning, in an effort to stop the dizziness. That is claimant's last recollection before regaining consciousness on the ground. He testified that emergency medical personnel had placed him on a stretcher, and he was lifted into an ambulance. He stated that he was disoriented when initially questioned by ambulance personnel. According to claimant's testimony, he was told he was found in a drainage ditch.
Claimant was transported to St. Edward's Hospital where he was admitted. Several tests were performed, including an EEG, MRI, and CT the results of which were normal. A drug screen was also performed, and this test was negative as well. Claimant sustained an abrasion to his forehead as a result of the fall. Upon his discharge from the hospital on December 9, 1996, no restrictions were imposed. However, claimant was advised to rest when he became fatigued. The hospital discharge summary reflects that claimant was released to return to work effective December 11, 1996. Claimant obtained no additional medical treatment following his release from the hospital.
Claimant attempted to return to work. However, the area supervisor informed him that since his tests were negative, there was no job for him to perform.
Claimant resumed work as a truck driver for another company on January 6, 1997.
On cross-examination, claimant acknowledged that he is unsure whether he was standing on the truck or on the ground at the time that he lost consciousness.
Moreover, in his oral statement to the adjuster investigating his claim, claimant explained that upon returning home from Thanksgiving dinner at the home of a relative, he decided to take a nap. Claimant climbed into bed fully clothed. He stated he placed an electric blanket over his body. He testified that his spouse had difficulty rousing him from a slumber. However, after placing a cool wash cloth upon his face and removing the blankets, he awoke. It is claimant's testimony that he was simply in a very deep sleep. Claimant testified that there were no similarities whatsoever between the foregoing incident and his fall at work.
Mr. William Scarborough, Director of Human Resources also testified at the hearing. He stated that respondent has approximately ten to twelve plants in the state of Arkansas. Those facilities employ a total of about 250 people. Approximately 150 employees worked in and around the county where claimant worked. Scarborough testified that at the south side ready mix facility where claimant worked there was 50 employees. He stated that in addition to truck drivers, respondent employer also hired dispatchers, mechanics, loader operators, a maintenance employee to service the trucks, and "batch men" who are responsible for operating the plant's computer system. Scarborough stated that since December of 1996, only truck drivers have been hired at the south side facility. He testified that although this procedure is inapplicable to truck drivers, the other jobs are usually obtained through a bidding process. He admitted that it was possible that employees had changed jobs at the south side facility without his knowledge since December of 1996. Scarborough testified that respondent employer has hired workers to perform jobs other than truck driving since claimant's separation. However, an offer of employment was never extended to claimant.
Scarborough testified that following claimant's accident, an internal investigation was conducted. The company concluded that claimant suffered a blackout and a possible epileptic seizure. Therefore, Scarborough determined that claimant was no longer qualified to work for the company. He explained that the decision was based on U.S. Department of Transportation (D.O.T.) regulations. Scarborough testified that a person with an established history of epilepsy or other medical condition which causes a loss of consciousness would not qualify to drive a commercial vehicle subject to D.O.T. regulations. He stated that using common sense, anyone would be able to determine if an individual had an unexplained blackout. He testified that based on his assessment of claimant's fitness for duty, it was unnecessary to send claimant for another D.O.T. examination.
Mr. Grant Fry, a former employee of respondent employer, testified in behalf of respondents. He stated that his truck was parked next to claimant's so that it could be washed. He stated he observed claimant washing the back of his truck with a brush. He testified that during that period of time, claimant's hose was not running. Fry took a hose and went to the driver's side of his truck. His view of claimant was obstructed by the truck. However, when Fry returned to the back of the truck, claimant's hose was on and he was unconscious on the ground. He stated he approached claimant, and he was foaming at the mouth and his body was jerking. Fry testified that claimant's body was not directly behind the truck. Rather, he was position at the back corner of the truck on the passenger's side. It is the testimony of Mr. Fry that it would be dangerous to use the high pressure hose while standing on the truck.
On cross-examination, Fry acknowledged that for a three to four minute period, he did not see claimant at all because the truck blocked his view. He stated that claimant had sufficient time to climb atop the truck during that time span during which he was unobserved.
Mr. Lowell Johnson, a ready mix driver for respondents also testified on their behalf. He stated that although he was present on the date of claimant's accident, he did not witness the fall. He stated he became aware of claimant's condition when Fry came to his truck and explained the situation. He testified that claimant was positioned approximately ten feet from his truck. He stated claimant was at the right rear of the truck and lying on his back. Claimant's feet were positioned closest to the truck. With regard to the truck cleaning process, Johnson testified that because of the bulk of the high pressure hoses, it would be unusual to use a brush and a hose simultaneously. He stated that the hose is used while an employee is standing on the ground.
Mr. Donald (D.J.) Lincks, Plant Manager, testified that he was not working when claimant's injury occurred; however, he was notified of the incident and proceeded to the emergency room. He testified that he questioned claimant regarding the accident. Lincks stated that claimant recounted the dizziness he experienced. However, claimant also indicated that he had no further recollection of the incident until he awoke with his co-workers surrounding him. Lincks testified that claimant responded negatively when asked whether he had fallen off of the truck. He stated that he had no further communication with a claimant after their discussion in the hospital. The medical evidence in this case reveals that upon admission, the etiology of claimant's syncopal episode was unclear. In a hospital discharge summary prepared by Dr. Dale Asbury, he offers the following assessment of claimant's condition: "[s]yncopal episode felt to be most consistent with a viral illness, orthostatic in nature. There is no history of seizure disorder in the past nor is there nothing [sic] to support a seizure at this point in time. There is no intra cranial pathology."
The distinction between idiopathic and unexplained falls was described by the Court of Appeals in Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d. 496 (1987):
When one suffers an injury at work, the cause is, obviously, either known or unknown. Larson's treatise on workers' compensation law states that the most common example of a situation in which the cause of the harm is unknown is the unexplained fall in the course of employment and that most courts confronted with that situation have seen fit to award compensation. However, injuries from idiopathic falls do not arise out of the employment unless the employment contributes to the risk or aggravates the injury by, for example, placing the employee in a position which increases the dangerous effect of the fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
The word "idiopathic" is defined in Webster's Third New International Dictionary, Unabridged (1976), as (1) peculiar to the individual, (2) arising spontaneously or from an obscure or unknown cause. Although the two concepts are frequently confused, Larson says "unexplained-fall cases begin with a completely neutral origin of the mishap, while idiopathic fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie showing of personal origin." (Citations omitted).
Claimant testified that he became dizzy watching the rotation of the hopper. This is his last recollection before losing consciousness. Claimant may well have informed Mr. Lincks that he did not fall of the truck. However, his testimony indicates that he was standing on the truck prior to his fall. In my opinion, these statements are not necessarily inconsistent. Claimant simply has no memory of how the fall happened. Accordingly, I find claimant's testimony to be credible. It is the Commission's role to determine the credibility of witnesses and the weight their testimony should be afforded. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995).
In their brief, respondents argue that there is a correlation between the incident which occurred in claimant's home on Thanksgiving and the episode at work. In my opinion, this argument has no merit. Losing consciousness is not synonymous with awakening from a deep sleep. I am persuaded that claimant sustained a compensable unexplained fall. It is important to note that all of the tests conducted during claimant's hospitalization were normal. Further, there is no evidence that claimant was behaving abnormally during the time period preceding the fall. In the discharge summary, Dr. Asbury theorizes that claimant's syncopal episode is "most consistent with a viral illness." However, this is merely speculation in view of claimant's negative test results and the absence of any seizure activity. See, Little Rock Conv. Visitor's Bur. v. Pack, 59 Ark. App. ___, ___ S.W.2d ___ (1997).
Claimant also contends that he is entitled to receive benefits in accordance with Ark. Code Ann. § 11-9-505 (a (Repl. 1996). In Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996), the Arkansas Court of Appeals held that in order to be entitled to benefits in accordance with Ark. Code Ann. § 11-9-505 (a) (Repl. 1996), claimant must prove:
(1) the occurrence of a compensable injury;
(2) the availability of suitable employment with the employer within the employee's physical and mental limitations;
(3) the employer's refusal to return the employee to work; and,
(4) the absence of reasonable cause for the employer's refusal to return the employee to work.
In this case, claimant sustained a compensable injury. Respondent employer employs approximately 250 workers within the state of Arkansas. Moreover, other job classifications exist. Mr. Scarborough testified that after it was determined by the company that it was unsafe for claimant to return to work as a truck driver, no other offer of employment was extended.
The concern expressed by respondents regarding safety is certainly understandable. However, it should be noted that claimant was released without restrictions. Further, no effort was made to determine whether claimant could pass a D.O.T. physical. An assumption was made that he could not drive a truck based on respondent employer's interpretation of D.O.T. rules. Assumingarguendo that claimant could not immediately return to his job as a cement truck driver, this does not automatically absolve respondents of liability for § 11-9-505(a) benefits. Respondents suggest otherwise on appeal, arguing that their refusal to return claimant to work was reasonable in view of the safety issue. However, in Torrey, the Arkansas Court of Appeals considered the meaning of reasonable cause:
At a minimum Ark. Code Ann. § 11-9-505 (a) requires that when an employee who has suffered some compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entry into the work force by offering additional training to the employee if need, and reclassification of positions, if necessary.
Respondent employer made no effort whatsoever to facilitate claimant's re-entry into the work force. In my opinion, respondent employer's refusal to return claimant to work was unreasonable. Therefore, he is entitled to § 11-9-505 (a) benefits beginning December 11, 1996, and ending January 5, 1997.
CONCURRING DISSENTING OPINION
[50] Although I concur with the principal opinion finding that claimant has failed to prove entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505(a), I must respectfully dissent from the principal opinion finding that claimant sustained a compensable injury.In my opinion, the circumstantial evidence preponderates in favor of a finding that claimant was on the ground when he fell. As explained by claimant's co-workers, claimant was 10 feet away from the truck and the water hose was on. Based upon Mr. Frye and Mr. Johnson's description of the truck washing procedure, I find it unlikely that claimant was on the back of the truck with the water hose on. Moreover, if claimant fell off this truck, he should have been found lying closer to the truck, not 10 feet away. In my opinion, all evidence preponderates in favor of a finding that claimant was actually on the ground at the time of his fall.
Claimant did not know where he was at the moment he fell to the ground, whether he fell to the ground on the ground or whether he fell to the ground from some location on the truck. Moreover, claimant's co-worker's, Grant Frye and Lowell Johnson explained that it would be illogical for claimant to actually have the water hose in his hand while standing on the truck. In my opinion, this is a clear case of an idiopathic fall, peculiar only to the claimant.
Arkansas Courts have held that where a claimant suffers an unexplained injury at work it is compensable. In contrast, when a claimant suffers an idiopathic injury it is not compensable because such an injury is considered personal in origin and would not, therefore, arise out of and in the course of the employment. The Arkansas Court of Appeals explained this distinction in Moore v. Darling Store Fixtures, 22 Ark. App. 21 732 S.W.2d 496 (1987);
When one suffers an injury at work, the cause is, obviously, either known or unknown. Larson's treatise on workers' compensation law states that the most common example of a situation in which the cause of the harm is unknown is the unexplained fall in the course of employment and that most courts confronted with that situation have seen fit to award compensation. However, injuries from idiopathic falls do not arise out of the employment unless the employment contributes to the risk or aggravates the injury by, for example, placing the employee in a position which increased the dangerous effect of the fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
The word "idiopathic" is defined in Webster's Third New International Dictionary, Unabridged (1976), as (1) peculiar to the individual, (2) arising spontaneously or from an obscure or unknown cause. Although the two concepts are frequently confused, Larson says "unexplained fall cases begin with a completely neutral origin of the mishap, while idiopathic fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie showing of personal origin." (Citations omitted.)
Moore, 22 Ark. App. At 25, 732 S.W.2d at 498.
A review of the medical records indicate that while the etiology of claimant's syncopal episode was initially felt to be uncertain, at the time of his discharge claimant's physicians noted "Syncopal episode felt to be consistent with a viral illness, orthostatic in nature." Obviously, a viral illness is clearly an admittedly personal condition of the claimant and has no affirmative employment contribution. Furthermore, the evidence reveals that claimant was not placed in a greater risk by being on his truck, since all circumstantial evidence points to a finding that claimant was actually on the ground when he fell. Moreover, although claimant intimated at the hearing that the cause of his fall was watching the hopper spin, claimant's treating physicians did not find this theory plausible. It is noted that claimant provided his physicians with a history of "washing a revolving spinning concrete truck" the physicians did not place any emphasis on this history in concluding that claimant's syncope episode resulted from claimant's viral illness. Furthermore, Mr. Frye explained that the hopper was just barely spinning which would cast doubt on any argument that it was spinning fast enough to cause one to become dizzy. In my opinion, claimant's episode is clearly a classic idiopathic fall which is not compensable.
Accordingly, for those reasons set forth herein, it is my opinion that claimant has failed to prove that he sustained a compensable injury. Therefore, I must respectfully dissent from this finding in the principal opinion.