have standing to raise the issue. The Court said that only physicians other than chiropractors had standing to assert these constitutional rights. In Johnson v. Hux 24 , the ourt said that constitutional issues cannot be raised for the first time on appeal to the ourt of Appeals but must be raised first before the Commission. The claimant alleged a violation of due process contending that the Full Commission had made findings of credibility without having the opportunity to observe the manner and demeanor of the witnesses while giving their testimony. Even though the alleged constitutional violation did not occur until the Full COlrtmission issucd it" decision, the Court S<lid that the constitutional issue had to be raised at the Commission level before it could be addressed by the Court. The Court said that the issue could have been raised by Motion to the Full Commission to reconsider within thirty days following the Opinion. CHANGE IN PHYSICAL CONDITION Under Ark. Code Ann. ยงn-9-713 (1987), a claimant who has not made a final settlement in his case n1ay obtain modification of a previous award of cOlnpensation within six (6) months of termination of the compensation awarded if he undergoes a change in physical condition. _ In Tul1crl 1ille P. /uterllntio1JnJ Paper Co. 2:>, the claimant sought modification of a previous award of fifty-five percent (55'0 disability, contending entitlement to permanent total disability based on a change in physical condition since the original award. The Commission concluded that the claimant had undergone a change in physical condition but found the change due to the aging process and not D natural consequence of the injury. The claimant's treating physiciDn had pcrformL-d ~urgery on him since the original award and testified that his worsened condition resulted from the natural process of aging acting upon the c1airnant's injury. The Court reversed the Commission's denial of benefits, saying that fair-minded persons with these facts before them could not say that the claimant's \vorsened condition WilS attributable solely to the aging process. The Court found that the change in physical condition WIlS a naturt11 consequence of the injury and remanded the case to lhe Commission to determine the degree of the clairnant's increase in disability. TEMPORARY TOTAL DISABILITY In COIIIIIII Markeli'. TllOmloll 26 , the Court of Appeals held that, in unscheduled injury cases controlled by Ark. Code Ann. ยง11-9-519 (1987), an employee is not entitled to temporary total disability unless incapacitated, even if the healing period continuc~. In LJ!gncy Lodge ursillg f-1oJllr l'. McKdJar 27 , the Court found substantial evidence to support the Commission's finding that the claimant was entitled to temporary tot<11 disability. PRE-EXISTI
G CONDITIONS
In Cox v. Nashville Livestock CC)//'II,;ssioIl 28 , the Court of Appeals addressed the compensability of medical treatment rendered for unstable angina brought about by the claimant's heavy workload in combination with pre-existing heart disease. I 0 actual darnage to heart cells occurred. The Commission denied benefits based on two previous Court of Appeals cases indicating that angina was n"lerely a symptom of underlying heart disease, and that the production of angina from work efforts is not a compcnsftblc injury within the meaning of the Workers' Compensation Law unless there is actual dama;e to the heart resulting therefrom. Blnck v. Ril'erside Fllrl/itllre Co.29; KI!IIIJJcr's i '. Hnlf 3 . The Court said that its language in Black waS overboard and that the creation of symptoms (rom heart disease by work efforts can be a compensable injury even if no actual physical damage results. Citing Boyd l'. GI!IJi'Yn/lmil/stries 31 , the Court said that "where an on-the-job injury rendered an underlying disease symptomatic, the disability resulting (rom those symptoms may be compensable." EMPLOYEE - I DEPE DE T CONTRACTOR Under Workers' Compensation Law, employees arc entitled to benefits for workrelated injury while independent contractors are not. The Court of Appeals considered the employee-independent contractor distinction in Wriglit P. 1)/5011 Foods 32 . Citing Fmllklill v. Arkallsas Kmfl, IIIC 33 , the Court listed the following nine (9) faclors which may be considered in determining whether a claimant is an employee or independent 3 2
ARKANSAS
LAWYER
JANUARY
1990