Maxwell v. Carl Bierbaum, Inc.

James R. Cooper, Judge, dissenting. I dissent because I believe that the Commission erred in concluding that Lyme disease is not a compensable occupational disease. In so concluding, the Commission stated that “[cjommon sense tells you that ticks are found virtually everywhere,” and on this basis reasoned that Lyme disease was merely an ordinary disease of life to which everyone is exposed. This was wrong for several reasons.

First, the Commission resorted to sheer speculation in concluding that the ticks which carry Lyme disease are found everywhere. In fact, it appears that the ticks require certain habitation features and are therefore restricted to specific geographic ranges within the United States. Lyme Disease, 22 ALR 5th 246 , 251 (1994). Cases from other jurisdictions involving the compen-sability of Lyme disease under workers’ compensation statutes have discussed evidence relating to the existence of ticks within the relevant region. See, e.g., Montgomery v. Industrial Commission, 173 Ariz. 106 , 840 P.2d 282 (1992). In the case at bar, however, the Commission’s conclusion was based not on any evidence of the ticks’ range but instead upon “common sense.” Although it is undoubtedly true that we will defer to the Commission’s experience and knowledge when employed to make a finding based on the evidence before it, the Commission’s expertise is not evidence and cannot be substituted for evidence. Lunsford v. Rich Mountain Electric Coop., 38 Ark. App. 188 , 832 S.W.2d 291 (1992). Whether the Commission’s supposition regarding the range of ticks was truly common sense or was instead mere speculation, it was clearly not evidence and should not be permitted to pass as such.

Second, the Commission’s opinion implied that Lyme disease could not be an occupational disease because it was not limited to workers in a single occupation. This, however, is contrary to our prior holdings. In Sanyo Mfg. Corp. v. Leisure, 12 Ark. App. 274 , 675 S.W.2d 841 (1984), we held that the fact that the general public may contract the disease is not controlling, and stated that the test of compensability is whether the nature of the employment exposes the worker to a greater risk of the disease than the risk experienced by the general public or by workers in other employments. Thus, although histoplasmosis is a disease to which the public at large is susceptible, it has been held to be an occupational disease for persons working in the vicinity of poultry houses. Osmose Wood Preserving v. Jones, 40 Ark. App. 190 , 843 S.W.2d 875 (1992). I submit that no reasoned distinction can be drawn between Lyme disease and histoplasmosis so as to require that these diseases, one borne by ticks and the other by poultry, should be treated differently under the occupational disease statute.

Finally, I disagree with the majority’s affirmance on the ground that the Commission found that the appellant was exposed to the infecting tick other than at work. In fact, the Commission made no such finding, but instead merely stated that:

However, testimony was offered that claimant had a yard that had to be sprayed for ticks on a weekly basis, was exposed to two dogs that had to be dipped for fleas and ticks twice a week and lived in a rural community.

The problem with the Commission’s observation is that it is not a finding of fact, but merely a statement regarding what testimony was offered. Instead, a finding of fact is “a simple, straightforward statement of what happened. A statement of what the Board finds has happened; not a statement that a witness, or witnesses, testified thus and so.” The Green House v. Arkansas Alcoholic Beverage Control, 29 Ark. App. 229 , 780 S.W.2d 347 (1989).

I respectfully dissent.

Mayfield, J., joins in this dissent.