Summary
In Moser v. Arkansas Lime Company, 40 Ark. App. 108, 842 S.W.2d 456 (1992), we came to the same conclusion. There the claimant was a sixty-two-year-old laborer with a fifth-grade education who had lost the use of his right eye.
Summary of this case from Patterson v. Arkansas Department HealthOpinion
[40 Ark.App. 113-B] J. Scott Davidson, Batesville, for appellant.
Charles Gshwend, Jr., Little Rock, for appellee.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
COOPER, Judge.
The appellee has petitioned for rehearing of our decision in this case. We deny the appellee's petition, and we issue this supplemental opinion to explain our reasons for doing so.
The appellee contends that our December 9, 1992, 40 Ark.App. 108, 842 S.W.2d 456, opinion was erroneous because, the appellee asserts, we "made a finding of fact that the claimant was within the 'odd lot' category," and that, by permitting the appellant to raise the odd-lot doctrine at the appellate level, we gave the appellees no opportunity to present evidence to satisfy their burden of proof, and thereby denied them due process. We disagree for several reasons.
While it is true that it is the function of the Commission, and not the appellate courts, to act as fact finder in workers' compensation cases, see Ark.Code Ann. § 11-9-711 (1987), it is also true that it is the duty of the appellate court to reverse the Commission's decision when convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Franklin Collier Farms v. Chapple, 18 Ark.App. 200, 712 S.W.2d 334 (1986). The reviewing court must set aside the Commission's decision when it cannot conscientiously find from a review of the entire record that the evidence supporting the decision is substantial; in this context, substantial evidence has been defined as more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark.App. 215, 756 S.W.2d 128 (1988). We take this opportunity to clarify our opinion of December 9, 1992, by stating that our decision was not based on a finding that the appellant was within the odd-lot category, but was instead based on our conviction that, on the evidence before the Commission, reasonable men could not conclude that the appellant was not within the odd-lot category of workers.
Nor do we find merit in the appellees' contention that our application of the odd-lot doctrine on appeal deprived it of an opportunity to present evidence on this issue. It should be noted [40 Ark.App. 113-C] that the appellant in this case suffered a scheduled injury. See Ark.Code Ann. § 11-9-521(c) (1987). Such injuries differ from unscheduled injuries in that the award for a scheduled injury generally is limited to the benefits provided for that particular scheduled injury. Rash v. Goodyear Tire and Rubber Co., 18 Ark.App. 248, 715 S.W.2d 449 (1986). However, as long ago as 1966, the Arkansas Supreme Court held that the benefits for scheduled injuries are not limited to the schedule when the scheduled injury results in permanent total disability. McNeely v. Clem Mills&sGin Co., 241 Ark. 498, 409 S.W.2d 502 (1966); see also Johnson Construction Co. v. Noble, 257 Ark. 957, 521 S.W.2d 63 (1975). Given that, in scheduled injury cases, the nature of the injury is fixed, the finding of permanent and total disability under such circumstances necessarily hinges on factors, such as those described in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), which bear on the claimant's age, education, experience, and other matters affecting wage loss. For example, in McNeely, supra, the discussion is directed at the effect of the scheduled injury in light of circumstances peculiar to the particular claimant, the Court noting that "the award for the loss of one hand is compensation for 150 weeks, despite the fact that such an injury might be totally disabling to a musician, a surgeon, or a watchmaker, and not at all disabling to a lawyer, a stockbroker, or an educator." McNeely, supra, 241 Ark. at 500, 409 S.W.2d 502.
In 1979, Judge Newbern, writing for the Court of Appeals, quoted with approval Professor Larson's formulation of the odd-lot doctrine and employed the doctrine in determining that a finding of total disability was supported by substantial evidence. M.M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark.App.1979). As quoted in Haile, supra, the odd-lot doctrine provides that:
If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant.
Haile, supra, 267 Ark. at 736, 589 S.W.2d 600.
[40 Ark.App. 113-D] Given these decisions, we think it clear that, for more than a decade, employers have been on notice that an employee with a scheduled injury who claims to be permanently and totally disabled will necessarily be presenting proof of wage-loss factors such as mental capacity, education, training, or age, and that a sufficient showing by the claimant will require the employer to show that suitable work is available on a regular and continuous basis. Here, the appellee knew that the appellant was making a claim for total and permanent disability prior to the hearing, and as such was on notice that the odd-lot doctrine was at issue. Walker Logging v. Paschel, 36 Ark.App. 247, 821 S.W.2d 786 (1992).
Petition for rehearing denied.