Nelson v. Timberline International, Inc.

Alvie NELSON v. TIMBERLINE INTERNATIONAL,
INC., Crum & Forster, Carrier, and Second
Injury Fund

CA 96-380                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered April 2, 1997


1.   Workers' compensation -- standard of review. -- The standard of review
     for workers' compensation cases requires that the appellate
     court affirm the Commissionþs decision if it is supported by
     substantial evidence, meaning evidence that a reasonable
     person might accept as adequate to support a conclusion; the
     appellate court does not reverse the Commission unless it is
     clear that fair-minded persons could not have reached the same
     conclusions if presented with the same facts.

2.   Workers' compensation -- odd-lot doctrine discussed. -- Under the odd-
     lot doctrine, an employee who is injured to the extent that he
     can only perform services that are so limited in quality,
     dependability, or quantity that a reasonably stable market for
     them does not exist may be classified as totally disabled;
     however, an injured worker who relies upon that doctrine has
     the burden of making a prima facie showing of being in the
     þodd-lotþ category based upon the factors of permanent
     impairment, age, mental capacity, education, and training; if
     the worker does so, the employer then has the burden of
     showing that some kind of suitable work is regularly and
     continuously available to him.

3.   Workers' compensation -- fair-minded persons could have concluded as
     Commission did that appellant was not totally disabled. -- Where
     appellant's treating physicians opined that he could perform
     light-duty work, including work that involved lifting up to
     twenty-five pounds; where none of the doctors who treated him
     for his 1992 injury believed that he was unable to work; where
     an orthopedic surgeon expressed doubts concerning appellantþs
     physical complaints, and two neurosurgeons concluded that
     appellant could perform light-duty work; and where the
     Workers' Compensation Commission also received evidence that
     the employer had attempted to return appellant to light-duty
     work answering telephones but appellant had not attempted the
     work, the appellate court held that fair-minded persons
     presented with this evidence could have concluded, as the
     Commission did, that appellant was not totally disabled; the
     facts constituted substantial evidence for the Commission's
     decision.

4.   Workers' compensation -- substantial evidence supported Commission's
     decision awarding permanent partial disability benefits equal to thirty
     percent of body as whole. -- The facts of the case constituted
     substantial evidence supporting the Commissionþs decision
     awarding permanent partial disability benefits above the
     extent of appellantþs physical impairment equal to thirty
     percent to the body as a whole.
5.   Workers' compensation -- Second Injury Fund -- principles of liability. --
     The Second Injury Fund is not liable when an employee sustains
     a subsequent injury while still working for the same employer
     for whom he was employed when a previous permanent injury was
     suffered; if successive injuries in the same employment cause
     total and permanent disability, then the employer or its
     insurance carrier is responsible to the disabled employee for
     all permanent disability benefits; however, if the previous
     disability or impairment arose out of employment by a
     different employer, then the Second Injury Fund is liable.

6.   Workers' compensation -- Second Injury Fund -- same-employer defense --
     judicial abolition prohibited by deference to legislature and supreme
     court. -- Given that the General Assembly had known about but
     had taken no action upon the same-employer defense for Second
     Injury Fund cases, the appellate court was reluctant to
     conclude that the defense required judicial abolition, despite
     the fact that it was judicially created and had not been
     legislatively adopted by specific language amending the
     statute; the appellate court's reluctance was also based upon
     its deference to the supreme court; appellees cited no
     authority for the proposition that the court of appeals can
     overrule supreme court decisions, and the appellate court knew
     of none.  

7.   Workers' compensation -- judicial lawmaking prohibited by statute. --
     Under Ark. Code Ann.  11-9-1001 (Repl. 1996), judicial
     lawmaking with respect to workers' compensation law is
     prohibited.

     Appeal from Arkansas Workers' Compensation Commission;
affirmed as to the appeal and as to the cross-appeal.
     Dodds, Kidd, Ryan & Moore, by:  Judson C. Kidd, for appellant.
     Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Tim A.
Cheatham, for appellee/cross-appellants Timberline International,
Inc., and Crum & Foster.
     Judy W. Rudd, for appellee Second Injury Fund. 

     Wendell L. Griffen, Judge.
     In this workersþ compensation appeal appellant challenges the
decision by the Workersþ Compensation Commission that he sustained
a 30% decrease to his earning capacity above the permanent physical
impairment established by the medical evidence.  Appellant argues
that the Commission should have found that he is permanently and
totally disabled, or that he is entitled to a larger award for the
decrease in his wage-earning capacity than the Commission rendered. 
Appellees Timberline International, Inc. (the employer), and Crum
& Forster (its workersþ compensation insurance carrier), contend
that the Commissionþs decision is supported by substantial
evidence.  However, they have cross-appealed that portion of the
Commissionþs decision that held the Second Injury Fund not liable
for the permanent disability benefits because appellantþs present
condition resulted from the cumulative effect of successive
injuries in the same employment.  See McCarver v. Munro-Clear Lake
Footwear, 289 Ark. 509, 715 S.W.2d 429 (1986), and Riceland Foods,
Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986).
As to the appeal we find no error and hold that the Commissionþs
wage-earning diminution decision is supported by substantial
evidence.  Because we do not believe ourselves able to overrule the
decisions by the Arkansas Supreme Court in McCarver and Riceland
Foods, we also affirm as to the cross-appeal.  Nevertheless, we
believe that the þsame employerþ defense that was judicially
created to shield the Second Injury Fund from liability deserves
reconsideration by the supreme court in light of serious policy
factors that we raise in our opinion.
     Appellant worked as a mechanic for eighteen years.  In 1981 he
began working for Timberline International as a diesel mechanic. 
Most of his work involved heavy manual labor.  He received a
compensable back injury in 1988 while torquing the head of an
engine, and eventually underwent back surgery resulting in a
permanent impairment rating of fifteen percent to the body as a
whole.  When he returned to work after surgery, the employer
assigned him to lighter work as a mechanic for several months, and
then placed him in its parts department where he worked for a year
or so before returning to work as a diesel mechanic.  On March 31,
1992, while torquing the head bolts on an engine, he suffered
another back injury.  That injury resulted in surgery by an
orthopedist, Dr. Stuart McConkie, in June 1992, and additional
surgery by a neurosurgeon, Dr. Thomas Fletcher, in September 1992. 
He has not returned to work or attempted to return to work since
the March 31, 1992, back injury, and Dr. Jim Moore, another
neurosurgeon, has assessed his permanent impairment from the 1992
injury to be an additional fifteen percent to the body as a whole. 
     Appellant argued before the Commission that he is permanently
and totally disabled due to the March 31, 1992, injury;
alternatively, appellant contended that the decrease to his wage-
earning capacity greatly exceeded the fifteen percent impairment
assigned to that injury.  The Commission found that appellant had
suffered a 30% decrease to his wage-earning capacity above the
fifteen percent physical impairment, and rejected appellantþs claim
of permanent and total disability.  Of course, our standard of
review requires that we affirm the Commissionþs decision if it is
supported by substantial evidence, meaning evidence that a
reasonable person might accept as adequate to support a conclusion. 
Christian v. Arkansas Crane & Crawler, 55 Ark. App. 306, 935 S.W.2d 1 (1996).  We do not reverse the Commission unless it is clear that
fair-minded persons could not have reached the same conclusions if
presented with the same facts.  Id.
     Appellant argues that the Commission should have found him
permanently and totally disabled under the odd-lot doctrine. 
According to that doctrine, an employee who is injured to the
extent that he can only perform services that are so limited in
quality, dependability, or quantity that a reasonably stable market
for them does not exist may be classified as totally disabled. 
Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456
(1992), supp. op., 40 Ark. App. 113, 846 S.W.2d 188 (1993). 
However, an injured worker who relies upon that doctrine has the
burden of making a prima facie showing of being in the þodd-lotþ
category based upon the factors of permanent impairment, age,
mental capacity, education, and training.  If the worker does so,
the employer then has the burden of showing that some kind of
suitable work is regularly and continuously available to him. 
Walker Logging v. Paskal, supra.
     Although appellant argues that he made a prima facie case of
entitlement to permanent total disability benefits under the odd-
lot doctrine set forth in Walker Logging v. Paskal, 36 Ark. App.
247, 821 S.W.2d 786 (1992), based on the claim that he cannot work,
his treating physicians opined that he can perform light duty work,
including work that involves lifting up to 25 pounds.  None of the
doctors who treated him for the 1992 injury believe that he is
unable to work.  Dr. McConkie, the orthopedic surgeon, expressed
doubts concerning appellantþs physical complaints, and both 
neurosurgeons (Drs. Fletcher and Moore) concluded that appellant
can perform light duty work.  The Commission also received evidence
that the employer has attempted to return appellant to light duty
work answering telephones but appellant has not attempted the work. 
We believe that fair-minded persons presented with this evidence
could have concluded, as the Commission did, that appellant was not
totally disabled.
     Appellantþs reliance upon the odd-lot doctrine is misplaced. 
He did not make the prima facie showing of substantial inability to
engage in regular and continuous employment that would have
obligated the employer to produce evidence that some kind of
suitable work is regularly and continuously available to him.  As
already mentioned, appellantþs doctors believe that he can perform
light duty work, and they question the validity of his physical
complaints.  The employer has indicated that appellant could return
to light duty work, but appellant has made no attempt to do so. 
These facts constitute substantial evidence for the Commissionþs
decision, even under the odd-lot analysis that appellant advocates. 
These facts also support the Commissionþs decision awarding
permanent partial disability benefits above the extent of
appellantþs physical impairment equal to 30% to the body as a
whole.
     Appellees contend in their cross-appeal that the Commission
erred when it refused to hold the Second Injury Fund liable for the
permanent disability benefits awarded to appellant for decreased
wage-earning capacity pursuant to the McCarver and Riceland Foods
holdings previously mentioned, and urge us to reverse the
Commission and overrule those decisions.  McCarver and Riceland
Foods stand for the proposition that the Second Injury Fund is not
liable when an employee sustains a subsequent injury while still
working for the same employer for whom he was employed when a
previous permanent injury was suffered.  In Riceland Foods, our
court announced that if successive injuries in the same employment
cause total and permanent disability, then the employer or its
insurance carrier is responsible to the disabled employee for all
permanent disability benefits; however, if the previous disability
or impairment arose out of employment by a different employer, then
the Second Injury Fund is liable.  Riceland Foods, supra.; see also
Death and Permanent Total Disability Trust Fund v. Whirlpool Corp.,
39 Ark. App. 62, 837 S.W.2d 293 (1992).  In McCarver and Riceland
Foods the supreme court affirmed our courtþs interpretation of what
was previously Ark. Stat. Ann.  81-1313, now codified as Ark. Code
Ann.  11-9-525 (Repl. 1996), and accepted our reasoning that the
following language from the statute supported the conclusion that
the Fund is not liable for successive injuries that are permanently
disabling when the injuries occur in the same employment:
(a)(1) The Second Injury Trust Fund established in this
chapter is a special fund designed to ensure that an
employer employing a handicapped worker will not, in the
event the worker suffers an injury on the job, be held
liable for a greater disability or impairment than
actually occurred while the worker was in his employment.

(2) The employee is to be fully protected in that the
fund pays the worker the difference between the
employerþs liability and the balance of his disability or
impairment which results from all disabilities or
impairments combined. 
(Emphasis added).
     Both our court and the supreme court reasoned that the
italicized language from the opening provision of the statute
justified the conclusion that where a worker suffers successive
injuries that are permanently disabling while working for the same
employer, then that employer should be held liable for the actual
disability or impairment sustained by those injuries.  The courts
in McCarver and Riceland Foods also believed that employers would
reap a windfall subsidy from the Fund if they are relieved of
liability for the wage-earning consequences of successive permanent
injuries that occur in the same employment.  Finally, the courts
reasoned that the Fundþs solvency could be jeopardized to the
possible detriment of permanently disabled workers who would, in
the event of Fund insolvency, be unable to recover disability
benefits from their employers because the statute specifically
prohibited reverter of liability to employers in case of Fund
insolvency.
     Ten years have passed since the decisions in McCarver and
Riceland Foods.  The Arkansas General Assembly has enacted several
major changes to the Workers' Compensation Law during that period,
but none of the changes have addressed the þsame employerþ defense
now challenged by appellees in their cross-appeal.  Indeed, the
Second Injury Fund statute has not been revised since 1981.  Given
that the General Assembly has known about the þsame employerþ
defense announced in McCarver and Riceland Foods, we are reluctant
to conclude that the defense requires judicial abolition, despite
the fact that it was judicially created and has not been
legislatively adopted by specific language amending the statute. 
Our reluctance also is based upon deference to the supreme court,
whose decisions we are now asked to overrule.  Appellees have cited
no authority for the proposition that our court can overrule
supreme court decisions, and we know of none.  
     We are also persuaded that Ark. Code Ann.  11-9-1001 (Repl.
1996) discourages the type of judicial lawmaking that appellees
urge us to perform by the following language:
When, and if, the workersþ compensation statutes of this
state need to be changed, the General Assembly
acknowledges its responsibility to do so. . . . In the
future, if such things as the statute of limitations, the
standard of review by the Workersþ Compensation
Commission or courts, the extent to which any physical
condition, injury, or disease should be excluded from or
added to coverage by the law, or the scope of the
workersþ compensation statutes need to be liberalized,
broadened, or narrowed, those things shall be addressed
by the General Assembly and should not be done by
administrative law judges, the Workersþ Compensation
Commission, or the courts. 
(Emphasis added).
     Inasmuch as appellees are urging that the scope of the
workersþ compensation law be broadened so that the Second Injury
Fund would become liable for the wage-loss disability benefits
payable to disabled workers in the event of successive injuries
during the same employment, it appears that the court of appeals
can offer no assistance due to this language.
     Our refusal to act pursuant to appelleesþ insistence that the
þsame employerþ defense be judicially abolished does not indicate
that we believe the defense to be justified by the Workersþ
Compensation Law.  In fact, we perceive serious policy problems
that the þsame employerþ defense presents in addition to our view
that the statute does not preclude the Fund from being held liable. 
The concern that abolition of the same employer defense would allow
employers to escape liability for disability or impairment that
actually occurs while a worker is in its employ appears to arise
from a misreading of the statute.  Rather than reading Ark. Code
Ann.  11-9-525(a) to refer to employments that produce
successively disabling injuries, the statute should be read to
address the successively disabling injuries.  After all, successive
injuries, not successive employments, is the subject addressed by
the statute.  If the statute did not intend to cover successive
injuries occurring in the same employment as the Fund maintains,
subsection (d)(1) makes no sense.  It explicitly covers how weekly
benefits for disability shall be paid where more than one injury
occurs in the same employment to cause concurrent and consecutive
permanent partial disability.  If the statute indeed contemplated
that the Fund would never be liable in cases of permanent
disability resulting from successive injuries sustained in the same
employment, one would think that subsection (d)(1) would be
unnecessary.  
     The same employer defense also appears inconsistent with the
apparent thrust of the Second Injury statute.  The statute
repeatedly refers to cases of permanent disability or impairment
and provides at subsection (b)(1) that it covers all cases of
permanent disability or impairment þwhere there has been previous
disability or impairment.þ  If a þsame employerþ is to be treated
no differently in cases involving successive injuries than it would
be treated had there been no successive injuries (the result that
the þsame employerþ defense produces), the language extending the
scope of the statute to þall cases of permanent disability or
impairment where there has been previous disability or impairmentþ
seems out of place. 
     We have found no other area of the workersþ compensation law
that excludes a party from liability based upon the unproven
possibility of insolvency, yet this was a stated reason advanced
for the þsame employerþ defense in McCarver and Riceland Foods. 
This appears to be the only area of the workersþ compensation law
where solvency is allowed to determine liability.  We have found
and been cited to no information that supports the idea that the
Second Injury Fund is endangered by any species of claims.  Indeed,
the Fund is specifically created to only pay claims for permanent
disability benefits, including permanent total disability benefits,
the most expensive variety of permanent disability benefits.  
     These concerns persuade us that if the þsame employerþ defense
that the appellate courts created ten years ago is subject to
judicial revisiting, the time has come to do so.   We encourage
appellees to petition the supreme court for review.
     Affirmed as to the appeal and the cross-appeal.
     Robbins, C.J., and Roaf, J., agree.