Theresa Barron v. Creative Foods et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISIONS III & IV

THERESA BARRON

APPELLANT

V.

CREATIVE FOODS, EMPLOYER AND AMERICAN INTERSTATE INSURANCE

APPELLEES

CA03-630

March 3, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F013289]

DISSENTING OPINION ON DENIAL OF REHEARING

Larry D. Vaught, Judge, dissenting. I would grant the Petition for Rehearing in this case because I believe that the Commission, and this court, have misinterpreted the code provisions at issue. If the Commission had examined the evidence and concluded that appellant had not proved that she was totally disabled, I would have no trouble affirming. However, the Commission's conclusion that, as a matter of law, appellant cannot be totally disabled is not supported by the code or applicable case law.

The appellant suffered a scheduled injury to her left hand, and Ark. Code Ann.§ 11-9-521 concerns scheduled permanent injuries and sets forth the schedule for permanent partial disability. It does not address total disability. It provides in subsection (g):

Any employee suffering a scheduled injury shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment set forth above except as otherwise provided in section 11-9-519(b).

Arkansas Code Annotated § 11-9-519, which specifically addresses total disability, provides in subsection (b):

In the absence of clear and convincing proof to the contrary, the loss of both hands, both legs, both eyes, or any two (2) thereof shall constitute permanent total disability.

This subsection means only that if a person has two scheduled injuries he need prove no more to establish total disability. If a person has only one scheduled injury he is in the same position as a person without scheduled injuries, and subsection (c) applies:

In all other cases, permanent total disability shall be determined in accordance with the facts.

The majority opinion relies on Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972). However that case did not address total disability, but only the extent of permanent partial disability. The language of Anchor specifically limits its holding: "an injury scheduled under Ark. Stat. Ann. § 83-1313 (c) could not be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability." (Emphasis added.)

Although I do not agree that Anchor provides the authority to support the Commission's conclusion, I likewise disagree with appellant's authority. Appellant relies on Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), supp. opinion on denial of reh'g, 846 S.W.2d 188, and Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985). Both of these cases pre-date Act 796 of 1993, which revamped the Worker's Compensation law in Arkansas. Both cases rely on the odd-lot doctrine to authorize total disability benefits for a claimant suffering one scheduled injury. Arkansas Code Annotated § 11-9-519 (f) (as enacted in Act 796 of 1993) repeals the odd-lot doctrine and provides that it may not be considered in a claim for permanent disability.

The Commission misconstrued the effect of the repeal of the odd-lot doctrine. The odd-lot doctrine was only an alternative means for a claimant to prove total disability. As described in Patterson v. Ark. Dept. of Health, 343 Ark. 255, 33 S.W.3d 151 (2000), the doctrine provided a two-pronged analysis to determine disability. If a claimant suffered an injury (either scheduled or otherwise) that rendered him able to work only a small amount, and coupled with other factors such as mental capacity, education, training or age, his prospects for employment were negligible, the claimant was a member of the odd-lot category. Under the second prong of the analysis, the burden then shifted to the employer to show that some kind of suitable work was available. If the employer could not so prove, the claimant was totally disabled. By repealing this alternative method of proving total disability, the legislature did not preclude any claimant, scheduled injury or otherwise, from proving total disability under the facts of his or her case.

In the case at bar, the record before us indicates that the appellant has a steep hill to climb to prove total disability, but she has the right to at least have the Commission consider her evidence. Since our review is not de novo, we cannot consider the evidence to make the determination. Therefore, I would reverse and remand for the Commission to determine total disability on the facts of this case. I am authorized to state that Judge Robbins joins this dissent.