CLAIM NO. E802791 E809897
Before the Arkansas Workers’ Compensation Commission
ORDER FILED APRIL 30, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE G. CHADD MASON, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE ROBERT MONTGOMERY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Remanded.
ORDER
The respondent appeals an opinion and order filed by the Administrative Law Judge on August 25, 2000. In that opinion and order, the Administrative Law Judge found that the claimant has proven by a preponderance of the evidence that he is permanently and totally disabled as a result of his compensable left foot and right foot injuries.
Ark. Code Ann. § 11-9-519 states in relevant part:
(b) In the absence of clear and convincing proof to the contrary, the loss of both hands, both arms, both legs, both eyes, or of any two (2) thereof shall constitute permanent total disability.
(c) In all other cases, permanent total disability shall be determined in accordance with the facts.
* * *
(e)(1) “Permanent total disability” means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.
Ark. Code Ann. § 11-9-521, as amended by Act 796 of 1993, states in relevant part:
(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 § 11-9-519(b).
It has been noted on appeal that, even if the claimant is unable because of his compensable foot injuries to earn any meaningful wages in the same or other employment, the claimant did not experience the loss of “both hands, both arms, both legs, both eyes, or any two (2) thereof.” It has therefore been argued as a matter of statutory interpretation on appeal that, if an injured worker’s scheduled injuries do not fall within the exact categories listed in Ark. Code Ann. § 11-9-519(b), an injured worker is precluded by the language of Ark. Code Ann. §11-9-521(g) from receiving an award for permanent and total disability for a combination of scheduled injuries, even if the injured worker can otherwise establish that he has “permanent total disability” as defined in Ark. Code Ann. § 11-9-519(e)(1).
Since the claimant’s claim for permanent and total disability benefits for scheduled injuries is governed by Ark. Code Ann. §11-9-521(g), the statutory interpretation of Ark. Code Ann. §11-9-521 and of Ark. Code Ann. § 11-9-519 are within the scope of the issues that the parties agreed to litigate and resolve pursuant to the Administrative Law Judge’s prehearing order. However, as far as we can determine from the record presently before us, neither attorney ever raised that precise statutory issue to the Administrative Law Judge by way of prehearing conference, contentions made at the start of the hearing, or by any other means otherwise prescribed by the Administrative Law Judge.
Therefore, we note that the Administrative Law Judge has not had an opportunity to consider how, if at all, the amendment to Ark. Code Ann. § 11-9-521 discussed above may bear on the claimant’s claim for benefits for permanent and total disability for scheduled foot injuries. Under these circumstances, we remand this case to allow the parties to develop this issue before the Administrative Law Judge, to allow the Administrative Law Judge to conduct any additional proceedings that the Administrative Law Judge may deem appropriate, and for additional findings of fact and conclusions of law. Accord, Alex Mendoza, Jr. v. PhillipsTrucking, Inc. Full Commission Opinion filed August 8, 2000, (W.C.C. No. E708604); Jim Atchison v. John P. MarinoniConstruction Company, Full Commission Opinion filed August 31, 2000 (W.C.C. No. E616344).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ MIKE WILSON, Commissioner
______________________________ SHELBY W. TURNER, Commissioner