CLAIM NOS. E113512 E101707
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 8, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by WILLIAM S. SWAIN, Attorney at Law, Russellville, Arkansas.
Respondent represented by ROBERT L. HENRY, III, Attorney at Law, Little Rock, Arkansas.
[1] OPINION AND ORDER
[2] This case comes on for review by the Full Workers’ Compensation Commission on remand from the Court of Appeals and on the respondent’s Motion For Issuance of New Opinion By The Full Commission Upon Remand From The Court of Appeals (Motion). In light of our finding upon review on remand and in response to the directions contained within the opinion of the Court of Appeals, the issues raised in the respondent’s motion are rendered moot and need not be addressed.
is payable without regard to subsequent earning capacity. Therefore, an award for a scheduled injury cannot be increased by considering wage loss factors unless the claimant proves that she is permanently and totally disabled. We find that the evidence does not support a finding of permanent and total disability. [6] The claimant contends that she is permanently and totally disabled under the odd-lot doctrine. An employee who is injured to the extent that she can 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 under the odd-lot doctrine. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the worker is not altogether incapacitated from work. Id. The factors which may combine with the obvious severity of the employee’s injury to place him in the odd-lot category are the employee’s mental capacity, education, training and age.Id. If the claimant makes a prima facie showing that she falls in the odd-lot category, the respondent has the burden of proving that “some kind of suitable work is regularly and continuously available to the claimant.” Id. [7] In considering the factors which may affect an employee’s future earning capacity, the Commission may consider the claimant’s motivation to return to work, since a lack of interest or negative attitude impedes the Commission’s assessment of the claimant’s loss of earning capacity. City Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. Champion Parts Rebuilders,5 Ark. App. 307, 635 S.W.2d 276 1982. In addition, a workers’ failure to participate in rehabilitation does not bar his claim, but the failure may impede a full assessment of her wage earning loss by the Commission. Nicholas v.Hempstead County Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983). [8] In the present claim, the claimant failed to prove that she is entitled to application of the odd-lot doctrine. The evidence shows a lack of motivation on the part of the claimant to return to work. The claimant can read and write, add and subtract, and make change. She testified that she is able to drive a car, bend over, walk, cook, do four hours of house work on an average day and sit. She has not looked for a job since leaving the respondent’s employ on December 4, 1991. She readily admits that she is the one that terminated her employment. The claimant is also drawing Social Security Disability benefits in the amount of $529.00 per month. [9] The respondent has shown that suitable work was available to the claimant. The claimant had been performing this work when she terminated her employment with the respondent. The evidence indicates that the claimant was given light duty work when it was needed or suggested by one of her physicians. She was placed on light duty work continuously after December of 1990 and she was not asked to return to doing bundle work. The claimant was working full time as of December 4, 1991, when she terminated her employment with the respondent. The claimant admitted that she made the decision to terminate her employment, not the respondent. There is evidence, however, that Fonzie Mason, an employee of the respondent’s, wrote a letter to the claimant dated December 5, 1991, which states:
[10] Karen Ward, the respondent’s personnel manager, testified that the claimant could have continued to work for the respondent had she chosen to do so and light duty work was available to her. Upon being examined by the respondent’s attorney, Ms. Ward testified as follows:I want to take this opportunity to confirm the conversation of December 4, 1991, with you, myself, Deb Lakey, and Carol Loyd, RN, where you informed us that you were unable to perform your job function due to pain in your wrists.
Based on your feedback, the statement from Dr. Hickey that you supplied us today, and the fact that you have refused recommended medical treatment from Dr. Thompson, we are now left in a position of having to notify you that we do not have any work available for you.
Q At the time Mrs. Hallsell stopped working for Levi on December 4th of 1991, what were the circumstances of her stopping her job or stopping her work?
A She felt that she could not do any of the positions that we had in the company — in the plant.
Q I assume that includes the job that she was doing in late November and December of 1991, which Ms. Brazil just described?
A Yes.
Q If Mrs. Hallsell had desired to continue working at Levi at any of these various jobs she had been doing the previous year, was Levi willing and going to allow her to continue to work there?
A Yes.
Q Were there any actions taken by you or Levi Strauss to terminate her employment opportunities in December of 1991?
A None whatsoever.
Q This letter from Mr. Mason that’s written to Mrs. Hallsell dated December 5, is that a letter of termination of any kind?
A No, it’s not.
Q Generally, why was that letter written, as you understand it, from visiting with Mrs. Hallsell and being involved in this situation?
A It was a confirmation of — to confirm the meeting that Mrs. Hallsell had with Mr. Mason. Just recalling the conversation.
Q If Mrs. Hallsell desired to do some of the light duty work that she had been doing, was that job available for her?
A Yes.
Q Has Mrs. Hallsell ever been back to Levi since December the 4th of 1991, and indicated she would be willing to do any of the light duty work or this job she was doing on December the 4th? Or that she would be willing to attempt to do any of those jobs?
A No. (Tr. p. 103 — 105)
[11] Ms. Ward did testify, however, that light duty was a step in the process to get a person back to doing their regular job. [12] There is additional evidence that the claimant was able to work. Dr. Sorrells released the claimant to return to light duty work on August 7, 1991. Dr. Sheppard stated on August 13, 1991, that the claimant could continue working on light duty. Neither Dr. Sheppard nor Dr. Sorrells have stated that the claimant is unable to work or unable to perform her work. [13] It is also of significance that the claimant failed to offer a rehabilitation report or expert rehabilitation testimony indicating that she could not perform the work activities at the respondent’s plant or in some other suitable employment. However, the evidence indicates that the claimant waived any rehabilitation benefits. In determining the claimant’s entitlement to permanent disability, the Commission can consider the fact that the claimant has waived rehabilitation. Oller v.Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276(1982). The only evidence that the claimant cannot work is her own testimony that she cannot work and a claimant’s testimony is never considered uncontroverted. Lambert v.Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985).Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457
(1994). Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled under the odd-lot doctrine. [14] There is simply not sufficient evidence to make a determination of the claimant’s permanent impairment. The only evidence the Commission has is a range of ratings by Dr. Thompson and a rating by Dr. Hickey who is an unauthorized treating physician. Accordingly, we would remand this matter to the Administrative Law Judge to obtain additional evidence on the extent of the claimant’s permanent impairment. [15] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[16] Commissioner Humphrey dissents.[17] DISSENTING OPINION
[18] I must respectfully dissent from the majority opinion finding that claimant has failed to prove that she is permanently and totally disabled under the odd-lot doctrine.
[22] Id. (citing Hyman v. Farmland Feed Mill, 24 Ark. App. 63, 748 S.W.2d 151 (1988). [23] And furthermore,In reference to the odd-lot doctrine, we have recognized that “total disability” does not require a finding that the employee is utterly helpless, and an employee who is injured to the extent that he can 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.
[24] Id. (citing Johnson v. Research-Cotrell, 15 Ark. App. 48, 689 S.W.2d 8 (1985)). [25] Claimant is in her early fifties’ and has completed the ninth grade. Her work experience involves mainly non-sedentary employment such as factory or assembly-line tasks and waitressing. Based on Dr. Hickey’s opinion, claimant’s credible testimony concerning her current limitations, and her education and work experience, I would find that she has made a prima facieIf the evidence of degree of obvious physical impairment, coupled with other facts such as the 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.
showing that she falls within the odd-lot category of injured workers. [26] Accordingly, I would further find that it is incumbent upon respondents to demonstrate that some type of work is “regularly and continuously” available. The “light-duty” described by Ms. Ward does not satisfy this burden. [27] Based on the above, I would find that claimant is permanently and totally disabled according to the “odd-lot doctrine. I must therefore respectfully dissent. [28] PAT WEST HUMPHREY, Commissioner