Opinion
CLAIM NO. E205029
OPINION FILED APRIL 12, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondent represented by the HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on July 28, 1994. In that opinion and order, the administrative law judge denied the claimant's request for additional benefits. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.
The claimant sustained an admittedly compensable injury to her left leg on February 17, 1992. According to her testimony, she was getting out of a chair when the chair broke, causing her to grab a wall to avoid falling. She testified that "something happened" to her left leg and that she could not move the leg. She was examined by Dr. James Callaway, an orthopedic surgeon, on that date, and she has subsequently been examined and treated by Dr. D'Orsay D. Bryant III and Dr. Ruth Thomas, both orthopedic specialists. She has continued to complain of problems related to her left knee and leg. Diagnostic testing has shown significant degenerative changes in the left knee, and the specialists who have examined her agree that her left tibia complaints are referable to the left knee problems. A total knee replacement has been recommended, but the claimant has declined surgery.
The claimant was released to return to work on April 27, 1992, and she returned to work folding sheets. She was unable to work the full 40 hours that she worked prior to the injury, so the respondents paid her temporary partial disability compensation through July 24, 1992. She also works one hour each day cleaning a physician's office.
The claimant contends that she is permanently and totally disabled as a result of this injury. When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker's future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker's anatomical disabilities impair her earning capacity, the Commission must also consider other factors, such as the worker's age, education, work experience, and any other matters which may affect the worker's future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522 (1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). When it becomes evident that the worker's underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, she is entitled to compensation for permanent and total disability.Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
Likewise, 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 that 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 employee is not altogether incapacitated from work. Id. In this regard, the factors which may combine with the obvious severity of the employee's injury to place her 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 respondents have the burden of going forward with evidence showing that "some kind of suitable work is regularly and continuously available to the claimant." Id.
In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that she is permanently and totally incapacitated from earning. She is 71 years old, and she has a general education degree. She began working at the respondent employer in 1964, and she has remained continuously employed by the respondent employer since that time as a surgical instrument technician. In this capacity, she cleaned, sterilized, repaired, and otherwise prepared surgical instruments, and at times, she prepared patients for surgery. Prior to her employment by the respondent employer, the claimant worked as a welder in a shipyard, as a label applier for a paint and varnish company, and as a cigarette stamper for a wholesale company.
The medical evidence establishes that the claimant is experiencing problems with her left knee and leg, and the claimant has testified that she is unable to return to her former job due to these difficulties. However, she was able to return to work at a position at the hospital where her standing was limited. Although she only works twenty hours each week at this position, the evidence indicates that the respondent employer initially offered the reduction in hours to assist the claimant in returning to work, and the claimant testified that she had not asked the respondent employer about working more hours. In addition, the evidence indicates that the claimant is physically capable of working more hours at a position similar to that which she currently holds with the respondent employer. The claimant is also working at a second job cleaning a physician's office. She works at this job one hour each day, and she performs duties such as taking out the trash.
After considering all relevant factors, including the claimant's demonstrated ability to work, we find that she failed to prove by a preponderance of the evidence that she is totally incapacitated from earning, and we find that she failed to establish a prima facie case that she falls in the odd-lot category. Therefore, we find that she failed to prove by a preponderance of the evidence that she is entitled to permanent and total disability compensation. Since the injury sustained by the claimant is scheduled under Ark. Code Ann. § 11-9-521 (Cumm. Supp. 1993), she is limited to the compensation provided for in that statute.
The claimant contends that limiting awards of permanent disability compensation for injuries scheduled under Ark. Code Ann. § 11-9-521 to the anatomical loss of use of the body part but allowing awards of permanent disability in excess of the permanent physical impairment for injuries not scheduled under the statute violates the equal protection clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. In this regard, the law is well established that an award for a scheduled injury is limited to the benefits provided in the statute for that scheduled injury, absent a finding of permanent and total disability. See, e.g., Anchor Construction Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972); Springdale Farms v. McGarrah, 260 Ark. 483, 541 S.W.2d 928 (1976); Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W.2d 862 (1971); Taylor v. Pfeiffer Plumbing Heating, 8 Ark. App. 144, 648 S.W.2d 526 (1983); Rash v. Goodyear Tire and Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). Consequently, the claimant challenges the constitutionality of this line of decisions. However, the claimant's argument ignores the fact that these decisions are based on the fact that the compensation provided for under that statute incorporates and includes the loss of earning capacity resulting from the injuries that are included in the statute. Rice, supra. In this regard, the decision of the Arkansas Supreme Court in Rice, supra was based, in part, on the following quotations from Larson,Workmen's Compensation, § 58.10 (1972):
This is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law — that benefits relate to loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual's actual wage-loss experience. . . .
However, although constitutional questions must be raised at the Commission level, those questions can only be decided by a court of law. International Paper Co. v. McBride, 12 Ark. App. 400, 678 S.W.2d 375 (1984). Therefore, we decline to address the constitutional questions raised by the claimant.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she is permanently and totally disabled. Therefore, we find that she is limited to the permanent disability compensation provided for in Ark. Code Ann. § 11-9-521. Consequently, we find that the administrative law judge's decision must be, and hereby is, affirmed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.