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ELLISON v. THERMA TRU11/15/2000
by such a disabled worker in Jordan v. Decorative Co., 230 N.Y. 522, 130 N.E. 634 (1921), as follows.
He [the disabled worker] was an unskilled or common laborer. He coupled his request for employment with notice that the labor must be light. The applicant imposing such conditions is quickly put aside for more versatile competitors. Business has little patience with the suitor for ease and favor. He is the "odd lot" man, the "nondescript in the labor market." Work, if he gets it, is likely to be casual and intermittent. . . . Rebuff, if suffered, might reasonably be ascribed to the narrow opportunities that await the sick and the halt.
Id., at 525, 130 N.E. at 635-36.
In M.M. Cohn, supra, Judge David Newbern wrote that the "odd lot doctrine refers to employees who are able to work only a small amount. The fact they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible." See M.M. Cohn, 267 Ark. at 736, 589 S.W.2d at 602. In that case our court affirmed an award of permanent and total disability benefits a woman sixty-two years of age,
who suffered a shoulder fracture in a workplace fall, which left her unable to do anything but limited work.
In Walker Logging, supra, we affirmed the Commission's award of permanent and total disability benefits under the odd-lot doctrine to a man in his late forties whose right knee was injured when a tree fell on him while he worked as a timber cutter. In that case, the Commission held that based upon the claimant's mental capacity, age, education, work experience, and physical impairment and limitations, he established a prima facie case that he fell within the odd-lot category, which shifted to the employer the burden of producing evidence that some kind of suitable work was regularly and continuously available to him.
Last year we reversed and remanded for award of permanent total disability benefits a case where the Commission denied a claim asserted by a forty year-old worker who had fifteen percent permanent anatomical impairment from two back surgeries, was unable to speak above a whisper due to a crushed larnyx suffered in a prior workplace accident for a different employer, and who was a high school graduate. See Buford v. Standard Gravel Co., 68 Ark. 162, 5 S.W.3d 478 (1999). In that case, the Commission was unimpressed with the appellant's credibility and motivation to return to work based on proof that he drank beer, enjoyed deer hunting, fishing, and camping, and his ability to shop with his wife, garden, and mow his lawn. We rejected the Commission's analysis and reasoned as follows:
When Buford's age, education, work experience, and medical restrictions are considered together, Buford made a clear and convincing prima facie case that he was totally and permanently disabled by his throat injury and his three back injuries. The burden then shifted to the employer to show that work is readily and consistently available within appellant's restrictions in his hometown of El Dorado, Arkansas. The employer failed to meet that burden . . . The Commission should have awarded Buford permanent and total disability benefits. We reverse and remand for it to enter the order.
Id. at 169-70, 5 S.W.3d 483-84.
Earlier this year, we reversed the Commission in another odd-lot case and remanded so that permanent total disability benefits could be awarded to a forty-seven year old registered nurse who
worked in an administrative position for the Arkansas Department of Health when she suffered a back injury after reaching across her desk to plug in a surge protector. See Patterson v. Arkansas Dep't.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Arkansas Personal Injury Attorneys
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