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PATTERSON v. ARKANSAS DEPARTMENT HEALTH5/3/2000
n its demands on the claimant's time, but which is not full-time and is not widely available with other employers. This language substantially tracks the language required for a finding of total disability under the odd-lot doctrine.
Considering appellant's obvious physical impairment, work experience, and medical evidence, we hold that appellant made a prima facie case that she was totally and permanently disabled as a result of her five surgeries necessitated by her compensable
injury , and the burden shifted to appellee to show that work is readily and consistently available within appellant's capabilities. Appellee did not meet this burden, and indeed the law judge recognized that any work appellant performed was not full-time and not readily available with other employers. The Commission should have awarded appellant permanent and total disability benefits; therefore, we reverse and remand for an award of benefits.
On cross-appeal, ADH and the Public Employee Claims Division argue that the Commission erred: (1) in finding that appellant was entitled to an additional fifty-five percent wage-loss disability; (2) in finding that appellant did not receive a bona fide offer of employment from ADH; and (3) in finding that SIF had no liability. Because of the view we take of this case, we do not address cross- appellants' first argument.
In regard to cross-appellants' argument that the Commission erred in finding that appellant did not receive a bona fide offer of employment from ADH, we simply note that the Commission found that the preponderance of the evidence fails to show that appellant received a bona fide offer of employment at wages equal to or greater than her average weekly wage at the time of the injury . Appellant testified that she currently works for the health department part-time and earns about $100.00 per month. She also testified that no one with the health department has offered her a job back at full pay since the injury in 1991, and after she used up all her "comp" time, vacation time, and sick leave, she was asked to resign. ADH offered no testimony to the contrary, and under the circumstances we cannot say there is no substantial evidence to support the Commission's finding on this matter.
Cross-appellants also argue that the Commission erred in finding that SIF had no liability in this case. The test that is used to determine whether SIF has liability for compensating an injured worker was set out in Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 5, 746 S.W.2d 539, 541 (1988), as follows:
First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status. [Emphasis in original.]
Appellant was diagnosed in 1986 with Sjogren's syndrome, which usually affects her eyes and salivary glands, and has been taking medication for this condition since that time. Prior to the 1991 accident, appellant never missed a day's work due to this condition. Appellant testified that she was not limited in any way from her Sjogren's disease before her 1991 injury , and that it only caused her jaw to swell, and her salivary glands and tear ducts to dry out.
On April 29, 1997, Dr. Robert Cheek wrote that he did not believe appellant's Sjogren's syndrome is either a cause or contributing factor to her present physical disability which has been present since her initial back injury. Dr. Eleanor Lipsmeyer, a rheumatologist who treated appellant's Sjogren's
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