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PATTERSON v. ARKANSAS DEPARTMENT HEALTH5/3/2000
syndrome, testified by deposition on September 24, 1997, that Sjogren's does not interfere with one's ability to work, and she does not think that it interfered with appellant's functioning in any way. She agreed with Dr. Cheek's assessment that appellant's Sjogren's syndrome is neither a cause nor a contributing factor to appellant's present disability. While she agreed with Dr. Cheek's assessment that five percent of appellant's current disability is due to Sjogren's disease, she said that refers only to the swollen glands, dry eyes and mouth, and pain in her hands. Dr. Lipsmeyer testified further that there is no evidence that Sjogren's has affected appellant's central nervous system.
The ALJ found that the record failed to show that there was a combination of the effects of appellant's compensable injury with any prior disability or impairment to yield disability greater than that arising from the compensable injury alone. This finding is supported by substantial evidence, and the Commission did not err when it found SIF has no liability in this case.
Reversed and remanded on direct appeal.
Robbins, C.J., Bird, Neal, and Stroud, JJ., agree.
Hays, S.J., Jennings, Pittman, and Roaf, JJ., dissent.
Affirmed on cross-appeal.
Robbins, C.J., Hays, S.J., Bird, Neal, Stroud, Jennings, Pittman, and Roaf, JJ., agree.
John E. Jennings, Judge, dissenting.
I have no serious disagreement with the majority's view as to the applicable law, but I cannot agree with the majority that the appellee falls prima facie in the odd-lot category as a matter of law.
Certainly whether the claimant is "odd-lot" was initially a fact question for the Commission to decide. See Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The factors to be considered in making that assessment are the degree of obvious physical impairment, together with the claimant's mental capacity, education, training, and age. See Hyman v. Farmland Feed Mill, 24 Ark. App. 63, 748 S.W.2d 151 (1988). In Lewis, we reversed the Commission's decision that the claimant did not fall within the odd-lot category. The claimant in that case was a fifty-five-year-old banquet manager. He was a high-school graduate whose prior experience was primarily as a waiter. It was clear that his right leg had been crushed in an on-the-job accident.
In Moser v. Arkansas Lime Company, 40 Ark. App. 108, 842 S.W.2d 456 (1992), we came to the same conclusion. There the claimant was a sixty-two-year-old laborer with a fifth-grade education who had lost the use of his right eye. The Commission in Moser found as a fact that the claimant was "borderline mentally retarded."
In the case at bar, the claimant is a forty-seven-year-old registered nurse. The Commission found that she had a twenty-five percent anatomical disability resulting from her on-the-job injury . The Commission was entitled to make this finding based on the evidence before it. There was evidence that she could work and that her employer would take necessary steps to accommodate her disability. Had the Commission found that this claimant was 100% permanently and totally disabled, I believe that such a decision might well have been supported by substantial evidence. Instead, the Commission found that she was eighty percent permanently and totally disabled. On the facts of this case, I am persuaded that reasonable minds could reach that conclusion. I cannot agree that the claimant falls within the odd-lot category as a matter of law.
For the reasons stated, I respectfully dissent. I agree with the majority opinion on the cross-appeal. I am authorized to state that <
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