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MAXEY v. TYSON FOODS5/18/2000
Louise Maxey appealed a decision of the Workers' Compensation Commission holding that she was not permanently and totally disabled, but that she was entitled to benefits for a 35 percent wage-loss disability. The Second Injury Fund cross-appealed, arguing that the Commission erred in awarding appellant wage-loss benefits on a scheduled injury. Appellee Tyson Foods took the position that the Commission did not err in finding that appellant failed to prove permanent and total disability, but did not address the Second Injury Fund's argument.
The Court of Appeals disagreed with appellant on her claim of disability degree and affirmed the Commission. Maxey v. Tyson, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999). Further, the court agreed with cross-appellant, the Second Injury Fund, that since Ark. Code Ann. § 11-9-521(g) (Supp. 1997) exempts the employer from paying any wage-loss disability for a scheduled injury in the absence of permanent total disability, it also exempts the Second Injury Fund. In other words, a claimant who is not entitled to wage-loss disability benefits from his employer or its insurance carrier cannot be entitled to benefits from the Second Injury Fund. Id.
Appellant/cross-appellee, Louise Maxey, then petitioned this Court for review of the decision of the Court of Appeals that reversed on cross-appeal the decision of the Full Commission that she was entitled to wage-loss disability on a scheduled injury pursuant to Ark. Code Ann. § 11-9-525 (Supp. 1997). Ms. Maxey contends that this petition involves an issue of first impression in this State. We granted appellee's petition for review pursuant to Ark.Sup.Ct.R. 1-2(e).
During oral argument of this matter, appellant asked this court to consider the Commission's entire decision, including its finding that she was not permanently and totally disabled. This court has the discretion to review an appeal decided by the Court of Appeals on application by a party. Ark.Sup.Ct.R. 1-2(e).
Moreover, the factors we consider in determining whether to grant a petition to review neither control nor fully measure our discretion. See id.; see also Dugal Logging, Inc. v. Arkansas Pulpwood Co., 336 Ark. 55, 984 S.W.2d 410 (1999). Accordingly, although Ms. Maxey initially requested reversal only in regard to the issue of the liability of the Second Injury Fund, we will consider the case on petition for review in its entirety.
Standard of Review
[2, 3] We have held that upon a petition for review, we consider a case as though it had been originally filed in this court. Woodall v. Hunnicutt Construction, 340 Ark. 377, 12 S.W.3d 630 (2000); White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W.3d 98 (1999); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a light most favorable to the Commission's decision, and we uphold that decision if it is supported by substantial evidence. Id.; Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Pickett, 336 Ark. at 518, 988 S.W.2d at 5; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).
Facts and Procedural History
At the time of the hearing in 1997, Ms. Maxey was sixty-eight years old, had a tenth-grade education, no vocational training, and her past work experience consisted of working on a farm, in a flower shop, as a sales clerk in a clothing store, and for appellee Tyson Foods. Ms. Maxey testified that she began working for Tyson in 1984 and per
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