BUFORD v. STANDARD GRAVEL COMPANY12/1/1999
1992). These rules insulate the Commission from judicial review and properly so, as it is a specialist in this area and this court is not. Wade v. Mr. C. Cavenaugh's, 25 Ark. App. 237, 756 S.W.2d 923 (1988). However, a total insulation would obviously render the appellate court's function in reviewing these cases meaningless. Boyd v. Dana, and Boyd v. General Indus., supra.
Buford argues on appeal that the Commission erred in holding that he did not come under the odd-lot doctrine, and we agree. For many years, Arkansas case law provided that an employee who was injured to the extent that he could perform services that were so limited in quality, dependability, or quantity that a reasonably stable market for them did not exist was classified as totally disabled, because he fell within the "odd-lot" category of disabled workers. See Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); Ellison v. Therma-Tru, 66 Ark. App. 286, 989 S.W.2d 987 (1999); Nelson v. Timberline Int'l, Inc., 57 Ark. App. 34, 942 S.W.2d 260 (1997); Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), supp. op., 40 Ark. App. 113, 846 S.W.2d 188 (1993). Section 24 of Act 796 of 1993 [now codified as Ark. Code Ann. ยง 11-9-522(e) (Repl. 1996)] abolished the odd-lot doctrine for permanent disability claims based on injuries that occurred after July 1, 1993; however, the doctrine was applicable to Buford's disability claim stemming from compensable injuries sustained in 1981, 1988, 1991, and 1993.
Under the odd-lot doctrine, where the claim is for permanent disability based on incapacity to earn, the Commission is required to consider all competent evidence relating to the disability, including the claimant's age, education, medical evidence, work experience, and other matters reasonably expected to affect his earning power. Rooney, Ellison, Nelson, and Moser, supra, and Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985). An injured worker who relies upon the odd-lot doctrine has the burden of making a prima facie showing of being in that category based upon the factors of permanent impairment, age, mental capacity, education, and training. If the worker does so,the
employer then has the burden of showing that some kind of suitable work is regularly and continuously available to him. Nelson, supra.
Buford claims he belongs in the odd-lot category because he has a 15% permanent anatomical impairment from the first two back surgeries (Dr. Grimes did not give him an anatomical impairment rating), he is unable to speak above a whisper, he has had three back injuries and surgeries that left him with constant pain, and unable to work more than four hours a day, while at the same time he is restricted from any continuous bending, stooping, walking, standing, and restricted from lifting over forty pounds. Although he finished high school and says he can read, write, and do simple math, his functional equivalency test scores show he is very poor at math and writing.
The Commission emphasized Buford's reluctance to go back to work; his lack of motivation; his use of beer; his enjoyment of walking to his friends' houses; his ability to deer hunt, fish, and camp; his ability to shop with his wife, garden, and mow the yard. The Second Injury Fund also stresses appellant's lack of motivation to work, his enjoyment of spending his days with his other disabled buddies, drinking beer, watching TV, and listening to music.
Although motivation is a factor that may be considered by the Commission in determining permanent disability, see Ark. Code Ann. 11-9-522 (b); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Sapp v. Phelphs Trucking, Inc., 64 Ark. App. 221,
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