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Pollard v. Aggregates10/12/2005
NOT DESIGNATED FOR PUBLICATION
This is the second appeal in this workers' compensation case. Appellant Michael Pollard sustained a compensable back injury while working for appellee Meridian Aggregates in late March 2000, and on October 10, 2000, Mr. Pollard underwent a decompressive lumbar laminectomy at L2-3 and L3-4. Meridian Aggregates accepted responsibility for medical benefits and temporary total disability benefits, but controverted Mr. Pollard's claim to benefits for a permanent partial impairment and permanent wage loss. The Workers' Compensation Commission initially found that Mr. Pollard failed to prove that he sustained a compensable anatomical impairment. In the first appeal, we reversed that finding and instructed the Commission to assess a permanent anatomical impairment rating. See Pollard v. Meridian Aggregates, Ark. App., S.W.3d (Sept. 29, 2004). Because we reversed on the issue of anatomical impairment, we also advised the Commission to address Mr. Pollard's argument that he is entitled to permanent wage-loss disability.
On remand, the Commission found that Mr. Pollard sustained a 10% anatomical impairment. The Commission further found that Mr. Pollard sustained additional permanent wage-loss disability of 40%. Pursuant to Ark. Code Ann. § 11-9-525 (Repl. 2002), the Commission held separate appellee Second Injury Fund liable for the wage-loss disability on the basis of Mr. Pollard's pre-existing back condition and two prior surgeries.
Mr. Pollard now brings this second appeal, arguing that the Commission erred in failing to find him permanently and totally disabled. Second Injury Fund does not challenge its responsibility for 40% wage-loss, but argues that the Commission committed no error in failing to award permanent total disability benefits. Because the issue in this appeal does not involve appellee Meridian Aggregates, it has not filed a brief. We affirm the Commission's decision.
Because Mr. Pollard sustained an injury to a part of his body that is not scheduled under workers' compensation laws, his entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522 (Repl. 2002), which provides in pertinent part:
(b)(1) In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Workers' Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity.
Pursuant to this statute, when a claimant has been assigned an anatomical rating to the body as a whole, the Commission can find a claimant totally permanently disabled upon wage-loss factors. Whitlatch v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Wage-loss disability is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Id.
In reviewing the Commission's decision, the question is not whether the evidence would have supported findings contrary to the ones made by the Commission or even whether we would have reached a different conclusion upon the same facts; the question is whether reasonable minds could reach the conclusion made by the Commission. Williams v. Brown's Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). When a claim for benefits is denied because the claimant has failed to show an entitlement to those benefits by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for th
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