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Pollard v. Aggregates10/12/2005
sional bending and lifting over 20 pounds. Given his prior work history he almost certainly will require vocational rehabilitation or at least vocational counseling prior to returning to the work force.
Mr. Pollard underwent a functional capacity evaluation on May 20, 2002, resulting in the following assessment:
His strength capabilities do not match any work category as defined by the U.S. Department of Labor's Dictionary of Occupational Titles. Even sedentary work is restricted as the client needs to alternate sitting, walking, standing, or lying down frequently during the day.
Mr. Pollard argues on appeal that there is no substantial evidence to support the Commission's decision that he is not permanently and totally disabled. He asserts that his work history includes jobs requiring physical labor, and that he is no longer able to engage in such employment. Mr. Pollard notes that his surgeon, Dr. Danielson, gave him significant physical restrictions and only authorized a maximum of a five-hour work day when his limitations are taken into account. Mr. Pollard submits that those limitations eliminate his ability to complete an eight-hour work day, and that for all practical purposes it is impossible for him to return to the work force.
Mr. Pollard's argument resembles the odd-lot doctrine. Under the odd-lot doctrine, when an injured worker makes a prima facie case of total disability by showing that he can only perform services that are so limited that a reasonably stable market for them does not exist, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to him. See Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). However, the odd-lot doctrine has been abolished by Act 796 of 1993, codified at Ark. Code Ann. ยง 11-9-522(e) (Repl. 2002). See Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).
We hold that the Commission's opinion displays a substantial basis for denying permanent total disability benefits. While it is evident that Mr. Pollard is physically unable to return to any jobs involving heavy labor, there was evidence presented that he could perform sedentary work in some capacity. In its opinion, the Commission made note of the May 20, 2002, functional capacity evaluation, which indicated a minimal chance of Mr. Pollard returning to the work force. However, the Commission has the authority to accept or reject medical opinion, see Williams v. Brown's Sheet Metal, supra, and in this case the Commission relied on the medical opinions to the contrary. In this regard, Drs. Danielson, Safman, and Hensley all indicated that vocational training for a more sedentary occupation was appropriate, while none of these doctors gave the opinion that Mr. Pollard had been rendered completely unable to work. And while Mr. Pollard could not think of any job he would be able to perform, he also testified that he is able to engage in limited physical activities, takes pain medication only intermittently, and has the benefit of a high school education. While we may have reached a different conclusion on the same facts, we cannot say that reasonable minds could not conclude that Mr. Pollard failed to prove that he was permanently and totally disabled.
Affirmed.
Gladwin and Baker, JJ., agree.
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