{ "id": 6137710, "name": "Shirley Dean KELLER v. L. A. DARLING FIXTURES", "name_abbreviation": "Keller v. L. A. Darling Fixtures", "decision_date": "1992-12-02", "docket_number": "CA 91-447", "first_page": "94", "last_page": "108", "citations": [ { "type": "official", "cite": "40 Ark. App. 94" }, { "type": "parallel", "cite": "845 S.W.2d 15" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 11-9-522", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "302 Ark. 22", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884268 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ark/302/0022-01" ] }, { "cite": "826 P. 2d 587", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10372422 ], "year": 1992, "pin_cites": [ { "parenthetical": "medical report which evaluates permanent impairment in workers' compensation cases must comply with statutory guide." } ], "opinion_index": 0, "case_paths": [ "/p2d/826/0587-01" ] }, { "cite": "211 Neb. 149", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2967713 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "915-16" }, { "page": "916" } ], "opinion_index": 0, "case_paths": [ "/neb/211/0149-01" ] }, { "cite": "129 S.W.2d 922", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "129 S.W.2d 917", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1939, "opinion_index": 0 }, { "cite": "493 S.W.2d 411", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10123524 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/sw2d/493/0411-01" ] }, { "cite": "366 So. 2d 1333", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9634985 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "1335", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/so2d/366/1333-01" ] }, { "cite": "396 So. 2d 521", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9556826 ], "year": 1981, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/so2d/396/0521-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-704", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "38 Ark. App. 248", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140907 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0248-01" ] }, { "cite": "826 S.W.2d 213", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1992, "opinion_index": 0 }, { "cite": "38 Ark. App. 11", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136163 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0011-01" ] }, { "cite": "Ark. Code Ann. \u00a7 1", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 1057, "char_count": 26392, "ocr_confidence": 0.918, "pagerank": { "raw": 3.872386574765571e-07, "percentile": 0.9005413056900229 }, "sha256": "8f5eeedaf72f507ace9df6bbb0d8ba9cb8624cefe00530618fd39b1f30db7905", "simhash": "1:16ed412618bd2f71", "word_count": 4209 }, "last_updated": "2023-07-14T22:00:57.058600+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cooper and Rogers, JJ., agree." ], "parties": [ "Shirley Dean KELLER v. L. A. DARLING FIXTURES" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nThis is a workers\u2019 compensation case. The Administrative Law Judge\u2019s decision awarded the appellant 15 percent permanent disability to the body as a whole, based upon a 10 percent anatomical impairment to the body as a whole, plus an additional 5 percent impairment of wage-earning capacity. The opinion of the Chairman of the Commission reversed the law judge\u2019s decision and dismissed the claim. Another Commissioner concurred, and the third Commissioner dissented. Each Commissioner wrote a separate opinion.\nThe first issue is whether the evidence will satisfy the requirements of Ark. Code Ann. \u00a7 1 l-9-704(c)(l) (1987), which provides that \u201cany determination of the existence or extent of physical impairment shall be supported by objective and measurable physical and mental findings.\u201d\nWe think it will be helpful to begin our discussion by looking at the circumstances under which the above provision became a part of our \u201cWorkers\u2019 Compensation Law.\u201d The provision was added to our law by Act 10 of the Secondary Extraordinary Session of 1986. Section 10 of that act amended \u201cSubsections (b) and (c) of Section 23 of Initiated Measure No. 4 of 1948, as amended, the same being Arkansas Statutes Annotated \u00a7 81-1323(b) and (c).\u201d Section \u201cc\u201d was amended to read as follows: (The emphasized portion was added by the 1986 amendment.)\n(c) Evidence and Construction. (1) At such hearing the claimant and the employer may each present evidence in respect of such claim and may be represented by any person authorized in writing for such purpose. Such evidence may include verified medical reports which shall be accorded such weight as may be warranted from all the evidence of the case. Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. (2) When deciding any issue, administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence. Administrative law judges, the Commission, and any reviewing courts shall construe the provisions of this Act liberally, in accordance with the Act\u2019s remedial purposes. In determining whether a party has met the burden of proof on an issue, administrative law judges and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party.\nThe above section has now been codified as Ark. Code Ann. \u00a7 1 l-9-704(c)(l)-(9) (1987). Before examining the language involved in this case, we note that the amendment specifically provides that the provisions of the Act shall be construed liberally in accordance with the Act\u2019s remedial purposes.\nThe opinion of the Chairman of the Commission contains a extended discussion of the requirement for objective physical or mental findings. It states that findings based solely on complaints of pain are purely subjective and insufficient but that diagnoses developed by physicians based on results obtained from clinical tests which reveal consistent and repeated responses to specific stimuli \u201cfall toward the objective end of the continuum.\u201d At this point the opinion points out that \u201cmany conditions can only be diagnosed by such clinical tests, and by excluding findings based upon all such clinical tests claimants who suffer from such conditions are absolutely excluded from receiving permanent disability benefits.\u201d The opinion then notes that the term \u201cobjective\u201d is subject to different interpretations, and states \u201cwith regard to the objectivity of symptoms, the term means perceptible to persons other than an affected person.\u201d Webster\u2019s New Collegiate Dictionary 791 (1973) is cited as authority for that definition. The opinion then expresses the belief that the legislature \u201cused the term \u2018objective\u2019 to assure consistency in findings of permanent disability and to eliminate malingering.\u201d The opinion adds:\nHowever, we cannot conclude that the Legislature intended to exclude universally accepted diagnostic clinical evaluation or measuring procedures which yield consistent results on repeated trials under carefully controlled conditions. To reach any other conclusion would mean that the Legislature intended to eliminate entire classes of physical conditions from receiving the compensation provided for under the Act merely because the condition is not confirm-able by a specific type of test, and it is inconceivable that the Legislature intended such a result especially where the condition is confirmable by tests which are routinely and consistently relied upon by the medical profession and where the accuracy and dependability of the procedure is not disputed in the medical profession. Moreover, many of these conditions are just as disabling, if not more so, than many conditions which are confirmable by tests which do not require a response from the claimant. Consequently, to find that injured employees suffering from such conditions are totally excluded from ever receiving permanent disability benefits simply because their condition is confirma-ble by a test accepted without question by the medical profession but not this Commission would result in disparate treatment of entire classes of injured employees.\nAlthough the concurring opinion agrees with the result reached by the opinion of the Chairman, the concurring Commissioner expresses the \u201cfear\u201d that the principal opinion could be seen as a retreat from the legislative mandate requiring that permanent disability be supported by objective and measurable physical findings. (At this point we are only considering the term \u201cobjective,\u201d leaving the term \u201cmeasurable\u201d for a later discussion in this opinion.)\nThis court has already considered the \u201cobjective\u201d requirement in the cases of Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 213 (1992), and Reeder v. Rheem Manufacturing Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). In Taco Belize said the word \u201cobjective\u201d means \u201cbased on observable phenomena,\u201d and we cited The American Heritage Dictionary 857 (2d College ed. 1982) as our authority. We said that dictionary also gives a specific medical definition: \u201cIndicating a symptom or condition perceived as a sign of disease by someone other than the person afflicted.\u201d We then said \u201cunder either definition, in our view, observations made by a doctor as a result of range of motion tests qualify as \u2018objective physical findings.\u2019 \u201d We also said that the Commission was not prohibited by Ark. Code Ann. \u00a7 11-9-704(c) from considering \u201cthe claimant\u2019s testimony about her symptoms, including pain, and the effect of activity on those symptoms\u201d so long as the record contains objective and measurable findings to support the Commission\u2019s ultimate determination. And in Reeder we said:\nIt is apparent that the word \u201cdetermination\u201d as used in the statute might refer either to a determination of impairment made by a doctor or to one made by the Commission. The Commission took the view that unless the doctor\u2019s opinion as to permanent impairment was expressly based on objective and measurable physical findings, it was unworthy of consideration. We think that the word \u201cdetermination\u201d as used in the statute refers to the Commission\u2019s determination of physical impairment. The statute prohibits such a determination unless the record contains supporting \u201cobjective and measurable physical or mental findings.\u201d Our view is closer to the position taken by the dissenting commissioner: \u201cThe statute precludes an award for permanent disability only when it would be based solely on subjective findings.\u201d\n38 Ark. App. at 251 (emphasis supplied).\nBecause of the number of cases now reaching us in which the requirement of \u201cobjective\u201d physical or mental findings is involved, we have looked to other states for possible guidance in the meaning and application of this requirement.\nLouisiana has a statute, La. Rev. Stat. \u00a7 23:1317, which provides that workers\u2019 compensation payments are for \u201csuch injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.\u201d See Abshire v. Dravo Corp., 396 So. 2d 521, 523 (La. Ct. App. 1981). This case explained the meaning of the Louisiana statute by quoting from Drummer v. Central Pecan Shelling Co., 366 So. 2d 1333 (La. 1978), as follows:\nIn interpreting the statutory language this Court has indicated that \u201cobjective conditions or symptoms\u201d have a broad meaning, including \u201csymptoms of pain, and anguish, such as weakness, pallor . . . sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition . . . .\u201d Accordingly, the objective conditions or symptoms required by the statute are not limited to symptoms of an injury which can be seen or ascertained by touch. Moreover, there need not be a continued exhibition of objective symptoms to entitle the employee to compensation if the injury complained of is causally connected with the original accident.\n366 So. 2d at 1335 (citations omitted).\nThe State of Missouri has a statute, Mo. Rev. Stats. \u00a7 287.020[2] (1965), which defines the word \u201caccident\u201d as used in its workers\u2019 compensation law as \u201can unexpected or unforseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.\" (Emphasis added.) In Todd v. Goostree, 493 S.W.2d 411 (Mo. Ct. App. 1973), the court said \u201cobjective symptoms . . .. are not limited to external wounds, bruises, and the like which can be seen or ascertained by touch, but include as well all involuntary expression of pain or distress, such as weakness, faintness, pallor or sickness, indicating a deleterious change in the body condition.\u201d 493 S.W.2d at 417. In an earlier case, Schroeder v. Western Union Telegraph Co., 129 S.W.2d 917 (Mo. Ct. App. 1939), the court said:\nThe word \u201cobjective\u201d has been defined medically to mean \u201cperceptible to persons other than the patient.\u201d Webster\u2019s New Internad. Dictionary. The term \u201cobjective symptoms\u201d has been held to mean those symptoms which a surgeon or physician discovers from ah examination of his patient, while \u201csubjective symptoms\u201d are those which he learns from what his patient tells him. The \u201ccrazy\u201d actions and irrational \u201ctalk\u201d of the claimant on the morning after he received the blow on the head were all . \u201cobjective symptoms\u201d of insanity following the injury arising out of and in the course of his employment.\u201d\n129 S.W.2d 922 (citations omitted).\nIn Sandel v. Packaging Co. of America, 211 Neb. 149, 317 N.W.2d 910 (1982), the Nebraska Supreme Court construed a provision in the workers\u2019 compensation law of that state which defined \u201caccident\u201d as did the statute in Missouri. The Nebraska court said that \u201csymptoms of pain; and anguish, such as weakness, pallor, faintness, sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition may constitute objective symptoms as required by the statute.\u201d 317 N.W.2d at 915-16. The court also said, in reference to the evidence before it, \u201cNo one can reasonably argue that a swollen arm and the inability to move the arm so as to be able to perform one\u2019s work, together with apparent signs of pain and discomfort requiring medical attention, are not objective symptoms of an injury.\u201d 317 N.W.2d at 916.\nLooking at the record in the instant case, we note that it was stipulated that appellant had sustained a compensable injury to her chest on May 2,1988. She testified that after being off a short time she returned to work, and in July 1988, while trying to pull some big shelves apart, she again injured her chest. She was off another couple of days and returned to light duty for four weeks. She injured her chest for the third time just before Christmas that year and, at the time of the hearing on September 25, 1990, had not returned to work.\nThe appellant testified that she was 43 years old and had a ninth-grade education. Although she once worked, for a short period, as a bank teller, appellant testified she had mainly worked at factory jobs. She said she continues to suffer severe pain with only slight physical exertion and often goes to the emergency room for a shot when her medication does not relieve the pain. According to appellant, the problem is with her right side and she is right-handed; she cannot use her right arm to cook or mop the floor without having pain for several hours afterward; before her injury she enjoyed painting pictures on saw blades and pieces of wood, but she no longer can even do that very well because her arm shakes.\nDr. Randy D. Roberts, a rheumatologist, saw appellant in February of 1989, on referral by another doctor, and diagnosed appellant\u2019s condition as \u201cChest wall syndrome with injury to the costochondral junctions.\u201d In a letter to appellant\u2019s attorney, dated February 28,1989, Dr. Roberts stated that appellant \u201cwill qualify for a 10 percent permanent partial disability rating based on pain and problems using her upper extremities for any lifting or repetitive activity which exacerbates her discomfort.\u201d Subsequently, in a letter to appellee\u2019s attorney, Dr. Roberts again rated appellant at 10 percent permanent partial disability and recommended that she not be returned to her former job. He stated, \u201cI reviewed \u2018light\u2019 duties at Darling and could seem to find nothing that was light enough that she could manage with this present condition.\u201d\nDr. Hugh Franklin Burnett, a general, thoracic, and vascular surgeon, testified by deposition that, at the request of the appellee\u2019s insurance carrier, he reviewed appellant\u2019s records and x-rays and examined her to provide another opinion relative to her symptoms, complaints, findings, and injury. He said it was his opinion that appellant had a costochondritis or inflammation of the cartilages which attach to the sternum and/or muscle strain associated with this.\u201d When asked if this was an objective finding or was based upon appellant\u2019s subjective complaints, Dr. Burnett stated:\nIt relies on both. The fact that she historically had recurrent pain in the anterior chest wall, particularly along either side of the sternum, perhaps, more so on the right than on the left. But in addition to that, the objective finding that there was tenderness over the costal cartilages on either side.\nDr. Burnett also said he had \u201cno reasons to disagree with\u201d Dr. Roberts\u2019 opinion that appellant had a 10 percent permanent partial disability rating.\nBased upon the evidence and his interpretation of the meaning of the requirement of \u201cmeasurable physical or mental findings\u201d the opinion of the Chairman of the Commission states \u201cthe claimant in the present case failed to establish that the findings are measurable. Therefore, the findings fail to satisfy the second prong of the test . . . .\u201d Since one Commissioner concurred with the Chairman\u2019s opinion and one Commissioner dissented on the basis that there were findings \u201cnot only objective but measurable as well,\u201d it is clear that all three commissioners agree that there were \u201cobjective findings\u201d of permanent anatomical impairment. We think the law on the \u201cobjective\u201d requirement as stated in the Chairman\u2019s discussion is generally correct. It is not, in general, at odds with what this court has previously held in the Taco Bell and Reeder cases. Moreover, it is not, in general, at odds with the cases we have discussed from Louisiana, Missouri, and Nebraska. So, without embracing every statement in the Chairman\u2019s opinion regarding the meaning of the phrase \u201cobjective finding,\u201d we affirm the Commission\u2019s decision on the law and the facts as to the \u201cobjective findings\u201d requirement. However, we do not agree with the majority of the Commission on its decision as to the \u201cmeasurable findings\u201d requirement.\nAs we have already stated in this opinion, when considering the requirement that \u201cany determination of physical impairment shall be supported by objective and measurable physical or mental findings,\u201d we think the word \u201cdetermination\u201d refers to the Commission\u2019s determination. Reeder, supra. In making that determination, the opinion of the Chairman of the Commission states that the basis of Dr. Roberts\u2019 rating of a 10 percent anatomical impairment \u201cis not readily apparent.\u201d The opinion states that Dr. Roberts said his rating was based upon the appellant\u2019s pain and problems using her upper extremities for any lifting or repetitive activity which exacerbates her discomfort. The Chairman\u2019s opinion says that \u201cwhile loss of use of the upper extremities may be measurable, there is no evidence explaining how he used these factors to obtain the rating that he assigned.\u201d \u201cConsequently,\u201d the opinion states, \u201cwe find the Claimant failed to prove. . . that she sustained any permanent impairment since she failed to establish that the findings that she presented were measurable.\u201d\nIn the first place, we point out that the reasoning relied upon in the Chairman\u2019s opinion as to the \u201cobjective findings\u201d requirement \u2014 that the legislature did not intend to exclude injured employees from ever receiving permanent disability benefits simply because their condition is not confirmable by a test accepted by the medical profession but not by the Commission \u2014 is equally applicable to the \u201cmeasurable findings\u201d requirement. In light of the statutory requirement that the provisions of the Act shall be construed liberally in keeping with its remedial purposes, we think it is error to require a standard of measurability greater than the standard of objectivity. Surely if there are sufficiently objective findings upon which the doctor can make a diagnosis and give treatment, the Commission should not refuse to consider the doctor\u2019s findings as to the extent of physical impairment simply because the doctor cannot make a precise measurement of that impairment.\nIn the second place, we cannot be sure that the Chairman\u2019s opinion correctly defined the term \u201cmeasurable.\u201d His opinion simply states that \u201cmeasurable obviously means-capable of being quantified in some sense.\u201d Although the opinion does not say what \u201cin some sense\u201d means, we do not think it means in a \u201cprecise\u201d sense. Webster\u2019s Third New International Dictionary (Unabridged) (1976) gives one definition of \u201cmeasurable\u201d as \u201cgreat enough to be worth consideration.\u201d Just as the cases we have cited hold that objective symptoms are not limited to those that can be seen or ascertained by touch, we do not think measurable findings have to be precise. We also do not think that doctors are confined to any specific chart or guideline in making their evaluation of the existence or extent of physical impairment. The State of Oklahoma has a a statute, Okla. Stat. Ann. tit. 85 \u00a7 3(11) (1991), which requires \u201cexcept as otherwise provided herein,\u201d that any examining physician shall only evaluate impairment in accordance with the latest publication of The American Medical Association\u2019s \u201cGuides to the Evaluation of Permanent Impairment\u201d in effect at the time of the incident for which compensation is sought. See Davis v. Goodrich, 826 P. 2d 587 (Okla. 1992) (medical report which evaluates permanent impairment in workers\u2019 compensation cases must comply with statutory guide.) Had the Arkansas Legislature wanted to prescribe definite guidelines for use in evaluating the extent of physical impairment it could have done as Oklahoma did in that regard.\nWe agree with the opinion of the dissenting Commissioner that measurable findings may involve the extent, degree, dimension, or quantity of the physical condition. In this case there is evidence from the records of Dr. Roberts that appellant suffered from chest wall syndrome with injury to the costochondral junctions and a possible decreased grip in the right hand. The records of Dr. Roberts also report that palpation of the appellant\u2019s \u201cchest revealed marked tenderness in the Costochondral junctions bilaterally particularly on the right at 3,4 and 5, and on the left at 1,2 and 3.\u201d Dr. Burnett, who examined the appellant at the request of the appellee, agreed with Dr. Roberts\u2019 diagnosis and testified that tenderness to palpation is considered an objective finding. He indicated that not only did palpation of the costal cartilages elicit an indication of pain, but other locations were palpated also to determine whether or not the complaints of pain were appropriate for the diagnosis he had made. The dissenting Commissioner\u2019s observation of this evidence is worth noting:\nDr. Roberts is obviously referring to the costochondral junctions at these specific ribs as being particularly tender or symptomatic. Since every costochondral junction is not involved in claimant\u2019s symptomatology, and Dr. Roberts is specific about the affected area, Dr. Roberts\u2019 findings of tenderness to palpation in this configuration document the extent or dimensions of claimant\u2019s physical condition and are thus, measurable findings.\nWhile it can be argued that these were the initial findings and not indicative of the permanent character of claimant\u2019s work-related injury, Dr.Roberts\u2019 subsequent reports describe claimant\u2019s condition as \u201cnot improved,\u201d \u201cas previously\u201d found, \u201cmuch the same\u201d, and finally as \u201cpermanent.\u201d Thus, the initial findings are also the findings documenting claimant\u2019s permanent disability. Moreover, even though Dr. Roberts stated that the calcification of the costochondral cartilages found in claimant\u2019s x-rays \u201ccan be seen in people without any chest wall pain,\u201d such findings can be seen in people with chronic costochondritis and are obviously objective and measurable findings corroborating the findings of tenderness to palpation. Therefore, there are sufficient objective and measurable findings in the record to support an award of benefits for a permanent anatomical impairment.\nWe do not believe that the decision of the Chairman of the Commission, concurred in by another Commissioner, is supported by the law and evidence as to the holding that there is insufficient evidence of measurable physical findings to support a determination of physical impairment. When the term \u201cmeasurable\u201d is properly construed there is no reason to reject the 10 percent anatomical impairment rating agreed to by both doctors; and when the appellate court is convinced that fair-minded persons, on the same facts, could not have reached the same conclusion arrived at by the Commission, the decision of the Commission must be reversed. International Paper Co. v. Tuberville, 302 Ark. 22, 27, 786 S.W.2d 830 (1990).\nThe Chairman\u2019s opinion also held that appellant was not entitled to wage loss disability because of the provisions in Ark. Code Ann. \u00a7 ll-9-522(b) (1987) that deny, under certain circumstances, an injured employee permanent partial benefits in excess of the employee\u2019s percentage of permanent physical impairment. To support that holding the opinion states \u201cthe Respondent apparently was prepared to allow the Claimant to return to work at a job compatible with her limitations, and a representative for the Respondent testified that a variety of jobs were available.\u201d (Emphasis added.) The only representative of the Respondent-Appellee who testified was Ted Mabry who said he was an employee of the appellee and that safety and workers\u2019 compensation came within the jurisdiction of his job. He testified that if appellant \u201chad reported\u201d for work she would have been assigned to a job which would have permitted her to work without repetitively lifting as much as fifteen pounds. On cross examination he was asked if the job she would have done would be less strenuous than mopping a floor and he said \u201cYes.\u201d He was then asked if it was more or less repetitive than mopping a floor and he said it was more repetitive. Mabry also said he had sent a list of jobs available to appellant to Dr. Roberts; however, the doctor stated he reviewed the list of available jobs sent to him by Mabry and found none that appellant could do. The appellant testified that she went back to work for appellee on two occasions after her injury and was unable to do the work assigned to her. She also testified that she did not believe appellee had a job that she was able to perform. Although, the Chairman\u2019s opinion states that appellant admitted she could do work physically comparable to the bank teller\u2019s job she once had, the appellant testified that job was in 1977 and that she would need to go for more schooling to be able to do that work today. We also note that the appellant is 43 years old, has a ninth-grade education, and her treating physician\u2019s progress notes of September 15,1989, state: \u201cI recommend that the patient not be returned to work. I think this is a permanent condition.\u201d\nArkansas Code Annotated \u00a7 ll-9-522(c) (1987) contains two subdivisions which qualify the provisions that limit an injured employee\u2019s disability benefits if the employee returns to work or has reasonably obtainable offer to work at wages equal to those made at the time of injury. Those two subdivisions provide (1) that the burden is on the employer to prove the employee returned to work or that he had a reasonably obtainable offer to return to work at equal wages, and (2) that the intent of these provisions is to enable an employer to reduce disability payments when the disability no longer exists or if the employee is discharged for misconduct or leaves work without good cause connected with the work.\nBased on the evidence in the record, the burden of proof, and the purpose of Ark. Code Ann. \u00a7 1 l-9-522(b) and (c), we do not believe the Commission\u2019s decision to deny wage loss compensation under the provisions of Ark. Code Ann. \u00a7 11-9-522(b) is supported by the law and the evidence.\nWe reverse the Commissions\u2019 decision and remand with directions to assess appellant\u2019s permanent physical impairment and her permanent partial disability benefits.\nReversed and remanded.\nCooper and Rogers, JJ., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Murrey L. Grider, for appellant.", "Penix, Penix & Lusby, by: Richard Lusby, for appellee." ], "corrections": "", "head_matter": "Shirley Dean KELLER v. L. A. DARLING FIXTURES\nCA 91-447\n845 S.W.2d 15\nCourt of Appeals of Arkansas Division II\nOpinion delivered December 2, 1992\nMurrey L. Grider, for appellant.\nPenix, Penix & Lusby, by: Richard Lusby, for appellee." }, "file_name": "0094-01", "first_page_order": 114, "last_page_order": 128 }