{ "id": 6142697, "name": "Sarah ELLISON v. THERMA TRU; Liberty Mutual Insurance Company; and Second Injury Fund", "name_abbreviation": "Ellison v. Therma Tru", "decision_date": "2000-11-15", "docket_number": "CA 00-126", "first_page": "410", "last_page": "433", "citations": [ { "type": "official", "cite": "71 Ark. App. 410" }, { "type": "parallel", "cite": "30 S.W.3d 769" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "36 Ark. App 247", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141243 ], "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "\"When reviewing a decision of the Workers' Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/ark-app/36/0247-01" ] }, { "cite": "267 Ark. 734", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719946 ], "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "\"\"We hold there is substantial evidence this claimant is totally disabled.\"" }, { "parenthetical": "\"\"We hold there is substantial evidence this claimant is totally disabled.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/267/0734-01" ] }, { "cite": "842 Ark. 456", "category": "reporters:state", "reporter": "Ark.", "year": 1992, "pin_cites": [ { "parenthetical": "\"the substantial evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief.\"" } ], "opinion_index": 0 }, { "cite": "40 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137880 ], "year": 1992, "pin_cites": [ { "parenthetical": "\"the substantial evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief.\"" } ], "opinion_index": 0, "case_paths": [ "/ark-app/40/0108-01" ] }, { "cite": "227 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705418 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/ark/227/0173-01" ] }, { "cite": "217 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718507 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0198-01" ] }, { "cite": "17 Ark. App. 76", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6650168 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/17/0076-01" ] }, { "cite": "42 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135995 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0001-01" ] }, { "cite": "9 Ark. App. 261", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141116 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/9/0261-01" ] }, { "cite": "10 Ark. App. 313", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141834 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/10/0313-01" ] }, { "cite": "911 S.W.2d 593", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6137465, 1447543 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/51/0100-01", "/ark/322/0818-01" ] }, { "cite": "51 Ark. App. 100", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137465 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/51/0100-01" ] }, { "cite": "43 Ark. App. 169", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139939 ], "weight": 6, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/43/0169-01" ] }, { "cite": "5 S.W.3d 478", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 130705, 6138569 ], "weight": 3, "year": 1999, "pin_cites": [ { "parenthetical": "\"Our standard of review on appeal is whether the decision of the Commission is supported by substantial evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/339/0489-01", "/ark-app/68/0162-01" ] }, { "cite": "68 Ark. App. 162", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138569 ], "weight": 3, "year": 1999, "pin_cites": [ { "parenthetical": "\"Our standard of review on appeal is whether the decision of the Commission is supported by substantial evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/ark-app/68/0162-01" ] }, { "cite": "70 Ark. App. 182", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139908 ], "weight": 8, "year": 2000, "pin_cites": [ { "parenthetical": "\"we review the evidence and all inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence.\"" }, { "parenthetical": "\"we review the evidence and all inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/ark-app/70/0182-01" ] }, { "cite": "66 Ark. App. 286", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141021 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/66/0286-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 }, { "cite": "361 S.W.2d 67", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1684880, 1684882 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/ark/235/0258-01", "/ark/235/0500-01" ] }, { "cite": "235 Ark. 500", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684882 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/ark/235/0500-01" ] }, { "cite": "236 Ark 434", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681245 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/ark/236/0434-01" ] }, { "cite": "253 Ark. 945", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627353 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/ark/253/0945-01" ] }, { "cite": "234 Ark. 812", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688394 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "813" }, { "page": "727" } ], "opinion_index": 1, "case_paths": [ "/ark/234/0812-01" ] }, { "cite": "232 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694105 ], "weight": 2, "year": 1960, "opinion_index": 1, "case_paths": [ "/ark/232/0411-01" ] }, { "cite": "333 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703789 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "403-04" }, { "page": "208-09", "parenthetical": "emphasis in original" } ], "opinion_index": 1, "case_paths": [ "/ark/333/0400-01" ] }, { "cite": "70 Ark. App. 114", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138459 ], "weight": 2, "year": 2000, "opinion_index": 1, "case_paths": [ "/ark-app/70/0114-01" ] }, { "cite": "15 S.W.3d 708", "category": "reporters:state_regional", "reporter": "S.W.3d", "opinion_index": 1 }, { "cite": "5 S.W.3d 483", "category": "reporters:state_regional", "reporter": "S.W.3d", "opinion_index": 1 }, { "cite": "68 Ark. 162", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1334069 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/68/0162-01" ] }, { "cite": "130 N.E. 634", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1921, "pin_cites": [ { "page": "635-36" } ], "opinion_index": 1 }, { "cite": "230 N.Y. 522", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 294480 ], "year": 1921, "opinion_index": 1, "case_paths": [ "/ny/230/0522-01" ] }, { "cite": "36 Ark. App 247", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141243 ], "weight": 3, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark-app/36/0247-01" ] }, { "cite": "267 Ark. 734", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719946 ], "weight": 8, "year": 1979, "pin_cites": [ { "page": "736" }, { "page": "602" } ], "opinion_index": 1, "case_paths": [ "/ark/267/0734-01" ] }, { "cite": "40 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137880 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark-app/40/0108-01" ] }, { "cite": "227 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705418 ], "weight": 4, "year": 1957, "opinion_index": 1, "case_paths": [ "/ark/227/0173-01" ] }, { "cite": "217 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718507 ], "weight": 4, "year": 1950, "opinion_index": 1, "case_paths": [ "/ark/217/0198-01" ] }, { "cite": "5 S.W.3d 478", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 130705, 6138569 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/339/0489-01", "/ark-app/68/0162-01" ] }, { "cite": "68 Ark. App. 162", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138569 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/ark-app/68/0162-01" ] }, { "cite": "70 Ark. App. 182", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139908 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "191" }, { "page": "707" } ], "opinion_index": 1, "case_paths": [ "/ark-app/70/0182-01" ] }, { "cite": "66 Ark. App. 286", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141021 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark-app/66/0286-01" ] } ], "analysis": { "cardinality": 1530, "char_count": 50121, "ocr_confidence": 0.741, "pagerank": { "raw": 2.9099468483055444e-07, "percentile": 0.8457232448687163 }, "sha256": "5f4686c049d58d21eb1a9dbd124d8ac32646d01bd608b1bab3bb37ad55d6b29b", "simhash": "1:3827aa1bb5864bc8", "word_count": 8206 }, "last_updated": "2023-07-14T17:32:31.293590+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart, Koonce, Stroud, Meads, and Roaf, JJ., agree.", "Robbins, CJ., and Griffen and Neal, JJ., dissent." ], "parties": [ "Sarah ELLISON v. THERMA TRU; Liberty Mutual Insurance Company; and Second Injury Fund" ], "opinions": [ { "text": "Sam BIRD, Judge.\nIn this second appeal to this court, the appellant, Sarah Ellison, contends that the Commission erred by determining that she had not proven by a preponderance of the evidence that she is permanently and totally disabled and could be categorized as falling under the odd-lot doctrine. Because substantial evidence exists to support the Commission\u2019s decision, we affirm.\nAt the hearing before the administrative law judge, Ellison testified that she had experienced two non-work-related injuries to her back, in 1987 and 1989. She began working for Therma Tru in 1979, and her job required her to \u201cpull loads of door stiles across the floor onto my machine.\u201d She suffered a compensable injury in 1991 while she was employed with Therma Tru and was pulling a load of door sides when she felt a \u201cpop\u201d in her back. She suffered recurrences of her injury in 1992 and 1993. The injury was accepted as compensable by Therma Tru, which paid indemnity and medical benefits. Ellison then claimed that she was permanently and totally disabled.\nEllison testified that she was terminated from Therma Tru on June 30, 1993, after her second recurrence \u201cbecause her pain became so severe\u201d that she could not cope with it. She testified that she has not worked since, and that she has not applied for any other jobs, but that she has asked to return to Therma Tru but was refused. After she was terminated, she presented to Dr. Stephen Heim, an orthopaedic surgeon. She stated that she is in constant pain and cannot sit or stand for a long period of time. She admitted that she did not see a doctor for her back condition in 1994, 1995, or 1996, and that she had not attended or scheduled any follow-up appointments with Dr. Heim since February -1997 because, she stated, Dr. Heim seemed to think there was nothing he could do to help her.\nShe also states that she had experienced respiratory and breathing problems in the past, as early as 1983, having been diagnosed with bronchitis and other respiratory problems. An inhaler was prescribed for her in 1988 by Dr. Sasser. She has smoked for approximately thirty years and has been told by doctors several times that she should quit. She said that she missed work in 1991 for her respiratory breathing problems, and that her problems had worsened. She stated, \u201cI don\u2019t have much breath. Just any little thing and I\u2019m out of breath. ... Moving around or strenuous things cause me to run short of breath. Just trying to walk or anything.\u201d She stated that she is able to go grocery shopping, cook, and do laundry, but that she has to stop, sit down, and take a breath.\nShe stated that the effects of her back injuries, coupled with her respiratory problems, do not allow her to work. She testified, \u201cIf I had a job that I could just sit and use my hands I could do it if it were not for my respiratory problem. But if I\u2019m going to be moving around or anything strenuous I could not do it with my respiratory [problems], neither with my back. I think I can do sedentary work.\u201d\nShe contends that she was permanently and totally disabled due to the combined effects of the 1991 injury and the 1992 and 1993 recurrences and her preexisting condition of chronic obstructive pulmonary disease. The Second Injury Fund was joined as a party, and it denied any liability for benefits, while Therma Tru denied that Ellison is permanently and totally disabled.\nMedical evidence presented to the administrative law judge included reports from Dr. Harford, whose notes reflected that Ellison had suffered a back injury at work on May 8, 1991, which caused her severe pain resulting in numbness and tingling into her left leg and foot. She was released to return to work on October 31, with specific instructions not to push any carts by herself. Ellison returned to Dr. Harford on December 7, 1992, stating that she had reinjured her back pulling carts, but that someone was helping her pull carts. He wrote, \u201cShe is just a small frail lady and I do not think she is going to manage to continue working in this type of work without injuring herself on a frequent basis.\u201d On January 21, 1993, Dr. Harford stated that Ellison was markedly improved, and he released her from his care but instructed her to never again push carts. On July 21, 1993, Dr. Harford stated that Ellison needed to change occupations; that she is not able to do factory work.\nDr. Stephen Anthony Heim, an orthopaedic surgeon, testified by deposition that Ellison was diagnosed with having a herniated disc in 1991, but that she did not require surgery. He stated that she was temporarily totally disabled on August 12, 1993. On August 20, he assigned her a 6% impairment rating. In doing so he stated that it would be difficult to divide the 6% impairment rating because it would be hard to determine how much of it is due to Ellison\u2019s underlying back condition and how much of it is due to her job-related injury in 1991. When he first saw her, Dr. Heim instructed her not to do any lifting or twisting and to return to him on September 25. Ellison did not keep her appointment. However, Ellison returned to him in 1997, after her attorney informed her that she needed to have another check-up.\nIn his deposition Dr. Heim stated:\nIf Ms. Ellison\u2019s condition has not significantly improved since August 12, 1993, I would recommend that she use proper lifting techniques. I would ask her to keep her muscles in good condition and I would ask her to possibly occasionally wear a back brace when she is doing things that are of high activity in nature. I would ask her to refrain from any repetitive bending at the waist and any lifting heavy loads. I would say 25 pounds or above from ground level. There is no medical reason for an employer not to allow Ms. Ellison to work within these restrictions.\nAdditionally, in a report dated February 6, 1997, Dr. Heim stated that Ellison was not a good candidate for vigorous activity that requires a lot of bending, stooping, and lifting. He stated, \u201cShe could have a sedentary job.\u201d\nVarious medical notes were also introduced showing that Ellison had seen several doctors who had diagnosed her with upper respiratory problems, including emphysema, chronic obstructive pulmonary disease, and recurrent acute bronchitis. In addition, several of the doctors had recommended that she stop smoking, but all the medical notes indicated that she had not done so. On October 11, 1993, Dr. Sills noted in his records that Ellison \u201chad been given a note stating that she is unable to work due to her severe chronic obstructive pulmonary disease and back pain.\u201d\nA pulmonary function report prepared by Dr. David R. Nichols was also introduced into evidence. Although not abstracted by Ellison in her second appeal to this court, the report was relied upon by the Commission. The report stated that Ellison had a mild obstructive pulmonary impairment and that the degree of functional impairment was found to be moderate.\nBased upon evidence adduced at the hearing, the Commission determined that Ellison had a one-percent permanent impairment and a two-percent wage loss, and it absolved the Second Injury Fund of any liability. This court reversed the Commission and remanded the case, stating that the Second Injury Fund did have some liability in the case; that the Commission should have applied the law as it existed in 1991, rather than Act 796 of 1993; and we instructed the Commission to consider the applicability of the odd-lot doctrine to Ellison. See Ellison v. Therma Tru, 66 Ark. App. 286, 989 S.W.2d 987 (1999).\nFollowing our remand, the Commission delivered an opinion finding that the odd-lot doctrine was not applicable to Ellison because she had not proven that she was permanently and totally disabled. It also found that she has a wage-loss disability of 8% to the body as a whole. The Commission stated that, at the time of the hearing, Ellison was 61 years old, that she had a 10th grade education, and that the majority of her work had included tasks involving labor-intensive activity in an industrial setting. In its opinion, the Commission considered Ellison\u2019s testimony that she has constant pain in her back that does not allow her to sit or stand for long periods of time. She said that she has respiratory problems, and that those problems, coupled with her back injury, would not allow her to continue to work.\nHowever, the Commission found that she had not introduced any credible evidence from a physician or from a vocational counselor that she is totally disabled. The Commission, instead, relied upon testimony from Dr. Heim, the only physician that had treated her since 1993, who found that even though she was not a good candidate for vigorous activity that requires a lot of bending, stooping, and lifting, she was improving slighdy and that she could maintain a sedentary job. The Commission also took note of Dr. Harford\u2019s opinion that Ellison was going to need to find another fine of work.\nIn addition, the Commission chose specifically not to believe Ellison\u2019s testimony that her respiratory condition had recently deteriorated because medical evidence had shown the opposite. It relied upon a physician\u2019s testimony that Ellison had a mild obstructive pulmonary impairment with a moderate degree of functional impairment.\nThe Commission then wrote:\nIn light of Dr. Nichols\u2019 conclusion in 1994 that the claimant had a mild obstructive pulmonary impairment with a moderate degree of functional impairment, and in light of Dr. Heim\u2019s assessment in 1997 that the claimant could return to sedentary work, we are not persuaded by the claimant\u2019s testimony that no employer would hire her in her condition. The claimant has acknowledged that she has not sought any employment from her employer (other than from the respondent) since she last worked in 1993. In light of the medical reports of Dr. Nichols and Dr. Heim, we are not persuaded by the claimant\u2019s testimony that she has presented a prima facie case that she fits within the odd lot category.\nThe Commission then ordered the Second Injury Fund to pay Ellison an 8% impairment to her wage-earning capacity and Therma Tru to pay for the 1% anatomical impairment rating to the body as a whole. Ellison brings this appeal contending that the Commission erred in finding that she is not permanently and totally disabled and that the odd-lot doctrine is not applicable.\nOn appellate review, we view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission. Patterson v. Arkansas Dep\u2019t of Health, 70 Ark. App. 182, 15 S.W.3d 701 (2000); Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999). Our standard of review on appeal is whether the Commission\u2019s decision is supported by substantial evidence. Patterson v. Arkansas Dep\u2019t of Health, supra; Buford v. Standard Gravel Co., supra. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclu sion. Patterson v. Arkansas Dep\u2019t of Health, supra; Buford v. Standard Gravel Co., supra. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Patterson v. Arkansas Dep\u2019t of Health, supra; Buford v. Standard Gravel Co., supra. In cases where the Commission\u2019s denial of relief is based upon the claimant\u2019s failure to prove entitlement by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm the Commission\u2019s action if its opinion displays a substantial basis for the denial of relief. Patterson v. Arkansas Dep\u2019t of Health, supra.\nQuestions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Dep\u2019t of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). We defer to the Commission\u2019s findings on what testimony it deems to be credible. Id. When there are contradictions in the evidence, it is within the Commission\u2019s province to reconcile conflicting evidence and to determine the true facts. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).\nThe rules of appellate review in workers\u2019 compensation cases insulate the Commission from judicial review and properly so, as it is a specialist in the area and this court is not. Buford v. Standard Gravel Co., supra. However, a total insulation would obviously render the appellate court\u2019s function in reviewing these cases meaningless. Buford v. Standard Gravel Co., supra.\nThe odd-lot doctrine provides benefits for an employee who is injured to the extent that he can only perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist and he may be classified as totally disabled. Patterson v. Arkansas Dep\u2019t of Health, supra. The doctrine applies to employees who are able to work only a small amount; the fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. Patterson v. Arkansas Dep\u2019t of Health, supra. An injured worker who relies upon that doctrine has the burden of making a prima facie showing of being in the odd-lot category based upon the factors of permanent impairment, age, mental capacity, education, and training. Patterson v. Arkansas Dep\u2019t of Health, supra. If the worker does so, the employer then has the burden of showing some kind of suitable work is regularly and continuously available to him. Patterson v. Arkansas Dep\u2019t of Health, supra. In considering factors that may affect an employee\u2019s future earning capacity, this court considers the claimant\u2019s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant\u2019s loss of earning capacity. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). In addition, although a claimant\u2019s failure to participate in rehabilitation services does not bar his claim, the failure may impede a full assessment of his wage-earning loss by the Commission. Nicholas v. Hempstead County Memorial Hosp., 9 Ark. App. 261, 658 S.W.2d 408 (1983). Section 24 of Act 796 of 1993, codified at Ark. Code Ann. \u00a7 ll-9-522(e) (R.epl. 1996), abolished the odd-lot doctrine for injuries occurring after July 1, 1993. However, because Ellison\u2019s injuries occurred in 1991, with recurrences in 1992 and 1993, the doctrine is applicable to her case.\nEllison argues on appeal that the Commission erred in not finding that she is permanently and totally disabled because, on remand, the Commission again adopted the restrictive view of disability consistent with Act 796 of 1993, rather than applying the law in effect in 1991. She argues that her work opportunities are restricted due to her age, her past work experience, and the fact that she cannot stand or sit for long periods of time. In addition, she discounts Dr. Heims medical opinion that she could maintain a sedentary job because, she contends, Dr. Heim only took into account her orthopaedic problems, and not her respiratory problems. She also states that the Commission\u2019s decision is contrary to Dr. Sills\u2019s opinion that Ellison was unable to work due to her severe respiratory problems and back pain. As evidence that the Commission applied a \u201crestrictive interpretation of the law,\u201d Ellison points to the fact that she was awarded only an 8% wage-loss disability.\nIn addition, she argues that in order to prevent her from being classified under the odd-lot doctrine, Therma Tru has the burden of going forward with evidence by showing that some kind of suitable work is regularly and continuously available to her.\nWe disagree with Ellison, and find that there is substantial evidence to support the Commission\u2019s findings. Although she testified that she is unable to maintain a job due to her back condition combined with her respiratory condition, testimony was presented from Dr. Heim that she is improving and that she could maintain a sedentary job. Ellison also stated during her testimony that she thought she \u201ccould do sedentary work.\u201d\nEven though Dr. Sills stated that, as of 1993, Ellison was unable to work due to severe congestive obstructive pulmonary disease, Dr. Nichols stated in 1994 that she had mild obstructive pulmonary impairment resulting in a moderate degree of functional impairment . The Commission specifically relied upon Dr. Nichols\u2019s testimony in rendering its decision.\nAs we have stated, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Dep\u2019t of Health v. Williams, supra. We defer to the Commission\u2019s findings on what testimony it deems to be credible. Arkansas Dep\u2019t of Health v. Williams, supra. When there are contradictions in the evidence, it is within the Commission\u2019s province to reconcile conflicting evidence and to determine the true facts. When the Commission chooses to accept the testimony of one physician over another in such cases, we are powerless to reverse that decision. Patterson v. Arkansas Dep\u2019t of Health, supra. Here, the Commission chose to believe Dr. Heim\u2019s testimony that Ellison could do sedentary work. In addition, she stated that she could. Therefore, we find that there is substantial evidence to support the Commission\u2019s opinion that Ellison did not make a prima-facie case that she is permanently and totally disabled and, therefore, does not fall within the odd-lot doctrine.\nIn addition, we reject Ellison\u2019s argument that she should be considered to be permanently and totally disabled under the odd-lot doctrine because Therma Tru did not present evidence that sedentary work is available. The burden did not shift to Therma Tru to show work that was readily and consistently available and within Ellison\u2019s capabilities because, as the Commission found,Ellison never made a prima facie case that she was permanently and totally disabled. See Patterson v. Arkansas Dep\u2019t of Health, supra; Buford v. Standard Gravel Co., supra.\nThe dissenting judges disagree with the Commission\u2019s conclusion that Ellison failed to make a prima-facie case that she fell within the odd-lot doctrine, and they suggest that the Commission improperly considered the credibility of witnesses and the preponderance of the evidence in reaching that conclusion. No doubt, there is room to disagree with the Commission\u2019s opinion, but this court\u2019s duty on review is to determine whether there is any substantial evidence in the record that supports the findings of the Commission. In doing so, we are not to substitute our judgment concerning matters of credibility for that of the Commission and the Commission is the trier of fact. Riverside Furniture Co. v. Loyd, 42 Ark. App. 1, 852 S.W.2d 147 (1993); Jackson Cookie Co. v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986). While it is also true, as the dissent suggests, that the issue of whether the appellant made a prima-facie showing that she fell under the odd-lot doctrine is a question of law, it is equally true that the Commission cannot answer that question in a vacuum. The Commission must first determine the facts to which the law is to be applied, and when the facts are in dispute, the Commission must determine what evidence is credible and in which party\u2019s favor the evidence preponderates. Riverside Furniture Co. v. Loyd, supra; Jackson Cookie Company v. Fausett, supra.\nThe Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950), and Brock v. Bates, 227 Ark. 173, 297 S.W.2d 938 (1957), cases cited in the dissenting opinion are simply not applicable to the case at bar. First, they are not workers\u2019 compensation cases. Second, they involve the interpretation of a now-nonexistent statute that formerly provided for a demurrer to the evidence in chancery and probate cases. Werbe and Brock stand for nothing more than what was formerly a well-established rule that in passing upon demurrers to the evidence in chancery and probate cases, the trial court was required to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only when the plaintiff\u2019s evidence, when so considered, fails to make a prima-facie case.\nThe dissent has cited no authority to support its contention that, in workers\u2019 compensation cases, the Commission cannot consider the credibility of witnesses and the weight of the evidence in determining whether a claimant has presented a prima-facie case that he falls within the odd-lot doctrine. Even in Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999), relied on by the dissent, we recognized the obligation of the Commission to consider all competent evidence relating to a claimant\u2019s disability in determining the applicability of the odd-lot doctrine. Also, in Ellison\u2019s first appeal to this court, when we remanded the case to the Commission to consider the application of the odd-lot doctrine, we instructed the Commission to consider all competent evidence relating to her incapacity, including the age, education, medical evidence, work experience, and other matters reasonably expected to affect the claimant\u2019s earning power. See Ellison v. Therma-Tru, supra. Nor does the dissent cite authority to support its position that the Commission may consider only the evidence that is favorable to the claimant.\nFinally, the dissent suggests, again without citation to any authority, that this court, in reviewing the Commission\u2019s finding that Ellison did not prove that she fell within the odd-lot doctrine, cannot apply the substantial-evidence standard of review. Ironically, in every odd-lot case cited by the dissenting opinion in support of its position that Ellison met the requirements for odd-lot consideration, the substantial-evidence standard of review was applied by this court.\nAffirmed.\nHart, Koonce, Stroud, Meads, and Roaf, JJ., agree.\nRobbins, CJ., and Griffen and Neal, JJ., dissent.\nNeither the Second Injury Fund nor Therma Tru cross-appealed the Commission\u2019s award, leaving the only issue on appeal whether Ellison is permanently and totally disabled under the odd-lot doctrine.\nPatterson v. Arkansas Dep\u2019t of Health, 70 Ark. App. 182, 15 S.W.3d 701 (2000)(\u201cwe review the evidence and all inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence.\u201d); Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999) (\u201cOur standard of review on appeal is whether the decision of the Commission is supported by substantial evidence.\u201d); Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 Ark. 456 (1992) (\u201cthe substantial evidence standard of review requires us to affirm if the Commission\u2019s opinion displays a substantial basis for the denial of relief.\u201d); M.M. Cohn Co. et al. v. Pauline Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979) (\u201c\"We hold there is substantial evidence this claimant is totally disabled.\u201d); Walker Logging v. Paschal, 36 Ark. App 247, 821 S.W.2d 786 (1992) (\u201cWhen reviewing a decision of the Workers\u2019 Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence.\u201d).", "type": "majority", "author": "Sam BIRD, Judge." }, { "text": "Wendell L. GRIFFEN, Judge,\ndissenting. I would reverse this decision and remand to the Workers\u2019 Compensation Commission with directions that appellant be awarded permanent and total disability benefits. First, the Commission erred as a matter of law when it held that appellant failed to make a prima facie case under the odd-lot doctrine. Second, the Commission improperly undertook a credibility assessment and weighed the preponderance of the evidence in deciding that appellant had not made a prima facie case under the odd-lot doctrine. Finally, nothing authorizes this court to review the Commission\u2019s errant decision on whether appellant made a prima facie showing under the odd-lot doctrine a pure question of law using a substantial evidence standard of review applicable to the Commission\u2019s findings of fact. Therefore, I must dissent.\nBecause appellant proved that she is unable to engage in sustained effort involving sitting, standing, walking, or lifting due to her compensable injury and other health condition, her advanced age, education, and other vocational history, the Commission should have held as a matter of law that appellant is prima facie within the odd-lot category of disabled workers and that the burden shifted to the employer to show evidence of suitable work that is regularly and continuously available to her. We have reversed the Commission and remanded with directions to award permanent and total disability benefits in similar situations where employers failed to produce proof of suitable work after injured workers presented evidence that the effects of their injuries combined with age, education, and vocational history put them in the odd-lot category of disabled workers. See Patterson v. Arkansas Dep\u2019t. of Health, 70 Ark. App. 182, 15 S.W.3d 701 (2000); Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999); Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992).\nMoreover, a half century of Arkansas law holds that it is reversible error to undertake credibility assessments or weighing of the evidence in deciding whether a party has presented prima facie evidence. See Brock v. Bates, 227 Ark. 173, 297 S.W.2d 938 (1957); see also Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950). The Commission was plainly wrong to ignore this body of law, and the majority is wrong when it treats the Commission\u2019s error as a credibility issue subject to the substantial evidence standard of review.\nAppellant was sixty-one years of age when she testified before the Commission in her claim for permanent total disability benefits; she is now sixty-five. She has a tenth-grade education. Appellant suffers from chronic obstructive pulmonary disease, residual effects from her May 8, 1991, work-related back injury, and undisputed back problems that pre-dated the compensable injury. Despite these difficulties, appellant continued working for Therma Tru until 1993 when a company physician removed her from her job. She testified at the hearing that she is willing to attempt sedentary work even though she does not know what sedentary work means. There is no evidence in the record about employment that a person of her limited physical ability, education, and vocational history can regularly perform. Although physicians have recommended that appellant pursue sedentary work and she testified that she was willing to do sedentary work, appellant testified she cannot engage in sustained walking, standing, or other effort without experiencing breathing difficulty due to her respiratory disease. Even sedentary workers such as lawyers and judges must be able to sit for sustained periods of time. Appellant also testified that constant back pain prevents her from sitting, standing, or walking for sustained periods of time. Appellant introduced proof that she cannot do so. Hence, it is astounding that the majority now affirms the Commission\u2019s bizarre decision that appellant failed to make a prima facie case under the odd-lot doctrine.\nAct 796 of 1993 abolished the odd-lot doctrine for permanent disability claims in Arkansas based on injuries that occurred after July 1, 1993 (see Ark. Code Ann. \u00a7 ll-9-522(e) (Repl. 1996)); however, the doctrine was alive and fully applicable to appellant\u2019s disability claim stemming from her 1991 compensable injury and its recurrences. Until the General Assembly abolished the odd-lot doctrine by Act 796 of 1993, Arkansas had long recognized that one need not be utterly and abjectly helpless to be deemed totally disabled. Rather, our decisions hold that the odd-lot doctrine refers to employees who are able to work only a small amount; the fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. See M.M. Cohn v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979). We have also held that when the overall evidence places a worker prima facie within the odd-lot category, the employer bears the burden of proving the existence of suitable work that is regularly and continuously available to the worker. See Walker Logging v. Paschal, 36 Ark. App. 247, 821 S.W.2d 786 (1992). See also M.M. Cohn, supra.\nAs stated in Larson\u2019s Workers\u2019 Compensation Law treatise:\nUnder the odd-lot doctrine, which is accepted in virtually every jurisdiction, total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above crippling handicaps.\nId. at \u00a7 83.01. Larson traced the origin of the term \u201codd-lot\u201d to the King\u2019s Bench case of Cardiff Corp. v. Hall, 1 K.B. 1009 (1911), where Judge Moulton addressed the rationale for the phrase and its bearing on the issue of total disability as follows:\n[Tjhere are cases in which the onus of shewing that suitable work can in fact be obtained does fall upon the employer who claims that the incapacity of the workman is only partial. If the accident has left the workman so injured that he is incapable of becoming an ordinary workman of average capacity in any well known branch of the labour market \u2014 if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well known lines of the labour market, I think it is incumbent upon the employer to shew that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase, I should say that if the accident leaves the workman\u2019s labour in the position of an \u2019odd lot\u2019 in the labour market, the employer must shew that a customer can be found who will take it . . .\nId. at 1 K.B. 1020-21.\nJudge Benjamin Cardozo (who later became an associate justice of the U. S. Supreme Court) adeptly described the plight faced by such a disabled worker in Jordan v. Decorative Co., 230 N.Y. 522, 130 N.E. 634 (1921), as follows:\nHe [the disabled worker] was an unskilled or common laborer. He coupled his request for employment with notice that the labor must be light. The applicant imposing such conditions is quickly put aside for more versatile competitors. Business has little patience with the suitor for ease and favor. He is the \u201codd lot\u201d man, the \u201cnondescript in the labor market.\u201d Work, if he gets it, is likely to be casual and intermittent. . . . Rebuff, if suffered, might reasonably be ascribed to the narrow opportunities that await the sick and the halt.\nId., at 525, 130 N.E. at 635-36.\nIn M.M. Cohn, supra, Judge David Newbern wrote that the \u201codd lot doctrine refers to employees who are able to work only a small amount. The fact they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible.\u201d See M.M. Cohn, 267 Ark. at 736, 589 S.W.2d at 602. In that case our court affirmed an award of permanent and total disability benefits a woman sixty-two years of age, who suffered a shoulder fracture in a workplace fall, which left her unable to do anything but limited work.\nIn Walker Logging, supra, we affirmed the Commission\u2019s award of permanent and total disability benefits under the odd-lot doctrine to a man in his late forties whose right knee was injured when a tree fell on him while he worked as a timber cutter. In that case, the Commission held that based upon the claimant\u2019s mental capacity, age, education, work experience, and physical impairment and limitations, he established a prima facie case that he fell within the odd-lot category, which shifted to the employer the burden of producing evidence that some kind of suitable work was regularly and continuously available to him.\nLast year we reversed and remanded for award of permanent total disability benefits a case where the Commission denied a claim asserted by a forty year-old worker who had fifteen percent permanent anatomical impairment from two back surgeries, was unable to speak above a whisper due to a crushed larnyx suffered in a prior workplace accident for a different employer, and who was a high school graduate. See Buford v. Standard Gravel Co., 68 Ark. 162, 5 S.W.3d 478 (1999). In that case, the Commission was unimpressed with the appellant\u2019s credibility and motivation to return to work based on proof that he drank beer, enjoyed deer hunting, fishing, and camping, and his ability to shop with his wife, garden, and mow his lawn. We rejected the Commission\u2019s analysis and reasoned as follows:\nWhen Buford\u2019s age, education, work experience, and medical restrictions are considered together, Buford made a clear and convincing prima facie case that he was totally and permanently disabled by his throat injury and his three back injuries. The burden then shifted to the employer to show that work is readily and consistently available within appellant\u2019s restrictions in his hometown of El Dorado, Arkansas. The employer failed to meet that burden . . . The Commission should have awarded Buford permanent and total disability benefits. We reverse and remand for it to enter the order.\nId. at 169-70, 5 S.W.3d 483-84.\nEarlier this year, we reversed the Commission in another odd-lot case and remanded so that permanent total disability benefits could be awarded to a forty-seven year old registered nurse who worked in an administrative position for the Arkansas Department of Health when she suffered a back injury after reaching across her desk to plug in a surge protector. See Patterson v. Arkansas Dep\u2019t. of Health, 70 Ark. App. 182, 15 S.W.3d 701 (2000). Patterson eventually underwent five spinal surgeries, developed the painful condition of arachnoiditis in the lower thecal sac, developed a cerebrospinal fluid leak, and suffered from migraine headaches, Sjogren\u2019s syndrome, depression, and other conditions. Due to these medical problems, she testified that she spent most of the day in bed because of pain, generally spent the morning sitting in a recliner, and was unable to walk any distance. The Commission found that she had not been rendered permanently and totally disabled, stating:\nEven though she is severely limited by her physical condition and the effects of the medication related to her compensable injury, she has been able to undertake limited employment by being on call, being available to give advice over the telephone, and by doing paperwork, employment which is not constant in its demands on the claimant\u2019s time, but which is not full time and are [sic] not widely available with other employers.\nId. at 191, 15 S.W.3d at 707. The appellant argued on appeal that the Commission erred because the odd-lot doctrine applied to her 1991 injury. We agreed, and reversed and remanded for an award of permanent total disability benefits, stating:\n[W]e think it significant that the . . . ALJ\u2019s opinion states that appellant has performed some employment which is not constant in its demands on the claimant\u2019s time, but which is not full-time and is not widely available with other employers. This language substantially tracks the language required for a finding of total disability under the odd-lot doctrine.\nConsidering appellant\u2019s obvious physical impairment, work experience, and medical evidence, we hold that appellant made a prima facie case that she was totally and permanendy disabled as a result of her five surgeries necessitated by her compensable injury, and the burden shifted to appellee to show that work is readily and consistently available within appellant\u2019s capabilities. Appellee did not meet this burden, and indeed the law judge recognized that any work appellant performed was not full-time and not readily available with other employers. The Commission should have awarded appellant permanent and total disability benefits; therefore, we reverse and remand for an award of benefits.\nId., 15 S.W.3d 708.\nWe also reversed the Commission in a previous opinion after the Commission refused to analyze this case under the odd-lot doctrine. See Ellison v. Therma Tru, 66 Ark. App. 286, 989 S.W.2d 987 (1999). When the Commission considered the case on remand from our previous decision, it did not determine if the employer met its burden of producing evidence of employment that is regularly and continuously available in the labor market within appellant\u2019s limited capacity in light of our decisions applying the odd-lot doctrine. Instead, the Commission held that appellant failed to make a prima facie showing that she falls in the odd-lot category.\nThe Commission announced its decision regarding appellant\u2019s claim for permanent and total disability benefits as follows:\nWe find that the record fails to establish by a preponderance of the credible evidence that the claimant is totally disabled or that she has established a prima facie case that she falls within the odd lot (sic) category. In reaching this conclusion, we initially note that the claimant has failed to present any evidence from a physician or from a vocational counselor indicating that the claimant is currently totally incapacitated from working or indicating that the claimant is injured to such an extent that any employment services she can perform are so limited in quality, dependability, or quantity that a reasonably stable market does not exist for her services. To the contrary, the only physician to examine the claimant since 1993 was Dr. Heim. Dr. Heim indicated on February 6, 1997, that the claimant\u2019s back-related symptoms were slightly improved from 1993, and Dr. Heim opined that the claimant could have a sedentary job. Dr. Heim did not schedule any follow-up appointments, but indicated that he would see the claimant on an as-needed basis if her symptoms worsened.\nWith regard to the claimant\u2019s respiratory condition, and her testimony that her condition had worsened over the last two to three years, and more so over the last two to three months, the claimant has failed to present any medical evidence to corroborate her testimony that her respiratory condition had, in fact, recently deteriorated. As the Court noted, Dr. Sills\u2019 records indicate that he gave the claimant a note on October 11, 1993, stating that she was unable to work due to her severe COPD and back pain. However, the claimant subsequently underwent pulmonary function testing on January 10, 1994, performed by Dr. David Nichols. His interpretation was mild obstructive pulmonary impairment with a moderate degree of functional impairment. In light of Dr. Nichols\u2019 conclusion in 1994 that the claimant had a mild obstructive pulmonary impairment with a moderate degree of functional impairment, and in light of Dr. Heim\u2019s assessment in 1997 that the claimant could return to sedentary work, ive are not persuaded that no employer would hire her in her condition. The claimant has acknowledged that she has not sought any employment from any employer (other than from the respondent) since she last worked in 1993. In light of the medical reports of Dr. Nichols and Dr. Heim, we are not persuaded by the claimant\u2019s testimony that she has presented a prima facie case that she falls within the odd lot category.\n(Emphasis added.)\nThe Commission\u2019s opinion in the instant appeal does not suggest how its evaluation of the opinions by Dr. Nichols and Dr. Heim nullified the appellant\u2019s testimony that she cannot engage in sustained walking, standing, sitting, or other effort due to her back pain and respiratory condition. Nor does the Commission\u2019s opinion favor us with clues about how a worker in her sixties with a tenth-grade education and lifelong history of manual labor might not suffer a competitive disadvantage for employment when she suffers from a disabling back injury and respiratory condition, even if those conditions are considered \u201cmild\u201d or \u201cmoderate.\u201d Arkansas law does not require undisputed medical testimony to establish that a claimant has sustained a substantial decrease in her capacity to compete for employment in the open market. One need only read our recent nine-judge decision in Patterson, supra, to understand that even in the face of conflicting medical evidence and proof that a disabled worker can perform sedentary work, we decide, as a matter of law, whether the worker\u2019s impairment, work experience, age, education, and other factors affecting disability constitute a prima facie case for application of the odd-lot doctrine.\nTherma Tru could have rebutted appellant\u2019s prima facie case by simply producing evidence of regularly and continuously available sedentary work in the labor market. But Therma Tru failed to do so. Like the employers in Buford and Patterson, supra, Therma Tru failed to produce any proof of regularly and continuously available sedentary work in the labor market for someone in appellant\u2019s condition. Thus, the Commission should have awarded permanent total disability benefits to appellant consistent with the long line of Arkansas cases that apply the odd-lot doctrine. The Commission\u2019s refusal to do so after we reversed it for failing to apply the odd-lot doctrine to the case manifests a calculated intent to avoid applying the odd-lot doctrine at all, as if Act 796 of 1993 had retroactive effect, despite our previous decision holding that an Act 796 analysis had no place in determining the outcome of this 1991 claim.\nOdd-lot category determinations are no different from other situations involving prima facie evidence. Black\u2019s Law Dictionary defines prima facie evidence as \u201cevidence good and sufficient on its face; [s]uch evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party\u2019s claim or defense, and which if not rebutted or contradicted, will remain sufficient.\u201d Black\u2019s Law DICTIONARY 1190 (6th ed. 1990) (emphasis added). See also Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). The case of Swink v. Giffn, 333 Ark. 400, 970 S.W.2d 207 (1998), shows that it is reversible error for a trier of fact to weigh the evidence in determining whether a party has established a prima facie case. In that case, a chancellor granted a defense motion to dismiss at the close of the plaintiff\u2019s case. In addressing the chancellor\u2019s decision, Justice David Newbern wrote:\nThe question, generally, is whether the plaintiffs presented a prima facie case, just as in jury trials where a verdict may be in prospect. Our holding is that the dismissal was premature, and thus we reverse and remand the case. . .\nWhile we understand that the Chancellor\u2019s action was based on her assessment of the credibility of the testimony presented by the plaintiffs, it was error for her to have made that assessment prior to the conclusion of the evidentiary portion of the trial. In a long line of cases, beginning with Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950), we have held that a chancellor\u2019s duty in the circumstance presented here is to review the defense motion for dismissal at the conclusion of the plaintiffs\u2019 case by deciding whether, if it were a jury trial, the evidence would be sufficient to present to the jury. . . .\nIn Neely v. Jones, 232 Ark. 411, 337 S.W.2d 872 (1960), we recited the same rule as in the Werbe case. . . Justice George Rose Smith wrote for a unanimous court:\n\u201cEver since the decision in Werbe v. Holt [citation omitted] , we have consistently held that a demurrer to the plaintiff\u2019s evidence should be sustained only if that proof, viewed in its most favorable light, would present no question of fact for a jury if the case were being tried at law. In such a case the chancellor does not exercise fact-finding powers that involve determining questions of credibility or of the preponderance of the evidence. Brock v. Bates, 227 Ark. 173, 297 S.W.2d 938 (1957). [Emphasis supplied.]\nNeely v. Jones, 234 Ark. 812, 813, 354 S.W.2d 726, 727 (1962). Other cases in which we have reached the same result include Minton v. McGowan, 253 Ark. 945, 490 S.W.2d 136 (1973); Pults v. Pults, 236 Ark 434, 367 S.W.2d 120 (1963); and Wood v. Brown, 235 Ark. 500, 361 S.W.2d 67 (1962).\n333 Ark. at 403-04, 970 S.W.2d at 208-09 (emphasis in original).\nThus, for a half century Arkansas law has recognized that whether a party has presented prima facie evidence is not a question of fact to be determined by either the preponderance of the evidence or by assessing credibility. Yet the Commission expressly committed that error, as demonstrated by its statement that \u201cwe are not persuaded by the claimant\u2019s testimony that she has presented a prima facie case that she falls within the odd lot category.\u201d\nI refuse to stand Arkansas law on its head and compound the Commission\u2019s blatant error by incorrectly applying a substantial evidence standard of review to a plain question of law. Whether a party presents prima facie evidence of a proposition is an issue of legal sufficiency, not a matter of credibility or persuasiveness. In this case the relevant inquiry is whether the proof was legally sufficient to establish that appellant is in the odd-lot category of disabled workers, meaning that she cannot obtain and hold regular and continuous employment unless extraordinary good will, sympathy, or other similar special circumstances operate in her favor. The Commission recounted the proof about appellant\u2019s compensable back injury, respiratory disease, limited education, manual labor work history, and the fact that those conditions affected appellant to the point that Therma Tru\u2019s doctor directed that she discontinue trying to work. Appellant has testified that she is unable to work. She plainly made a prima facie showing of being in the odd-lot category. Our decisions in Patterson, Buford, and Arkansas Lime Co., supra, and a host of other odd-lot cases, when coupled with other appellate decisions holding that credibility and persuasiveness are not proper matters to be considered in deciding if a party has made a prima facie case, deserve more deference than the spurious reasoning employed by the Commission in this case.\nWhat is equally disquieting is that the majority has analyzed the Commission\u2019s decision on whether appellant made a prima facie case under the substantial evidence standard of review, the standard we use to review the Commission\u2019s findings of fact. Werbe and the other decisions previously cited show that whether a party has made a prima facie case is a question of law; we review those rulings to determine if the law regarding legal sufficiency was properly applied, not whether the ultimate decision reached by the trier of fact is supported by substantial evidence. The majority does not burden its opinion with supporting authority for its unprecedented conclusion with good reason; no such authority can be found anywhere else in American jurisprudence.\nThe Commission was wrong when it assessed appellant\u2019s credibility to determine whether she made a prima facie showing of being in the odd-lot category of disabled workers. The Commission was wrong when it denied appellant\u2019s claim for permanent total disability benefits despite the employer\u2019s failure or refusal to prove that a single job existed for someone with appellant\u2019s physical restrictions, tenth grade education, and history of performing only manual labor. The majority is wrong to turn its back on the entire history of Arkansas case law regarding the odd-lot doctrine and the equally authoritative record of our case law showing that it is reversible error to assess credibility and weigh the evidence in determining whether a party has made a prima facie case. Therefore, I respectfully dissent and hope the Arkansas Supreme Court will grant review and reverse the Commission\u2019s unfair result and misguided reasoning.\nI am authorized to state that ROBBINS, C.J., and NEAL, J., join this opinion.\nThe odd-lot doctrine is accepted in \u201cvirtually every jurisdiction\u201d according to Larson\u2019s Workers\u2019 Compensation Law treatise. See Larson\u2019s at \u00a7 83.01. Arkansas workers are now among the rare exceptions to whom the doctrine no longer applies, thanks to Act 796 of 1993\nOur previous opinion also reversed the Commission because it improperly determined appellant\u2019s anatomical impairment based on applying the \u201cmajor cause\u201d analysis of Act 796, specifically Ark. Code Ann. \u00a7 11 \u2014 9\u2014 102(F)(1987), and omitted consideration of appellant\u2019s obstructive pulmonary disease, which had been fully corroborated by the medical evidence and uncontradicted by any other proof. To that extent, the Commission\u2019s decisions in this case demonstrate a troubling tendency to employ Act 796 reasoning even where the record abundantly shows that Act 796 has no bearing whatsoever.", "type": "dissent", "author": "Wendell L. GRIFFEN, Judge," } ], "attorneys": [ "Walker, Shock, Harp & Hill, P.L.L.C., by: Eddie H. Walker, Jr., for appellant.", "Ledbetter, Cogbill, Arnold & Harrison, L.L.P., by: E. Diane Graham, for appellee Therma Tru." ], "corrections": "", "head_matter": "Sarah ELLISON v. THERMA TRU; Liberty Mutual Insurance Company; and Second Injury Fund\nCA 00-126\n30 S.W.3d 769\nCourt of Appeals of Arkansas Divisions I, II, and III\nOpinion delivered November 15, 2000\nWalker, Shock, Harp & Hill, P.L.L.C., by: Eddie H. Walker, Jr., for appellant.\nLedbetter, Cogbill, Arnold & Harrison, L.L.P., by: E. Diane Graham, for appellee Therma Tru." }, "file_name": "0410-01", "first_page_order": 442, "last_page_order": 465 }