DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA02-28

September 11, 2002

McKESSON SERVICE AN APPEAL FROM ARKANSAS

MERCHANDISING, GALLAGHER WORKERS' COMPENSATION

BASSET SERVICE, INC. COMMISSION [E307170]

APPELLANTS

V.

JEFF WEAVER

APPELLEE AFFIRMED

This case arises from a compensable work injury. McKesson Service Merchandising and Gallagher Bassett Service, Inc., appeal from a Workers' Compensation Commission (Commission) opinion which found that appellee Jeff Weaver falls into the odd-lot category and that appellants failed to prove by a preponderance of the evidence that suitable employment is available for appellee. Appellants primarily argue that the Commission did not base its decision upon substantial evidence. We disagree and affirm.

Notably, the briefs, as submitted, included the Death & Permanent Disability Trust Fund as another appellant party in the briefs' captions. The Trust Fund also submitted additional arguments in a separate brief for our consideration on appeal. However, we do not have a notice of appeal from the Trust Fund before us, and therefore cannot reach the merits of the Trust Fund's argument. See Warnock v. Warnock, 336 Ark. 506, 507, 988S.W.2d 7, 8 (1999).

On April 22, 1993, appellee had a motor vehicle accident during his employment as a truck driver. Even though none of the medical findings in this case are in dispute, it should be helpful to summarize appellee's medical history relevant to his work injury. In the accident, appellee sustained multiple bone fractures and severe injuries, requiring a total hospitalization of six weeks and several surgeries. Because appellee experienced problems with his knee, his orthopedic specialist, Dr. Duke Harris, ordered an MRI which revealed evidence of effusion on his knee, as well as evidence of anterior cruciate and posterior cruciate ligament tears. It was Dr. Harris's opinion that the damage was a result of appellee's accident injury. He performed surgery on the right knee and issued an opinion stating that appellee would not be able to resume any work which required him to drive or to be on his feet for more than short periods of time. During follow-up visits in 1996 and 1997, Dr. Harris maintained the opinion that appellee remains totally disabled.

Further medical examinations by appellants' specialists revealed an even larger extent of possible neurological damage in appellee. Dr. Rutherford, one of the examining physicians, opined that appellee sustained permanent and irreversible injury to the peripheral nervous system, resulting in moderate abnormality. Dr. Rutherford further expressed the opinion that appellee should not return to truck driving and recommended a functional capacity evaluation.

On November 18, 1999, a functional capacity evaluation took place. The test showed that appellee began limping after several hours of testing, but otherwise exhibited a good gaitpattern, with good overall mobility and good sitting tolerance, albeit with some indications of difficulty. Appellee was found to be able to lift and carry weights up to 57 pounds. However, appellee demonstrated difficulty with work activities that require fast movements, or frequent stresses such as pushing, pulling, climbing, squatting, and kneeling.

Appellee's permanent physical impairments, neurological as well as orthopedic, received repeated attention of medical examinations, all of which appear to suggest that appellee has decreased mobility and work ability, pointing out that appellee should not resume work as a truck driver, but not necessarily excluding the possibility of other employment. However, appellee complained of constant pain, particularly to his family physician, Dr. Thomas Leslie, leading that physician to opine that appellee is totally disabled.

During 1999, appellants engaged the services of Ms. Gay Signoff to conduct a vocational evaluation of the claimant and to provide job placement assistance to him. Ms. Signoff has about thirteen years of experience as a vocational counselor, but only a high school education and on-the-job training. She met with appellee, obtained a functional capacity evaluation, a transferable skills analysis, and a labor market survey. Ms. Signoff stated the opinion that appellee had various employment opportunities in his home area, suitable for appellee's physical limitations, but appellee did not accept her help in obtaining employment. The suggested employment opportunities ranged from dispatching work to guard duties and sales jobs. When contacting prospective employers, appellee always informed them of his disability. Since his initial recovery from his injuries, appellee has not taken any employment.

In his turn, appellee also submitted a vocational assessment report from Mr. Bob White. Mr. White stated that appellee is not employable based on his age, physical condition, and education. Appellee was born in 1942 and completed high school as well as one semester at the University of Arkansas at Fayetteville. Appellee also testified that, despite being able to engage in various activities, he has to sit in his recliner and rest after any strenuous activity, and that he cannot do anything for more than three or four hours at a time without taking a break.

At home, appellee is involved in his and his son's cattle and turkey farming operations. He operates a tractor on the farm, does some mechanic work, and handles bales, feed cubes, and 50-pound-bags. Appellee has fixed the fence when needed and checks on the cattle. Appellee also helps in the turkey business he has with his son. They have three turkey houses with approximately 6,000 turkeys in each house. Appellee helps to water the houses and to attend to the baby birds. There appears to be in place partially automated equipment that eases a number of necessary chores around the turkey houses. In past years, he also cut wood for himself and his aging mother, although he also received help by his children in this task. Appellee mows the lawn with a riding lawn mower, and occasionally goes hunting and fishing.

Additionally, appellee is the chief of the local volunteer fire department. His duties involve daily checking on the station, which is located a fourth of a mile from his home, responding to alarm calls, and heating the building in the winter. He has driven the fire truck a few times if no one else was available. One time, appellee tended to a fire, with the helpof one other man. Generally, however, appellee only supervises his crew. Appellee attended three certification courses for his position as Chief, and he is the training officer for his department. As such, he has training sessions once a month. The briefs remain silent on how much actual activity this involves. He also has monthly meetings with the Emergency Service Coordinator in Marion County.

Appellee is also a Quorum Court member for one county district, for which position he has been re-elected repeatedly. The position carries with it some compensation, namely $1,800 per year in 1998, and an additional $125 for regular meetings, as well as $40 for committee meetings. At the time this dispute arose between the parties, appellee received $1,270 per month from social security disability and $1,100 per month from his pension from McKesson, as well as his compensation as a Quorum Court member and any other income from his cattle and turkey business activities.

Based on the foregoing, appellants notified appellee on April 1, 1999, that he no longer qualified as being permanently and totally disabled. Up to that time, appellee had received medical benefits and temporary total disability benefits until he reached the end of his healing period on June 1, 1994. Appellants paid permanent total disability benefits from June 1, 1994, until April 1, 1999, when they unilaterally terminated the benefits and contended that appellee was no longer totally disabled. Upon request of appellee, a hearing was conducted on December 7, 2000, before an Administrative Law Judge (ALJ) of the Arkansas Workers' Compensation Commission.

The ALJ found that appellee had made a prima facie showing that he falls in the odd-lot category and that the appellants failed to prove by a preponderance of the evidence that suitable employment is continuously available for him. The ALJ further found that the appellee established that he is permanently and totally disabled as a result of his compensable injury. Further, the ALJ found that the appellants controverted the appellee's entitlement to permanent and total disability compensation. Appellants filed an appeal for review by the Commission.

The Commission, on October 12, 2001, affirmed and adopted the ALJ's opinion, stating that there was a lack of evidence that there had been a change in the appellee's condition to show that he is no longer permanently and totally disabled. Appellants bring this appeal and we affirm the Commission.

I. Odd-Lot Category

Appellants first argue that the Commission erred in finding that appellee falls under the odd-lot doctrine. We review Workers' Compensation Commission decisions by determining whether there is substantial evidence to support the decision of the Commission. Rice v. Georgia-Pacific Corp., 72 Ark. App. 149, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). We also note that the Commission's conclusions in matters of witness credibility generally are given deference by this court, but, as findings of fact, still fall under our substantial evidence review. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 263, 35 S.W.3d 335, 343 (2000) (Robbins, C.J., concurring).

Because appellee's injury occurred over two months before Act 796 of 1993 became effective on July 1, 1993, prior law applies. Therefore, we need to consider whether the Commission correctly applied the odd-lot doctrine to the present case. Under the odd-lot doctrine, an employee benefits "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." Goodwin v. Phillips Petroleum Co., 72 Ark. App. 302, 37 S.W.3d 644 (2001). The claimant must establish a prima facie showing of being in the odd-lot category based upon factors such as permanent impairment, age, mental capacity, education, and training. Id. If the claimant succeeds in making such a showing, the burden falls upon the employer to show "that some kind of suitable work is regularly and continuously available to him." Id.

The Commission may consider a claimant's loss in wage earning capacity by taking into account factors such as the claimant's age, education, work experience, and other factors. Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Additionally, the claimant's motivation to return to work, post-injury earnings, credibility, or demeanor are all factors to consider when determining wage loss disability. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).

Appellants contend that appellee is not entitled to permanent and total disability benefits and that appellee does not fall under the odd-lot doctrine. They primarily hinge their argument on a variety of appellee's activities, ranging from farm work to quorum court and fire chief positions. Appellants also argue that appellee has no motivation to seekemployment because he (1) has no financial incentive, earning currently in excess of $2,300 per month, and (2) is too involved in his personal endeavors to be able to seek outside employment.

We hold that substantial evidence exists to support the Commission finding that appellee falls under the odd-lot doctrine. The Commission weighed the available evidence so that it could arrive at that conclusion, particularly testimony of the appellee himself and testimony of the vocational specialists. Notwithstanding the relatively large scope of appellee's activities, the Commission chose to believe appellee's testimony that he may be able to engage in a number of activities, but must rest after three or four hours of sustained activity and cannot work continuously for an 8-hour day, respectively a 40-hour week. Additionally, the Commission appears to have deemed the testimony of appellants' vocational specialist, Ms. Signoff, less credible than the testimony of appellee's vocational specialist, Mr. White because of Ms. Signoff's lack of formal training in vocational counseling. As noted above, this court pays deference to the Commission's findings of fact pertinent to witness credibility if those findings are supported by substantial evidence. There is nothing in the record suggesting that the Commission's finding on Ms. Signoff's credibility is not supported by substantial evidence. There is also nothing to suggest that there is no substantial evidence to support the Commission's determination regarding appellee's testimony. The Commission, through its ALJ, whose opinion the Commission adopted, had the opportunity to examine the witnesses, not this court. Therefore, we pay deference to the Commission's findings and find no lack of substantial evidence.

It is certainly correct that appellee appears to be quite capable of conducting a variety of activities, based on his personal and public engagements. However, our holding that the Commission's assessment is supported by substantial evidence is controlling on appellants' remaining arguments. In fact, as appellants point out themselves, age and education of the claimant are two of the factors to consider when determining work loss disability. Presently, the claimant is 60 years of age. Combining this fact with his physical disadvantage due to his compensable work injury, appellee's status as one under the odd-lot doctrine appears quite supported by substantial evidence. An employee under the odd-lot doctrine can only perform services "so limited in quality, dependability, or quantity" that no market for him exists. Appellee's inability to sustain a productive performance throughout the workday, without taking longer rests, appear to be "so limited."

In addition, appellants point at appellee's "college education." One semester of college work simply does not qualify as college education. Again, the Commission had substantial evidence that appellee could not work in a manner as would be expected from a regular employee, and factors such as his age and lack of formal education rather support appellee's contention to fall under the odd-lot doctrine than appellants' contention that appellee remains employment-marketable. His only job experience, outside his personal activities, was that of a truck driver. Even appellants admit that he cannot drive a truck anymore. While there certainly are a number of jobs that could be performed by people with certain physical impairments, appellee has demonstrated that he cannot perform any activity without taking longer periods of rest, particularly anything that includes heavier physicalduties, but also simple work conditions such as extended sitting.

Overall, appellants essentially argue that the list of appellee's personal activities somehow translate into regular employability. Their argument, however, ignores that the record is devoid of any evidence that would tend to show appellee engaging regularly in heavy or any other employment-like work activity. Rather, the record reveals that appellee occasionally has done more than he should have, or normally would do. Therefore, appellants' argument fails to convince. Even given appellee's testimony that he rarely stays in the house for longer than a few hours per day, this testimony does not prove that appellee is actually engaged in employment-like activities for the remaining hours of the day. Even given that appellee sometimes lifted something heavy, on a few occasions drove a truck, or even assisted in an emergency call to the fire department, none of this evidence controverts appellee's proof that appellee falls under the odd-lot doctrine. This court looks for more sustained activity, such as proof of regular physical labor, not occasional physical labor, over a time period comparable to, e.g., a 40-hour work week, to find that the Commission's decision to place appellee under the odd-lot doctrine was not supported by substantial evidence. Notably, upon review before this court, we need only find that there is substantial evidence to support the Commission's determination. We need not find that there is no other possible interpretation of the facts.

Therefore, appellants had the burden to show that appellee had some suitable work regularly and continuously available to him. Again, the Commission simply found appellants' vocational counselor, Ms. Signoff, less credible than appellee's expert, Mr. White. Based on the record and briefs before us, we find ourselves unable to find error in that assessment. The Commission had substantial evidence to find that appellants failed to meet their requisite burden of proof. Consequently, we hold that the Commission correctly determined that appellee falls under the odd-lot doctrine and that appellants failed to prove the availability of suitable work for appellee.

II. Arkansas Rule of Appellate Procedure 6(c)

Appellee asserts that appellants disregarded their duty to properly abstract certain portions of the record, pursuant to Rule 6(c) of the Arkansas Rules of Appellate Procedure. The rule allows for an award of the costs involved in preparing a supplemental abstract. Appellee contends that appellants grossly omitted large portions of the examination of Ms. Signoff. However, appellants correctly point out that the only testimony abstracted more fully by the appellee are eleven lines containing information provided by the appellants in the Addendum of their brief, and information that is actually more favorable to appellants. Furthermore, appellee failed to reference any of the information appellee insisted on abstracting in his supplemental abstract. Therefore, we find no error and deny costs and expenses for the supplemental abstract.

Affirmed.

Roaf, J., agrees.

Pittman, J., concurs.