concurring. I agree that the Commission erred in refusing to consider whether the appellant was entitled to current total disability benefits; however, I put my decision upon a different basis than that of the majority opinion.
As I understand the opinion, the majority agrees with the appellant’s argument that the phrase “total disability,” found in Ark. Stat. Ann. § 81-1313(a) (Repl. 1976), is properly interpreted to include the concepts of “temporary total disability,” “current total disability,” and “permanent total disability.” Although I would be willing to so interpret the statute, I doubt that view is in keeping with the Arkansas Supreme Court cases of McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W.2d 502 (1966) and Arkansas State Highway Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).
In McNeely, the court held that an employee who suffers a scheduled injury “which proves to be totally and permanently disabling” is not confined to the restricted compensation specified for the scheduled injury but is entitled to the “greater benefits provided for total and permanent disability.” The opinion concluded as follows:
The appellees complain of the fact that the commission, in finding this claimant’s disability to be total, failed to find that it was also permanent. Instead the commission said that the duration of the disability is not determinable at this time. Inasmuch as there was substantial evidence that might have sustained a finding of permanency — a fact issue upon which we express no opinion — we fail to see how appellees are hurt by the commission’s deferment of this question until the exact extent of the disability might become clearer.
Six years later, the Arkansas Supreme Court again held that a scheduled injury may give rise to an award of compensation for “total disability,” and, without any reference to the term “permanent,” said the Commission’s finding of “total disability” was amply supported by the record. See Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W.2d 82 (1972). Then, almost ten years later, in the Breshears case, the Supreme Court held that under section 81-1313(a), supra, an employee is entitled to receive total disability benefits for that period within the healing period in which the employee suffers a total incapacity to earn wages. The court referred to this as “temporary total disability” and compared it with “temporary partial disability” which is expressly provided for under subsection (b) of section 81-1313. The court also made it. clear that the reason it held “temporary total disability” to be limited to the healing period was because subsection (a) is silent on the point, but subsection (c) expressly provides that an employee who sustains a scheduled injury is entitled to compensation for the healing period in addition to the compensation allowed for the scheduled injury.
It should be noted that in providing for total disability benefits, section 81-1313(a) does not use the terms “permanent” or “temporary.” Thus, it may be permissible to also apply the term “current” to the provision for total disability. On the other hand, it may be that the holding in Breshears has limited total disability benefits under section 81-1313 (a) to (1) where the disability is permanent and, (2) where the disability is temporary — that is, in existence only during the healing period. If this is the meaning of Breshears, and since the McNeely case was not even mentioned, it seems reasonable to assume that the concluding paragraph in McNeely means exactly what it says. In fact, the Arkansas Court of Appeals relied upon that meaning in Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984), where we said:
McNeely gave expression to a concept of applied law that remained without a label until City of Humphrey v. Woodward, 4 Ark. App. 64, 66, 628 S.W.2d 574 (1982), almost 16 years later. In that case, we adopted a phrase used for convenience by the Commission in its opinions and upheld the indefinite benefits of an employee found to be “currently totally disabled.” We discussed the development of this area of the law and observed that
now when we speak of total disability, such benefits may be denominated further in terms of “current” total, “limited” total or total disability benefits “until such time as total disability ceases.” . . . Obviously, in making such an award, the Commission remains hopeful that the claimant’s disability is not permanent and that he will eventually return to work.
In the instant case, we agree with appellee’s argument based upon McNeely, supra, and Taylor v. Pfeiffer Plbg. & Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983), that a claimant’s benefits for a scheduled injury are not limited to the benefits provided by Ark. Stat. Ann. § 81-1313(c) when the scheduled injury renders the claimant totally disabled. Here, the Commission found that appellee’s injuries rendered him totally disabled. The fact that the Commission found the total disability to be “currently” total seems to be no different from the situation in McNeely. We fail to see how the appellants are hurt by the possibility that the total disability in the instant case may not last forever.
See also the recent case of Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985), which relied upon Bemberg.
The view of the Commission in the past, as to the application of the concept of current total disability, is revealed in the Commission’s opinion in the instant case by the following quotation from a prior (unpublished) opinion written by a former chairman of the Commission.
It is perhaps appropriate to observe at this point that the Commission itself for the past few years has been increasingly applying the concept of current total disability (or something akin thereto without using that particular terminology) without really defining the doctrine, without stating its specific statutory authorization, and without describing its parameters. The increasing utilization of this concept, be it a judicial hybrid or whatever, has probably been brought about at least in part by the Arkansas Supreme Court decision in Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), absolutely restricting temporary total disability to the healing period as defined by Ark. Stat. Ann. § 81-1302(f). Oftentimes the Commission reviews cases in which the healing period has ended, the claimant is still totally disabled from working, but because of the claimant’s age or the nature of his disability, the Commission is reluctant to indelibly stamp the claimant permanently as well as totally disabled. Experience with virtually thousands of cases over the years has taught that even though the underlying condition may have stabilized and the claimant may have reached the maximum medical improvement, time itself has healing properties which occasionally return a once totally disabled worker to productive gainful employment.
The reasons for abandoning the use of the concept of current total disability as expressed in the Commission’s opinion in the instant case, written by the present chairman, seem to be that there is no statutory basis for it, plus an apparent agreement with the reasoning stated in the dissenting opinion in Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (Ark. App. 1980).
Under the statutory interpretations of the Arkansas Supreme Court, I agree there is no statute expressly authorizing the application of the concept of current total disability, but I also believe the application of that concept is not prohibited by statute. Therefore, I see no valid objection to the continued application of the holding in McNeely, which is based on the idea that employers, and their insurance carriers, cannot complain of the fact that the duration of the total disability found by the Commission was not determinable at that time. Although the issue is not before us, the same idea would seem to be applicable to an employee — as long as he is receiving current total disability benefits he should have no reason to complain that they may not last forever.
Except for the lack of a statutory basis, the objections to the concept of current total disability expressed in the dissenting opinion in Sunbeam are simply evaluations of conflicting considerations. Indeed, the dissent states that “in a way” the majority decision “makes good sense.” One objection expressed is that employers might try to “ride herd” on former employees found to have a “limited” total disability, and if the employee obtains “some sort of job” he would be “hauled back before the Commission for reevaluation.” In that event, I would think the burden would be on the employer to establish that the employee was no longer totally disabled. This is the rule where an insured has been found totally disabled under the provisions of an insurance policy and the company contends the disability has ended, DeSoto Life Insurance Co. v. Jeffett, 212 Ark. 798, 207 S.W.2d 743 (1948), and the situations are certainly similar. This rule, coupled with the likelihood of having to pay the fee of claimant’s attorney as a result of controverting the continuance of the total disability status, would serve to prevent the employer from abusing the right of hauling the employee back before the Commission. But, in any event, the employee in the instant case admits that the employer would have the right to future hearings to determine whether the total disability still existed.
It should also be noted that an amicus curiae brief filed by the Arkansas State AFL-CIO and the Arkansas Trial Lawyers’ Association strongly argues that the Commission “erred in abolishing a twenty year practice and policy of awarding disability benefits to injured employees who are unable to return to the workforce after the healing period has ended.” Stating that many of these employees “expect that in the near future they will adjust to the pain and discomfort and rejoin the workforce,” the brief contends that they should not be refused total disability simply because the Commission is not willing to make a finding that the disability will be permanent.
I concur in the result of the majority opinion and agree that this case should be reversed and remanded to the Commission for a rehearing and determination on the issue of current total disability.