dissenting. As I view this case, the crucial question is whether a 40% loss in the use of a leg because of a knee injury can render a claimant entitled to compensation benefits for permanent total disability under the statutory law as it now stands.
The claimant in this case sustained an injury to her knee resulting in a 40% disability, or loss in the use of her right lower extremity. The claimant wears a prescribed brace on the right leg. It is necessary to keep the brace in a locked position when walking, and it is necessary to disengage a latch on the brace in order to bend her knee. Because the medical doctors have said they do not think the claimant will be able to work because of the leg injury, the Commission found the claimant to be permanently and totally disabled and this court has affirmed.
As I interpret the effect of the majority opinion, it means that from now on in Arkansas if an employee sustains a com-pensable injury to a leg, foot, arm or hand, or to any other member of the body, and can produce medical evidence to the effect that the injured employee is accident prone, and because of such injury should not attempt to work in the future, if an award of permanent total disability should be made by the Commission, it should be affirmed by the circuit court and by this court on appeal.
It is my opinion that the Legislature made clear and specific allowances for just such a situation in the pvovisions of Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960). This section has been referred to and quoted so often in our decisions it should not be necessary to repeat it here, but I shall do so one more time. This section provides as follows:
“An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-five per cen-tum [65%] of his average weekly wage for that period of time set out in the following schedule:
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(3) Leg amputated at the knee, or between the knee and the hip, one hundred seventy-five [175] weeks;
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(21) ... Compensation for permanent total loss of use of a member shall be the same as for amputation of the member;
(22) . . . Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member.”
Now, subsection (d) under § 81-1313 pertains to “Other cases” (nót scheduled) and provides as follows:
“A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.”
The Commission as well as the majority of this court in reaching the results reached in this case, apparently reverted back to subsection (a) of § 81-1313 pertaining to total disability, which reads as follows:
“In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-five per centum [65%] of his average weekly wages. Loss of both hands, or both arms, or both legs, or both eyes, or of any two [2] thereof shall, in the absence of clear and convincing proof to the contrary, constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the fads." (Emphasis added).
As I interpret the above statutory provisions, subsection (a), including the last sentence above emphasized, relates to subsection (d), supra,-and pertains to permanent partial disability not scheduled in subsection (c).
I certainly feel that if an injured employee loses a leg as a result of an industrial injury, and because of such injury is no longer able to earn the same wages in the same or other employment, he should be compensated for his loss in wage earning capacity as long as it lasts, in addition to the permanent disability he is entitled to under a scheduled injury. My view in this connection was rejected by the majority in Anchor Constr. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573. In Anchor the injured employee sustained a scheduled injury resulting in some permanent disability to his left leg below the knee. The medical evidence sustained a 15% disability to the leg. The claimant contended that he was entitled to a permanent partial disability in the amount of 50% to the body as a whole, and the respondent contended that he vv'as only entitled to the 15% functional disability found by the doctor. The Commission awarded 25% permanent partial disability to the leg. I dissented in that case but in the majority opinion this court said:
“As we view the record the Commission properly found that there was no permanent disability to any part of the body except the left lower extremity below the hip. Of course this reduces the permanent injuries to a scheduled injury under Ark. Stat. Ann. § 81-1313 (c). In Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W. 2d 862 (1971), we held that an injury scheduled under Ark. Stat. Ann. § 81-1313 (c) could not be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability. See McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966).
We now come to the issue of whether the Commission in fixing partial loss or partial loss of use of a limb under schedule (c) can consider a wage earning loss in addition to the functional loss. We hold that they cannot.”
I agree that total disability may result, and many times does result, from a scheduled injury, and that the injured employee should be paid compensation benefits so long as he is totally disabled because of the scheduled injury. But when it comes time to determine and award benefits for permanent injury, I part with the majority in my interpretation of the statute. I do so in spite of the obiter dictum in McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502, which the majority, in the case at bar, has apparently adopted as the law in Arkansas. The obiter dictum referred to appears as a part of the statement in McNeely as follows:
“The principal question is whether an employee who suffers a scheduled injury which proves to be totally and permanently disabling is entitled only to the restricted compensation specified for the scheduled injury or to the greater benefits provided for total and permanent disability. The commission took the more liberal view, but its award was set aside by the circuit court. We agree with the commission.”
In the McNeely case we only know that the claim was for additional benefits after the claimant had been paid the full statutory period of 125 weeks for the loss of his leg. Certainly the full payment of scheduled permanent disability under subsection (c) should not prevent reinstatement of benefits for total disability within the statutory period for reopening or for change in condition. I find no fault with the results on the facts in McNeely but the majority in the case at bar have reached the conclusion, which we appeared to invite but refused to express in McNeely, for in that case this court said:
“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.”
The case of Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W. 2d 82, is no precedent for the conclusion reached by the majority in the case at bar for the reason that in Meadowlake the medical evaluation was a 40% impairment of the left leg as a whole, but the injury amounted to more than a mere loss of the leg or partial loss of the Use of the leg. As set out in Meadowlake, the injured employee fell and “seriously injured her hip.” As a result of the accident, the rounded upper end of the claimant’s left femur was surgically removed and replaced with a prosthetic knob. Even though the injury in Meadowlake could well have been considered as related to the body as a whole rather than a scheduled injury, the opinion indicates that the Commission made an award for total disability, as in McNeely, for the duration or permanency of the disability in Meadowlake is not mentioned.
I am growing weary of writing useless dissents in workmen’s compensation cases; consequently, until the Legislature or this court again changes the law, I shall accept the majority opinion in this case as simply holding that when the Workmen’s Compensation Commission awards permanent and total disability as a result of scheduled permanent injury under § 81-1313 (c), I shall feel obligated to affirm the Commission if there is any substantial evidence to support the award.
We said in Anchor Constr. Co., supra, that an injury scheduled under subsection (c) could not be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability. We also said in Anchor that the Commission cannot consider wage earning loss in addition to functional loss in fixing partial loss or partial loss of use under subsection (c). But apparently, under the majority opinion in the case at bar, the Commission may relate a scheduled injury to the body as a whole, and may also consider wage earning loss in addition to functional loss if the Commission is considering permanent total disability rather than temporary total or permanent partial disability.
I would reverse and direct that this case be remanded to the Commission for a determination and award under subsection (c), and for determination and award of any additional total disability from which the claimant may be suffering at the present time, and for any medical services to which the claimant may be entitled.