dissenting. I must disagree with the majority opinion. The administrative law judge fully tried Steven Grimes’ claim, and on July 11, 1990, the judge found Grimes’ anatomical impairment was seven percent and his loss in wage earning capacity to be ten percent. That decision was appealed to the Commission. On February 5, 1991, the Commission affirmed the judge’s anatomical finding, but vacated the loss in earning capacity determination and instructed the judge to take additional evidence, particularly as to whether Grimes had been laid off by North American for economic reasons. In my view, the Commission’s ruling to remand was an abuse of discretion.
The Commission justified its remand based on the premise that Grimes had failed to meet his burden of showing that he suffered a loss of earning capacity. Such is not the case.
Grimes’ proof showed he suffered a moderately large disc herniation at the L5 S1 level, and experienced intermittent pain in his lower back and left extremity.1 An independent examination by Dr. Steven Heim caused him to opine that Grimes suffered a thirteen percent impairment to the body as a whole. Physicians cautioned that Grimes should avoid bending, stooping and excessive lifting. Based on these and other findings and the fact that Grimes’ subsequent or new employment paid over two dollars less than he had received at North American, the judge appropriately awarded a ten percent loss in earning capacity.
Although the administrative law judge’s findings appear to amply support the ratings and award given Grimes, the Commission on appeal raised the issue as to whether Grimes had been laid off for economic reasons or as a result of his compensable injury. In its written opinion, the Commission explained that North American’s reason for laying off Grimes was extremely relevant when determining whether he met his burden of proof as to the wage-loss issue. In my view, the Commission apparently failed to review the evidence presented to the administrative law judge on this very issue when the judge made his initial decision.
In this respect, Grimes testified that one of his physicians had told him to ask North American’s personnel manager if Grimes could stop climbing to the top of the sand silo. He was allowed to stop this job responsibility, and this seemed to help his back. However, two weeks later, Grimes was laid off work, as were others at the company. He said that employees with less seniority than he, but who had no injuries, were kept on the job. Grimes related that he was never recalled to work even though he-knew North American hired other people through a temporary service. He testified that, after North American terminated him, he applied for other employment, but on each occasion, he was asked if he had back problems, and he revealed that he did. None of these potential employers expressed an interest in hiring Grimes. A small business employer did eventually hire Grimes (at lower wages), but he did so without asking Grimes whether he had any prior back injury.
Obviously, the foregoing evidence was circumstantial but sufficient to support the administrative law judge’s ten percent wage-loss ruling. Of course, the judge (or the Commission) could have just as easily disbelieved Grimes’ assertion that he was terminated because of his injury, but Grimes’ credibility has never been the issue. Significantly, North American made no attempt to rebut Grimes’ proof on the earning capacity issue, but the Commission absolved North American of its failure in this respect by finding the layoff/wage-loss issue “had not been contemplated” by the parties. The Commission, however, offered no explanation for such a supposition, and the record clearly fails to support it.
As previously discussed, Grimes certainly addressed the lay off/loss of earning capacity issue at the initial hearing. And North American was well aware (or should have been) that this wage-loss issue would be considered by the law judge since it is a factor set out and required to be addressed under Ark. Code Ann. § ll-9-522(b) (Supp. 1993). That specific provision provides as follows:
“[S]o long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.”
Here, Grimes met his burden under § ll-9-522(b), and while it had the opportunity to rebut Grimes’ proof at the initial hearing, North American simply failed to do so. The Commission gave North American a second opportunity to rebut Grimes’ evidence even though the court of appeals has forbidden such a “second bite at the apple” by its holding in Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 830 S.W.2d 475 (1991). No one suggests the Landers decision should be overturned.
For the foregoing reasons, I would reverse the Commission’s decision with directions to reinstate the loss in earning capacity benefit awarded Grimes by the administrative law judge.
Dudley, J., joins this opinion.Apparently this herniated disc problem changed to a bulging disc which was further described as disc degeneration. Grimes was also diagnosed as having structural damage to his disc.