dissenting. I would reverse this decision and remand to the Workers’ 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’s 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’s findings of fact. Therefore, I must dissent.
Because 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’t. 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).
Moreover, 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’s error as a credibility issue subject to the substantial evidence standard of review.
Appellant 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’s bizarre decision that appellant failed to make a prima facie case under the odd-lot doctrine.
Act 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. § ll-9-522(e) (Repl. 1996)); however, the doctrine was alive and fully applicable to appellant’s disability claim stemming from her 1991 compensable injury and its recurrences.1 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.
As stated in Larson’s Workers’ Compensation Law treatise:
Under 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.
Id. at § 83.01. Larson traced the origin of the term “odd-lot” to the King’s 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:
[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 — 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’s labour in the position of an ’odd lot’ in the labour market, the employer must shew that a customer can be found who will take it . . .
Id. at 1 K.B. 1020-21.
Judge 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:
He [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 “odd lot” man, the “nondescript in the labor market.” 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.
Id., at 525, 130 N.E. at 635-36.
In M.M. Cohn, supra, Judge David Newbern wrote that the “odd 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.” 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.
In Walker Logging, supra, we affirmed the Commission’s 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’s 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.
Last 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’s 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’s analysis and reasoned as follows:
When Buford’s 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’s 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.
Id. at 169-70, 5 S.W.3d 483-84.
Earlier 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’t. 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’s 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:
Even 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’s time, but which is not full time and are [sic] not widely available with other employers.
Id. 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:
[W]e think it significant that the . . . ALJ’s opinion states that appellant has performed some employment which is not constant in its demands on the claimant’s 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.
Considering appellant’s 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’s 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.
Id., 15 S.W.3d 708.
We also reversed the Commission in a previous opinion after the Commission refused to analyze this case under the odd-lot doctrine.2 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’s 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.
The Commission announced its decision regarding appellant’s claim for permanent and total disability benefits as follows:
We 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’s 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.
With regard to the claimant’s 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’ 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’ 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’s 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’s testimony that she has presented a prima facie case that she falls within the odd lot category.
(Emphasis added.)
The Commission’s opinion in the instant appeal does not suggest how its evaluation of the opinions by Dr. Nichols and Dr. Heim nullified the appellant’s 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’s 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 “mild” or “moderate.” 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’s impairment, work experience, age, education, and other factors affecting disability constitute a prima facie case for application of the odd-lot doctrine.
Therma Tru could have rebutted appellant’s 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’s 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’s 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.
Odd-lot category determinations are no different from other situations involving prima facie evidence. Black’s Law Dictionary defines prima facie evidence as “evidence 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’s claim or defense, and which if not rebutted or contradicted, will remain sufficient.” Black’s 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’s case. In addressing the chancellor’s decision, Justice David Newbern wrote:
The 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. . .
While we understand that the Chancellor’s 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’s duty in the circumstance presented here is to review the defense motion for dismissal at the conclusion of the plaintiffs’ case by deciding whether, if it were a jury trial, the evidence would be sufficient to present to the jury. . . .
In 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:
“Ever since the decision in Werbe v. Holt [citation omitted] , we have consistently held that a demurrer to the plaintiff’s 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.]
Neely 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).
333 Ark. at 403-04, 970 S.W.2d at 208-09 (emphasis in original).
Thus, 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 “we are not persuaded by the claimant’s testimony that she has presented a prima facie case that she falls within the odd lot category.”
I refuse to stand Arkansas law on its head and compound the Commission’s 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’s 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’s 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.
What is equally disquieting is that the majority has analyzed the Commission’s decision on whether appellant made a prima facie case under the substantial evidence standard of review, the standard we use to review the Commission’s 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.
The Commission was wrong when it assessed appellant’s 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’s claim for permanent total disability benefits despite the employer’s failure or refusal to prove that a single job existed for someone with appellant’s 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’s unfair result and misguided reasoning.
I am authorized to state that ROBBINS, C.J., and NEAL, J., join this opinion.
The odd-lot doctrine is accepted in “virtually every jurisdiction” according to Larson’s Workers’ Compensation Law treatise. See Larson’s at § 83.01. Arkansas workers are now among the rare exceptions to whom the doctrine no longer applies, thanks to Act 796 of 1993
Our previous opinion also reversed the Commission because it improperly determined appellant’s anatomical impairment based on applying the “major cause” analysis of Act 796, specifically Ark. Code Ann. § 11 — 9— 102(F)(1987), and omitted consideration of appellant’s obstructive pulmonary disease, which had been fully corroborated by the medical evidence and uncontradicted by any other proof. To that extent, the Commission’s 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.