dissenting. Although I agree with the majority’s decision that the Second Injury Fund does not have any liability in the case at bar, I respectfully dissent from the majority’s decision that appellant Delton Pace failed to present prima facie evidence that he is permanently and totally disabled under the odd-lot doctrine. The majority opinion, along with the Commission, has failed to consider all of the credible evidence and has failed to explain why the opinion of Rice’s two treating physicians should be disregarded.
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. M.M. Cohn v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979). Furthermore, an employee who is injured to the extent that she can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). Under the odd-lot doctrine, where the claim is for permanent disability based on incapacity to earn, the Commission is required to consider all competent evidence relating to the disability, including the claimant’s age, education, medical evidence, work experience, and other matters reasonably expected to affect his earning power. Buford v. Standard Gravel Co., 68 Ark. App. 162, 5 S.W.3d 478 (1999).
As the majority noted, Rice worked at Georgia-Pacific for more than twenty-five years. In 1975, he injured his back while lifting rolls of paper. In 1980, he sustained another work-related back injury. In 1981, he sustained a crush-type injury to his chest. In 1988, he suffered low-back pain while lifting a washing machine. In 1990, he was diagnosed with degenerative disc disease. In 1991, he hurt his back while lifting firewood. None of these injuries affected his work capabilities. He testified that prior to his May 1992 injury he was in good, healthy shape, in that he was able to lift, stand, and sit with no restrictions.
However, in May 1992, Rice was unloading a piece of plywood; he picked it up, turned sideways and felt a pinch. An MRI showed that he had a herniated disc. He underwent two surgeries and was assigned an impairment rating of fifteen percent to the body as a whole, had permanent lifting restrictions applied, and was given a rating of five percent for the preexisting degenerative back disease. Rice returned to work, but continued to complain of constant pain. At first, Dr. Cathey released Rice to work, stating that he could perform a medium workload. This was later changed to a light workload.
In finding that Rice did not fall within the odd-lot doctrine, the law judge stated that appellant was able to hunt and fish, perform light housework, and lift thirty to forty pounds. The law judge also noted that Rice has not done any work or made any efforts to be trained to do any other type of work. The Commission affirmed and adopted the law judge’s opinion.
In Buford v. Standard Gravel Co., supra, the court of appeals reversed a finding by the Commission that the appellant did not fall within the odd-lot doctrine guidelines. Buford had had his larynx crushed and had undergone three back surgeries. He had been restricted from repetitive bending, stooping, and lifting heavy objects. After each injury and each surgery he had returned to work. Then his doctor found that he was permanently and totally disabled. The Commission, in making its decision, emphasized his lack of motivation, his use of beer, his enjoyment of walking to his friend’s home, his ability to hunt deer, fish and camp, and his ability to shop with his wife, garden, and mow the yard. Therefore, it denied that he fell under the odd-lot doctrine. This court reversed.
In Walker Logging v. Paschal, 36 Ark. App. 247, 821 S.W.2d 786 (1992), the claimant, a man in his late forties, also dropped out of school and never received his GED. He had worked jobs involving heavy manual labor and could neither read nor write. He was injured while working as a timber cutter when a tree fell on him, injuring his right knee. Although his treating physicians never stated that he was permanently and totally disabled, the Commission found that substantial evidence existed to support the finding that the claimant was totally and permanently disabled. We affirmed.
In the instant case, the law judge, Commission, and majority-in its opinion have failed to consider all of the evidence presented. Pace testified that he does not have a high-school education; he is forty-seven years old; and, as the law judge correctly noted, he has not received any further training. He performed manual labor for Georgia-Pacific all of his adult working life. He has had several back injuries, undergone two surgeries, continues to complain of constant back pain, and stated that he can sit or stand only for very limited periods of time. He did state that he had hunted deer and gone fishing a few times since his injuries. He testified that he tried returning to work a couple of times. Even though the Commission found that he lacks motivation, he stated that if Georgia-Pacific would offer him a job, he would accept it.
In addition, the law judge, the Commission, and the majority have failed to adequately explain why: the testimony of Rice’s two physicians, who found that he was permanently and totally disabled, should be disregarded. In November 1994, in a chart note, Dr. Cathey stated, “Considering the fact that the patient had two lumbar disc surgeries and still has significant amount of chronic lower back and right leg pain is difficult for me to see how he will [be] able to return to his previous occupation.” On March 11, 1997, Dr. Cathey wrote to Rice summarizing his recent evaluation and stated, “Mr. Pace, in my opinion, your chrome degenerative lumbar disc disease, osteoarthritis, and spondylosis has progressed significantly since your last evaluation in April 1996. Although I realize you have been denied social security benefits in the past, based on today’s exam, I believe you to be totally and permanently disabled with regard to future employment.” Contrary to the suggestion of the majority, there is nothing in this statement by Dr. Cathey that should cause the inference that Dr. Cathey made his total-and-permanent-disability determination solely for the purpose of supporting Rice’s application for Social Security disability benefits. Dr. Cathey reiterated his belief that Rice was permanently and totally disabled on April 16, 1998, when he stated in a clinic note, “Lastly, it is my belief that Mr. Rice remains permanently disabled from the effects of his multiple lumbar disc surgeries, the residual nerve damage in his right leg, and his chronic degenerative lumbar disc disease.” (Emphasis added.)
Dr. D.L. Toon, Rice’s general physician, also stated in a doctor’s note, dated May 24, 1995, that Rice was permanently and totally disabled. Then, in a doctor’s note dated June 29, 1995, Dr. Toon again stated that Rice had been a patient of his for many years and that he had determined Rice to be permanently and totally disabled.
Based upon his work experience, his injuries, and the credible opinion of the medical doctors who found him to be permanently and totally disabled, I believe that the Commission erred in finding that Rice had not met his burden in proving that he is permanently and totally disabled, and I would reverse the part of the Commission’s opinion finding otherwise.
I am authorized to state that Chief Judge ROBBINS and Judge GRIFFEN join in this dissent.