dissenting. The majority has cited no -case, and I know of none, which interprets our Workers’ Compensation Act or that of any other jurisdiction to permit payment of total disability benefits beyond the healing period and “during the continuance of such total disability.”
The appellee’s testimony shows clearly that there are many jobs he could do for Sunbeam or a similar company. The entire basis for parlaying this injury of 15% to the body as a whole into this new kind of “limited” total disability is the fact that Sunbeam will not rehire the appellee. The appellee’s brief says:
It should be noted that the appellant could avoid paying the appellee another nickel in disability benefits by simply allowing him to return to employment.
The appellee goes on, however, to recite factors which might lead to a conclusion the appellee is totally disabled in the sense that has become traditional in this jurisdiction since the decision of Glass v. Edens, 233 Ark. 786, 346. S.W. 685 (1961). His brief continues:
However, since they have refused to do so without any explanation, they have placed the appellee in a rural labor market with a very limited education, 47 years old with three back injuries which have resulted in a surgery and a permanent impairment rating of 15% to the body as a whole. The consequences of this conduct on the part of the appellant are apparent, the appellee cannot secure employment.
In a way, I believe the decision of the majority makes good sense. If we sent the matter back to the commission and said they would have to assess the level of the appellee’s disability “finally” they might simply say the appellee is permanently and totally disabled and be done with it. Maybe the majority is doing the appellant a favor by affirming the commission, as at least there is a chance that if the appellant can catch the appellee earning money later it can return to the commission and get some sort of new determination.
While I appreciate the seemingly practical nature of this decision, I question whether there is authority for it, and I fear it will create a very impractical precedent.
The majority predicates this new class of disability, which I will refer to as “limited” total disability on Ark. Stat. Ann. § 81-1313 (Repl. 1976), which reads as follows:
Compensation for disability. — The money allowance payable to an injured employee for disability shall be as follows:
(a) Total Disability. In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-six and two thirds percent (66 2/3%) of his average weekly wage.
The subsections which follow prescribe amounts to be paid for “temporary partial disability” and “scheduled injuries.” No separate subsection is devoted to “temporary total disability,” thus it appears to me that the reason for inclusion in subsection (a) of the words “during the continuance of such total disability” is the intent of the drafter to have it prescribe the benefits to be paid for total disability whether it is permanent or the sort that may exist during the “healing period” defined in Ark. Stat. Ann. § 81-1302(f) (Repl. 1976). Our supreme court has clearly recognized and applied the concept of “temporary total disability,” meaning the kind that exists during a healing period or until permanent disability, if any, can be assessed. International Paper Co. v. McGoogan, 255 Ark. 1025, 504 S.W. 2d 739 (1974).
Rather than Ark. Stat. Ann. § 81-1313, supra, the purpose of which is to declare the specific amounts to be paid, I believe the section intended to set forth the periods of compensation payments in Ark. Stat. Ann. § 81-1310 (Supp. 1979), which provides:
Compensation — Periods — Maximum and minimum amounts. — (a) Disability. Compensation to the injured employee shall not be allowed for the first seven (7) days disability resulting from injury, excluding the day of injury. If a disability extends beyond that period, compensation shall commence with the ninth (9th) day of disability. If the disability extends for a period of two (2) weeks compensation shall be allowed beginning the first day of disability, excluding the day of injury.
Compensation payable to an injured employee for disability shall not exceed sixty-six and two-thirds percent (66 2/3%) of the employee’s average weekly wage, with a fifteen dollar ($15.00) per week minimum, subject to the following máximums:
(A) For a disability occurring after March 1, 1978 through February 28, 1979, the maximum weekly benefits payable shall be eighty-seven dollars and fifty cents ($87.50). The benefits shall be paid for a period of not to exceed 450 weeks of disability and shall not exceed thirty-nine thousand three hundred seventy-five dollars ($39,375.00) and shall be paid in addition to the benefits and allowances under Section 11 (Section 81-1311) hereof. The maximum limitations of time and money expressed in the foregoing sentence shall apply in all cases pertaining to the payment of money compensation except in cases of permanent total disability.
If, as the majority suggests, § 81-1313 determines the duration of compensation for total disability after the healing period, then why did the General Assembly limit in § 81-1310 payment for other than permanent total disability to 450 weeks?
Both § 81-1310 and decisions typified by tho. International Paper Co. case, supra, contemplate that at some point, and I suggest if is upon termination of the healing period or rehabilitation, if applicable [see, § 81-1310(f)], a determination of permanent disability, or lack of it, should be made. The majority apparently would permit the matter to drag on almost interminably. While we have recognized that refusal of a former employer to rehire an employee who has at least a partial permanent disability is strong evidence of permanent disability, M. M. Cohn v. Haile, 267 Ark. 53, 589 S.W. 2d 600 (Ark. App. 1979), neither we nor our supreme court have taken the position that a decision on the question of permanent disability should be delayed to see if the employee will get work.
I see some danger in this decision. First, it may stimulate the commission to shirk what I perceive to be its obligation to make final decisions. That, in turn, may stimulate employers to try to ride herd on former employee who have been determined to be totally disabled in this “limited” way but who may get some sort of job and then be hauled back before the commission for a reevaluation. That kind of interminable contest may not be all bad, but the possible prospect of wasted resources of the parties and the commission should be considered. I believe had such a scheme been intended by the General Assembly, it would have been spelled out.
Even more troublesome to me, however, is the discouraging effect this status of “limited” total disability is bound to have upon one who occupies it. If he tries to work, he loses his benefits. A claimant who had been determined to be permanently and totally disabled should be permitted to earn money without threat of losing his workers’ compensation benefits. As our supreme court said, quoting Larson, Workmen’s Compensation Law, § 57.10, in Glass v. Edens, supra:
The two ingredients usually occur together; but each may be found without the other; a claimant may be, in a medical sense, utterly shattered and ruined, but may by sheer determination and ingenuity contrive to make a living for himself; conversely, a claimant may be able to work, in both his and the doctor’s opinion, but awareness of his injury may lead employers to refuse him employment. These two illustrations will expose at once the error that results from preoccupation with either the medical or the wage-loss aspect of disability. An absolute insistence on medical disability, in the abstract would produce a denial of compensation in the latter case, although the wage-loss is as real and as directly traceable to the injury as in any other instance. At the other extreme, an insistence on wage-loss as the test would deprive the claimant in the former illustration of an award, thus not only penalizing his laudable efforts to make the best of his misfortune, but also fostering the absurdity of pronouncing a man non-disabled in spite of the unanimous contrary evidence of medical experts and of common observation. The proper balancing of the medical and the wage loss factors is, then, the essence of the “disability” problem in workmen’s compensation.
In my opinion it is the duty of the commission to make the “pronouncement,” attempting to avoid either “absurdity.” The task is difficult, but I believe the Act should be interpreted to impose this duty to make a final determination when the healing period has ended and there is no prospect of rehabilitation in the sense of § 81-1310(f).
For these reasons, I respectully dissent.