dissenting. The prevailing opinion affirms an order of the Arkansas Workers’ Compensation Commission awarding appellee benefits for temporary total disability. I dissent for two reasons.
I.
First, the Commission wholly failed to make any finding of fact for us to review regarding whether appellant is, in fact, disabled. Despite the'supreme court’s recent attempt to clarify the issue, three members of this court have again demonstrated a fundamental misunderstanding of the Commission’s duty to find facts. See Cagle Fabricating, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992). In fact, the prevailing judges have fallen into precisely the same error that the supreme court had to correct in Cagle.
The prevailing judges point to one thing in support of their conclusion that the Commission made sufficient findings of fact regarding the issue of disability: the ALJ found facts and the Commission “affirmed” the ALJ. The only other statement by the Commission that might be regarded as applying to this issue is its “finding” that appellee had “sustained her burden of proof.” Of course, neither of these statements by the Commission constitutes a finding of fact.
The respective functions of the Commission and this court can be summarized briefly. “The Commission [is] required to find as facts the basic component elements on which its conclusion [is] based.” Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 369, 830 S.W.2d 857, 859 (1992). On appeal, this court does not review decisions of the Commission de novo on the record or make findings that the Commission should have made but did not. Rather, our function is to review the sufficiency of the evidence to support the findings that the Commission does make. Sonic Drive-In v. Wade, 36 Ark. App. 4, 816 S.W.2d 889 (1991). A finding of fact is “a simple, straightforward statement of what the Board finds has happened.” Wright v. American Transportation, 18 Ark. App. 18, 21, 709 S.W.2d 107, 109 (1986). Neither an expression of belief nor “a statement that a witness, or witnesses, testified thus and so” is sufficient. Id. Likewise insufficient is language by the Commission that is merely “conclusory and does not detail or analyze the facts upon which it is based.” Cagle, 309 Ark. at 369, 830 S.W.2d at 859. Hardin v. Southern Compress Co., 34 Ark. App. 208, 810 S.W.2d 501 (1991). When the Commission fails to make specific findings on an issue, the case must be reversed and remanded for the Commission to make such findings. Sonic Drive-In v. Wade, supra.
I have no quarrel with the Commission’s finding that appellee had suffered an “injury” arising out of and in the course of her employment with appellant, or with this court’s conclusion that that finding is supported by substantial evidence. The Commission’s opinion summarizes that part of appellee’s testimony describing the occurrence of a work-related accident and the painful “pop” in her back, finds that testimony credible, and specifically finds that appellee sustained a work-related injury. However, the finding of a work-related injury, standing alone, simply does not justify an award of temporary total disability benefits. In order to be “compensable”, an injury must not only be causally connected to one’s work, Ark. Code Ann. § 11-9-102(4) (1987), but must also cause disability for a minimum length of time, Ark. Code Ann. § 11-9-501(a) (1987). Disability means incapacity because of injury to earn, in the same or any other employment, the wages that the employee was receiving at the time of the injury. Ark. Code Ann. § 11-9-102(5) (1987). Temporary disability is determined by the extent to which a work-related injury has affected an employee’s ability to earn a livelihood. Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).T emporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Id.
Contrary to the prevailing opinion, the fact that the Commission “affirmed” the ALJ in no way satisfies the need for findings of fact by the Commission on the issue of disability. It has long been the law that we review the Commission’s findings, not those of the ALJ. It is the Commission’s duty to make findings according to the preponderance of the evidence and not whether there is substantial evidence to support the findings of the ALJ. Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528 (1963); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982); Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981). Therefore, the findings of the ALJ are of no significance to the appellate court and are given no weight whatever. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979); Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S.W.2d 43 (1970); Oller v. Champion Parts Rebuilders, supra; Dedmon v. Dillard Department Stores, Inc., 3 Ark. App. 108, 623 S.W.2d 207 (1981). It is true that the Commission may expressly “adopt” the ALJ’s findings as the Commission’s own, assuming the ALJ’s findings are themselves sufficient. Hardin v. Southern Compress Co., 34 Ark. App. 208, 810 S.W.2d 501 (1991); ITT/Higbie Manufacturing v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991). However, the Commission did not adopt any part of the ALJ’s opinion in this case. Therefore, this court’s reference to (indeed, quotation of) portions of the ALJ’s opinion in this context is inappropriate, as the ALJ’s opinion is inconsequential.
It would also be wrong to characterize as a finding the Commission’s statement that appellee had “sustained her burden of proof.” This court recently held that the Commission’s statement that a claimant had “met his burden of proof under [Ark. Code Ann. § 11-9-523(a)]” was “definitely a finding of fact.” Cagle Fabricating & Steel, Inc. v. Patterson, 36 Ark. App. 49, 57, 819 S.W.2d 14, 19 (1991). On review, however, the supreme court unanimously reversed, holding that the Commission’s language was insufficient because “it is conclusory and does not detail or analyze the facts upon which it is based.” Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. at 369, 830 S.W.2d at 859 (1992). The Commission’s statement in this case is no different, and to treat it as a finding flies in the face of the supreme court’s decision in Cagle.
The prevailing opinion also provides a summary of those parts of appellant’s testimony and the medical evidence going to appellant’s present condition. However, the Commission did not detail or analyze this proof. In fact, the Commission completely failed even to mention this or any other evidence pertinent to whether appellee is, or ever was, disabled as a result of her injury, much less to make any finding of fact regarding that issue. The Commission likewise completely failed to make any findings regarding whether such disability, if any, was total or partial in nature or whether appellee remained within her healing period. Indeed, the Commission’s opinion does not even contain the words “disabled,” “disability,” “temporary,” “permanent,” “partial,” “total,” or “healing period.”
In Wright v. American Transportation, supra, the Commission denied the appellant/employee’s claim without stating any basis for its finding that she had failed to prove entitlement to additional medical or temporary total disability benefits. We reversed and remanded the case for the Commission to make sufficient specific findings of fact to support its decision. In holding that we were unable to make any meaningful review of the Commission’s decision as it then stood, we pointed out that:
The Commission made no findings as to whether appellant sustained a compensable injury, or when the healing period ended if there was a compensable injury, or whether she was disabled at the time of the hearing, and if so, what was the cause of the disability.
Wright, 18 Ark. App. at 22, 709 S.W.2d 107 (1986). In my opinion, the present case is materially indistinguishable from Wright and should be remanded for the Commission to make findings of fact on the essential issues of the existence, extent, and cause of appellee’s disability, if any.
II.
The second flaw in the prevailing opinion can be found in its discussion of the meaning of impairment and the statutory requirement of objective physical findings. Within its challenge to the sufficiency of the evidence, appellant makes a compelling argument that the record is devoid of any objective physical findings to support appellee’s subjective complaints of continuing back pain or other physical problems, and that the award of disability benefits, therefore, cannot stand.1 The prevailing judges point to no such objective findings, but dispense with appellant’s argument by holding that the requirement of objective findings is simply inapplicable to the issues in this case.
As the prevailing opinion notes, Ark. Code Ann. § 11-9-704(c)(1) (1987) provides that “/a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” (Emphasis added.) See also Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992); Reeder v. Rheem Manufacturing Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992); Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 313 (1992). Although the prevailing judges concede that one of the issues for the Commission to decide was whether appellee has been temporarily totally disabled since her injury, they nevertheless hold that the case does not involve the determination by the Commission of even the existence of physical impairment. I agree that it is not necessary in cases of temporary disability to assign a precise anatomical impairment rating to the claimant. However, I simply cannot agree that it is possible in the ordinary case for one to be “disabled” in the workers’ compensation sense, either temporarily or permanently, without suffering, even temporarily, at least some degree of “impairment.” In other words, the “existence” of a physical impairment is a necessary component of disability.2
Professor Larson explains the two components of disability as follows:
[T]he distinctive feature of the compensation system, by contrast with tort liability, is that its awards, apart from medical benefits, ... are made not for physical injury as such, but for “disability” produced by such injury.
[T]he disability concept is a blend of two ingredients. . .: The first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions [i.e., physical impairment]; the second ingredient is de facto inability to earn wages ....
1C A. Larson, The Law of Workmen’s Compensation § 57.11 (1993) (emphasis added) (footnotes omitted). Our own case law also points out the need that a physical impairment exist before one can be found entitled to temporary total disability benefits. See, e.g., Arkansas State Highway Department v. Breshears, supra; Sanyo Manufacturing Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984) (once the Commission has before it firm medical evidence of physical impairment and functional limitations, it can apply its superior knowledge and experience in arriving at a reasonably accurate conclusion as to the extent of disability).3
The prevailing judges argue that “incapacity to earn wages [such that one would be entitled to disability benefits] can exist without physical or mental impairment.” The only authority cited for this proposition is a passage from Professor Larson’s treatise in which he points to one possible exception to the rule that one must suffer from a physical impairment before being disabled: where a claimant is able to work, in both his and his doctor’s opinion, but awareness of his injury leads employers to refuse him employment. Assuming, arguendo, that this exception to the general rule would apply in this state, reference to the exception in this case is meaningless. This case simply presents no circumstances even approaching those on which the stated exception is based, and the prevailing opinion offers no other example of how a person can be disabled and not be impaired. The mere existence of a theoretical possibility that bears absolutely no relationship to this appellee is no explanation for avoiding the general rule in this case.
Separate and apart from the above, the prevailing judges also appear to indicate that, as used in § 1 l-9-704(c), the word “impairment” means only “permanent impairment.” Therefore, they conclude that the statutory requirement that there be objective findings to support the existence of a physical impairment is inapplicable in this case and in temporary disability cases generally.4 I cannot agree.
The General Assembly deliberately placed the requirement of objective findings in Ark. Stat. Ann. § 81-1323 (now Ark. Code Ann. § 11-9-704). This statute, at the time entitled “Procedure before the commission in respect of claims,” is very general and obviously applies to all proceedings on all claims, temporary as well as permanent. Had “impairment” been intended to be limited only to “permanent impairment,” it would have been a very simple matter for the legislature to use the word “permanent.” The legislature has demonstrated both its ability and its willingness to do so when it chooses. See Ark. Code Ann. §§ 11-9-522; 11-9-525 (1987). However, any such adjective is conspicuously missing from § 11-9-704 and should not be inserted by this court without good reason.
Furthermore, I note that in Legacy Lodge Nursing Home v. McKellar, 26 Ark. App. 260, 763 S.W.2d 101 (1989), we were faced with the same issue as in this case. There, the appellant/ employer argued that the Commission’s award of temporary total disability was not supported by substantial evidence because there were no objective and measurable findings to support any determination of physical impairment. However, in that case, we did not hold the requirement of objective and measurable findings inapplicable. While we affirmed the Commission’s award of temporary total disability, we did so only after concluding that the Commission’s decision was supported by substantial evidence, presumably including evidence of objective and measurable findings supporting the existence of a physical impairment. (Among other things, the record there contained evidence of a CT scan and myelogram that revealed a herniated disc for which the claimant’s physicians recommended surgery.)
In sum, I dissent because the Commission failed to make any findings of fact for us to review relative to the issue of disability. Under these circumstances, the case should be remanded for the Commission to make specific findings. However, if appellant’s arguments are to be addressed despite the lack of such findings as to disability, then I strenuously object to the holding that the existence or non-existence of some level of physical impairment is irrelevant to the issue of whether appellee is temporarily totally disabled. In my opinion, every finding of disability, by definition, at least implicitly carries with it a determination that some degree of impairment exists, and the statute requires that objective and measurable findings support that determination of impairment.
Contrary to the position taken in the concurring opinion, five members of this court agree that this issue was raised below and is argued on appeal. Indeed, the concurrence quotes the Commission’s response to the argument. The fact that the Commission dispensed with the argument by erroneously placing on appellant appellee’s burden of proving her entitlement to benefits is of no consequence as to whether the issue was preserved for appeal.
It should be noted that this case does not involve and this dissent does not consider any issue of an increase or prolongation of a disability by any emotional disorder.
The prevailing judges apparently misunderstand why Breshears and Leisure are cited at this juncture. I do not disagree with the statement in the prevailing opinion that these two cases were decided before enactment of that part of § 11-9-704(c)(1) that requires that a determination of physical impairment be supported by objective and measurable findings. I cite Breshears and Leisure only to demonstrate that the existence of an impairment is, and always has been, a necessary component of disability. The statutory provision simply specifies how such an impairment must be proved.
Although the prevailing judges state that they are not implying that “such a case could never exist,” they clearly indicate that the statutory requirement is inapplicable in all but the most exceptional of temporary disability cases. The opinion fails to provide any clue as to the type of temporary disability case to which the statute might apply.