The opinion
JOHN MAUZY PITTMAN, Judge, dissenting.
I respectfully dissent from the majority’s decision to reverse on direct appeal. It is true that the Commission held that appellee failed to prove that appellant so unreasonably failed to cooperate as to completely waive or forfeit 11ghis right to any wage-loss benefits under Ark.Code Ann. § 11-9-505 (Repl.2002). That does not, however, mean that appellant’s lack of cooperation did not hamper the Commission’s ability to determine the extent of his disability. The Commission noted the extensive evidence of appellant’s inconsistent efforts during a functional-capacity evaluation, his inappropriate illness responses, and his marked lack of cooperation with the job-placement services. Observing that it was appellant’s burden to demonstrate his entitlement to benefits, and considering appellant’s “young age, his work experience, and [his] lack of motivation to return to appropriate work,” the Commission found that appellant had sustained a twenty-percent wage-loss disability.
It was clearly difficult for the Commission to rate appellant’s disability. As the Commission noted, the record is replete with evidence of appellant’s unreliable and sub-maximal efforts in evaluations and his lack of cooperation and motivation. We have for many years held that a claimant’s lack of interest and negative attitude are impediments to the Commission’s full assessment of one’s loss and are factors that can be considered in determining that his wage loss is not as great as he stated it to be. See, e.g., Enterprise Products Co. v. Leach, 2009 Ark. App. 148 , 316 S.W.3d 253 ; Oller v. Champion Parts Rebuilders, 5 Ark.App. 307 , 635 S.W.2d 276 (1982). In my view, the Commission’s opinion adequately explains its decision that appellant failed in his burden of proving entitlement to more than twenty-percent wage-loss disability, and I would affirm.
GLADWIN, J., joins in this dissent.