The opinion
John E. Jennings, Chief Judge, concurring in part, dissenting in part. The majority holds, as I understand it, that the Commission erred in not awarding to the appellant “some degree” of permanent partial disability. One problem with this holding is that this is not the appellant’s contention. To the contrary, appellant argues that she “has proven that she is totally, permanently disabled.” There is not the slightest suggestion by the appellant that the Commission, on its own, ought to have found “some degree” of permanent partial disability. The majority states that “it is clear that the Commission denied appellant benefits for permanent, partial anatomical, loss of the use of her body for the sole reason there was no numerical rating assigned by a physician.” Even the appellant recognizes that this is not true:
The Commission, in adopting the administrative law judge’s decision, made the finding that the appellant was entitled to no permanent disability benefits for two reasons. First being that she was given no permanent partial physical impairment rating, and secondly, that the claimant was offered employment within her capacity, so that she would be limited to her anatomical impairment, pursuant to Ark. Code Ann. § ll-9-522(b). [Appellant’s brief.]
The majority says, “The record contains evidence from which reasonable minds could conclude that appellant sustained some degree of permanent impairment.” (Emphasis added.) While I do not disagree, this is not our standard of review and affords no basis for reversal.
Apart from the problem that the issue we reverse on is not urged by the appellant, none of the cases cited by the majority has any significant bearing on the case at bar. For instance the court in Bibler Bros., Inc. v. Ingram, 266 Ark. 969 , 587 S.W.2d 841 (1979), says that nothing in the law requires precise evidence of the amount of “disability.” The court clearly was referring to the combination of both anatomical disability and wage-loss disability. See, generally, Glass v. Edens, 233 Ark. 786 , 346 S.W.2d 685 (1961); Arkansas Best Freight v. Brooks, 244 Ark. 191 , 424 S.W.2d 377 (1968). In Brooks the court said:
The pronouncement in Glass v. Edens, 233 Ark. 786 , 346 S.W.2d 685 (1961), settled the law with reference to nonscheduled injuries. “Loss of the use of the body as a whole” involves two factors. The first is the functional or anatomical loss. That percentage is fixed by medical evidence. Secondly, there is the wage-loss factor, that is, the degree to which the injury has effected claimant’s ability to earn a livelihood. [Emphasis added.]
In determining permanent partial disability, factors such as the claimant’s age, education, experience, and other matters affecting wage-loss, must be considered along with the medical evidence. Ark. Code Ann. § 11-9-522 (Supp. 1993); Glass v. Edens, supra. This is the reason that the court in Wilson v. Christman, cited by the majority, stated that the Commission is not limited to medical evidence only in arriving at its decision on permanent partial disability.
The practical difficulties in remanding this case to the Commission with instructions to fix, on this evidence, a certain degree of permanent partial disability, are overwhelming. Any finding of fact the Commission makes will simply be a guess.
The case at bar is one of those unusual workers’ compensation cases in which the principle of the burden of proof has some bearing. While I agree with the majority that there is evidence that the appellant sustained some degree of permanent partial impairment, it was the claimant’s burden to offer some evidence as to the degree of that impairment. It is roughly analogous to the burden of a plaintiff in a tort action to produce evidence of the amount of her damages. The jury, like the Commission here, cannot simply be left to speculate. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516 , 780 S.W.2d 543 (1989).
Finally, the majority agrees with the Commission that there was evidence to support the Commission’s finding that had the appellant returned to work “she would have earned the same wage that she was earning at the time of her departure.” Ark. Code Ann. § 1 l-9-522(b) provides that under such circumstances she “shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.” (Emphasis added.) This was an alternative basis for the Commission’s denial of permanent disability benefits and another reason why we err in reversing the decision in this case.
For the reasons stated, I respectfully dissent.