Cohn v. Haile, CA

• Decision Date: 07 November 1979
• Docket Number: No. CA,CA
• Citation: 589 S.W.2d 600,267 Ark. 734
• Parties: M. M. COHN et al., Appellants, v. Pauline HAILE, Appellee. 79-59.
• Court: Arkansas Court of Appeals

Page 600

589 S.W.2d 600

267 Ark. 734

M. M. COHN et al., Appellants, v. Pauline HAILE, Appellee.

No. CA 79-59.

Court of Appeals of Arkansas.

Nov. 7, 1979 Released for Publication by the Court of Appeals.

Laser, Sharp, Haley, Young & Huckabay, Little Rock, for appellants.

Pickens, Boyce, McLarty & Watson, Newport, for appellee.

NEWBERN, Judge.

In this workers' compensation case the appellants ask us to reverse the award to the claimant because it is not supported by substantial evidence. The primary assertions of the appellants are (1) that the medical testimony proves the claimant's functional disability is no more than 20%, and (2) the claimant has chosen to withdraw from the labor market because she has reached retirement age and is eligible for social security benefits.

The claimant was 62 years old when she fell as the result of slipping on an oily substance on the floor while she was at work as a salesperson for M. M. Cohn. Her shoulder was fractured, and after a long period of treatment, including surgery, one physician concluded her shoulder sustained functional disability of 10% And her right upper body was disabled 10%. Another doctor concluded she had a permanent partial impairment of 20% To the right upper extremity as a result of the injury, and that she would be unable to lift anything over head with that extremity "for a period of time" and "probably should not lift any weights over ten pounds with this extremity." He also recommended that if she performed limited work, she "might be allowed to sit for a period of time" in the event she developed pain on her right side.

The claimant consulted a vocational psychologist who concluded:

"I . . . feel that due to her age (65 at the time of his evaluation) and disabilities, that it will be very difficult for her to locate competitive employment and while she states a strong desire to be suitably employed and to return to her former activities, my suggestions for this lady would be retirement."

The claimant was also evaluated by a clinical psychologist whose deferred diagnosis of her was "psychoneurosis with depression." He found she did not have an interest in going back to productive work and that in his opinion "she probably would manifest stress-related difficulties if she were involved in full-time work." His conclusions also included the following:

This psychologist is of the opinion that the probability of Mrs. Haile going back to some productive work is very small. I do not feel that she is capable of full time employment given her age and physical problems. If she were younger in age and had the use of her arm, she could be expected to succeed in a rehabilitation program and secure employment suited to her abilities. Should her injury not (have) occurred, Mrs. Haile would have had numerous occupations from which to choose: . . . .

We hold there is substantial evidence this claimant is totally disabled. The Arkansas Supreme Court long ago departed from the restrictive view that only anatomical or functional disability could be considered in determining disability to the body as a whole. The departure came in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), and since that case was decided we have been among the great majority of jurisdictions which allow consideration of several factors in determining not just functional bodily limitations, but loss of earning capacity as a predicate for workers' compensation. See, Wright, Compensation for Loss of Earning Capacity, 18 Ark.L.Rev. 269 (1965), and 2 Larson, Workmen's Compensation Law, §§ 57.51 and 57.61 (1976). Professor Larson suggests the principle and the factors as follows:

If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant's mental capacity, education, training, or age, places claimant Prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. (2 Larson, Supra, § 57.61, pp. 10-136 and 10-137)

The odd lot doctrine refers to employees who are able to work only a small amount. The fact they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. 2 Larson, Supra, § 57.51, pp. 10-107, Et seq.

In Arkansas Best Freight Sys., Inc. v. Brooks, 244 Ark. 191, 424 S.W.2d 377 (1968), the Supreme Court sustained an award of compensation for total disability despite medical evidence the claimant was only functionally disabled to the extent of 50%. The court said:

"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...