*1 313 occurrence and character and extent of the loss for which the claim is made. findWe no error for two reasons. principal 9,May On after seen Dr. having Thompson appellee 1979 her filed of notice claim which of gave she written proof the occurrence and the and extent of the loss. The character denied the promptly claim but furnished no An forms. insurance or company by conduct written provision of its may contract the requirements waive of Denniston, of proof loss. Farmers Mutual Ins. Co. 768, There was (1964). evidence from
which the could have jury found that the filing formal proof loss had been excused under the provisions policy. we note Additionally upon receipt the notice filed by appellee the appellant promptly denied liability. It is settled that the denial liability by insurer is effective as a waiver of formal of loss. proof Federal & Casualty Life 663, Co. v. Weyer, 239 Ark. S.W.2d 22 also
Appellant contends that there was error in other instructions given court. When we view the instruc- whole, tions aas we find that there was no error. The cause is reversed and remanded for new trial.
Mayfield, Glaze, C.J., and J., agree.
CITY OF FAYETTEVILLE v. R. GUESS James CA 83-370
Court of of Arkansas Appeals
Division I delivered
Opinion February *2 Division, Graham, E. Diane Public Claims Employee for Arkansas Insurance Department, appellant.
Odom, Elliott, Martin, Martin, Lee ér L. for by: Mark appellee.
George Cracraft, Judge. City Fayetteville K. from an order of the Workers’ appeals Compensation Commission affirming finding the Administrative Law Judge that has sustained permanent partial disability equal body as a whole. 25% Appellant contends that the finding not supported by substantial *3 evidence and was the result of misapplication the law.
We do not agree.
At a hearing before the Administrative it Law was stipulated that the had appellee received a compensable while in injury employ the appellant and that he had incurred at least a 10%functional impairment. The appellee contended that he has suffered disability addition to his functional impairment.
After the a injury myelogram revealed a herniated disc and lumbar strain. Appellee was given a steroid injection and made remarkable symptomatic improvement without The surgery. doctor gave him a of 10% rating permanent body as a whole. He was released to his regular work the month. following There was testimony that the doctor had informed when appellee he returned to work that he should remain on light work for at duty least a year. Appellee testified that he had told the doctor that in view of the nature of his work this would be impossible. He stated that the doctor then told him to go regular back to his employment to “be careful.”
Appellee’s job activities included lifting, standing, squatting, bending, kneeling, twisting, and re- turning, quired moderate to heavy physical activity. appellee testified that since his return to work he had lost strength his back and his as a legs result of pain. He was unable to bags pound jackhammer, the air compressors,
handle
He
had before his injury.
he
sections
pipe
cement and
of a helper
assistance
he now requires
stated
as he
not
bolts
tighten
he
could
He stated
objects.
lifting
him
affected
before,
shoveling
and
bending
and that
on
mains
water
clamps
difficulty torquing
hadHe
quickly.
in crouched
not work
could
of his
and
pain
because
at
minutes
twenty
thirty
for over
or
mains
on water
positions
rest
his additional
He
resting.
testified
a time without
his
limitations
physical
from
and
pain
to
relief
get
breaks
His
on time.
his work
ability
complete
his
to
had affected
not
was concerned about
worse
was
pain
getting
his
with
crew.
his
of the workload
share
being
carry
able
some
hesitate to assign
testified that he would
A supervisor
his
problems
having
of his back
because
jobs
lifting.”
“watch heavy
old with a tenth
years
grade
was twenty-nine
Appellee
a drill
operator,
He had
worked as
formerly
press
education.
line
crew.
and in a
construction
delivery
power
truck driver
as a laborer
Fayetteville
employed by
City
He was first
his
he was
foreman over
working
and at the time of
injury
he had returned to his
three man labor crew. After
injury
received,
with
along
at
job
wages
the same
subsequently
a 14%cost of
increase.
city employees,
living
all other
*4
found that
Judge
appellant
The Administrative Law
the
loss
in addition to
10%
wage
disability
had suffered
of the
proved by preponderance
functional
loss and
disability
evidence that he had incurred permanent partial
to
as a whole. On
the
appeal
equal
body
25%
the Administrative Law Judge’s
Commission found that
of the
the
decision was supported
preponderance
This
evidence and affirmed his decision.
action by
findings
Commission had the effect
adopting
its own.
conclusions of the Administrative Law
as
Judge
946,
Ark.
Flooring,
v. Ark. Oak
Lybrand
On if There is be evidence. upheld supported by will substantial to if reasonable uphold substantial evidence such an award same conclusion. This court could have reached the minds most favorable to the light the evidence reviews gives testimony of the Commission findings value in favor its order. Allen strongest probative 78, 632 v. 5 Ark. Canning McReynolds, Co. S.W.2d (1982). is well settled that a worker who sustains an to
It injury body may as a whole be entitled to loss wage disability Edens, 786, addition to his anatomical loss. Glass v. In additional (1961). wage loss the Commission take into consideration disability may education, the worker’s work medical age, experience, evidence and other matters to affect the reasonably expected worker’s future A worker be earning power. entitled to may additional loss wage disability even his though wages remain the same or after increase Lion Oil injury. Reeves,
Company 221 Ark. contends, however, Appellant in affirming the findings and conclusions of the Law Administrative Judge, the Commission considered factors which were improper determination additional loss He disability. argues that Commission shifted the burden to the appellant produce “negative factors” which tend to diminish any wage instead of disability requiring the prove disability factors. One conclusion of the Administrative Law which was Judge adopted by the Commission was as follows:
The Workers’ Compensation Commission in deter- mining amount of to func- opposed tional impairment takes into consideration not only the claimant’s age, education and work experience, work, other factors as well. Motivation to return post-injury earnings, credibility, demeanor and a multiplicity factors should be are considered the Law in his determination.
His decision on commented the fact that was appellee believable, found to be "highly credible and one who a making genuine sincere effort in to return attempting had that appellee He found the
to the work environment.” doctor, his was the advice of against returned full duties to duties which probably to attempting perform many to doing everything possible not and was ought perform concluded, He “[Tjhis effects of his injury. minimize the not present that in there are basically my opinion translates have tendency would negative factors which any loss.” wage diminish a consideration of opin- Our of the Law reading Judge’s Administrative that the Commission ion does not lead us to conclusion of factors to his discussion of the absence negative was using unjustified reward him an additional by giving appellee To the disability, by loss as contended wage appellant. was contrary saying we conclude the Commission of evidence the absence of factors made negative appellee’s basis for its acceptable diminished a more earning capacity This is finding of fact. from discussion clear in which we Administrative Law recent opinions nega- upheld apparent the Commission’s consideration full tive attitudes on the part exploit of some claimants that a on market. We stated potential entering job was an negative claimant’s lack interest and attitude full of a to the Commission’s assessment impediment in was it consider claimant’s loss and a factor could it not as he stated wage great loss was determining Rebuilders, be. Champion Oller v. Parts (1982). Here the Commission held merely having that there was an absence of circumstances negative loss which tendency to diminish those factors about wage were this testified. It is to us that factors clear these appellee Commission, in not at arriving considered award, amount of the whether sustained that he had proof his burden fact sustained additional disability. knowledge Commission’s
Although experience evidence, it firm is not once has it medical evidence before it has the and functional limitation physical impairment own of industrial of its advantage knowledge superior demands, limitations and can apply and requirements evidence expertise medical knowledge weighing
319 of functional limitations with other together evidence of the manner which the functional will affect of an ability injured or hold employee obtain a and job thereby arrive at accurate reasonably conclusions as to the extent permanent as related to partial disability the body Rebuilders, as a whole. Oller v. Parts Champion supra; Charles, Rooney 695, & Travelers Ins. v.Co. Ark. 560 262 (1978). find no S.W.2d 797 We error. Mayfield,
Glaze, concurs. agrees; C.J., J., Mayfield, Melvin Chief I Judge, concurring. agree that decision of the Compensation Workers’ Commis- should be sion affirmed am not in full accord with the majority opinion’s discussion the “negative factors” invented theory administrative law who judge conducted the hearing this case.
There should be no occasion to even discuss law decision. judge’s Twenty years ago Court of Supreme Arkansas said “it is the of the duty Commission to make a finding evidence, to a according of the preponderance not whether there is any substantial evidence to support Co., ruling the Referee.” El Moss v. Dorado Drilling 237 80, 81, Ark. 371 recently S.W.2d More 528 court said, “We give law no judge’s findings what- weight Service, v. 489, 495, ever.” Clark Peabody Testing Ark. 360 (1979).
579 S.W.2d The decisions of this court should have made it abundantly clear that we think the above statements are still the law. See Roberts Leo Levi 184, Hospital, 8 App. Oller v. (1983); S.W.2d 307, Rebuilders, Champion Parts 5 Ark. Store, 108, (1982); Dedmon v. Dept. Dillard 3 Ark. App. Inc., (1981); Scheduled Skyways, Jones v. 1 Ark. App. 333 (1981). 612 S.W.2d
The is that problem the Commission’s in this opinion case really does not state that the Commission has any made for itself. findings opinion states: “Our de novo review of the record developed before the Administrative Law leads us to the Judge conclusion that the decision Administrative Law is supported by preponderance real be affirmed.” There no the evidence and must in Moss v. one
difference between statement Co., the court there which caused Drilling supra, El Dorado to make duty out it is the Commission’s point of the evidence. to a preponderance finding according *7 however, the in brief that states appellant, findings in made action this case the Commission’s those of the Commission. Since j conclusions of the law udge Commission, I the by these as made accepts the appellant It, therefore, necessary becomes will so them. accept also theory the invented and “negative to consider factors” the judge. law by advanced this
According opinion, gets to the law judge’s from cases where the found theory two Commission is be found the law by judge. less than that One disability of this court and under Rule unpublished by an 21 opinion “cited, to be Court and Court of not Appeals Supreme brief, or in any or referred to court quoted, by any argument, See, Ark. any materials court.’’ 516. presented or other Rebuilders, Parts The other case is Oller v. Champion In that this court noted that the Commission had supra. case to the interest in exploring referred Claimant’s lack of then discussed a case vocational We decided rehabilitation. the Arkansas one which we Supreme Court and case, said, in of appellant’s decided and “If the instant lack an interest rehabilitation was exploring vocational full assessment impediment appel- Commission’s lant’s she cannot be heard to earning loss capacity, and, of that now.” The law takes this complain judge — be the inverse must true says, “reasons that of wage increase the amount negative absence of factors can wage loss disability, or at least an award support loss disability.”
I missed the of the statement judge point think law we meant any was with what problem If there Oiler. Ark. Oller, Jones, been in Chism v. have clarified it should 268, 658 v. Hempstead and Nicholas (1983), App. S.W.2d Mem. Ark. Hospital, 9 County noted In first case we Commission’s was loss say any wage appeared
opinion toward attitude the claimant’s [negative] precluded rehabilitation, if he had refused we out that even pointed that alone would in a rehabilitation program to participate wage the Commission from not preclude In the Nicholas case we said that while disability rating. loss law, an 1983), Ann. 81-1310(f) (Supp. under the Stat. § cannot be to enter required program employee rehabilitation, to participate may vocational the failure hinder or Commission from fully assessing prevent loss. earning in the above would seem to me to
Nothing justify cases that the absence circum- negative law judge’s theory determination, stances can add to or support any wage is difficult for me how he could so and it to understand misread our But whatever his I do not opinions. inspiration, with the the law agree majority opinion judge’s *8 reference to the absence of negative merely way factors was that this made evidence of diminished saying appellee’s “a more basis” for the law earning capacity acceptable or “a factor to be considered” in judge’s finding whether had sustained his burden of as to his proof I the law disability. totally judge’s would reject in the consideration or theory having any place proper determination of a workers’ claim. compensation
I do think the evidence the Commission’s supports decision. Since the the law judge’s accepts decision, decision as the Commission’s I to affirm that agree decision on the basis that it is and should be affirmed right See, if reason been in its wrong support. even has given Willis, Famous Fried Chicken Popeye’s