Hampton v. Black

James R. Cooper, Judge. The employer in this workers’ compensation case, Hampton and Crain, and its insurance carrier, CNA Insurance Companies, appeal from the Arkansas Workers’ Compensation Commission finding that the appellee is entitled to a vocational rehabilitation evaluation. The appellants contend on appeal that the appellee is not entitled to the evaluation because he “has not shown that he is entitled to permanent disability benefits.” When reviewing a decision of the Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Company v. bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). At a hearing held on May 24, 1989, the parties stipulated that a compensable injury occurred on June 25, 1987, and that maximum wage benefits applied. The appellee contended his injury triggered his entitlement to an evaluation as to the propriety of vocational rehabilitation; the appellants contended that the appellee had returned to work; that he did not have a permanent disability; and that he was not entitled to the rehabilitation evaluation. Arkansas Code Annotated § ll-9-505(a) (1987) provides: In addition to benefits otherwise provided for by this chapter, an employee who is entitled to receive compensation benefits for permanent disability shall be paid reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee. The appellee testified that he was a carpenter who primarily did finish work and cabinet building. He said he was cutting tie wires when a piece of steel hit him in the left eye, and he is no longer able to do finish carpentry work although he can still do rough carpentry. He testified that he is left-handed and because of the injury to his left eye he “couldn’t hit a nail or nothing else.” He said he has blurred vision and the sun irritates his eyes; because of his poor eyesight, he leaves cracks in window casings “you could stick a match through”; he “miscuts” lumber and other materials: and he built one house three inches “out of plumb.” The appellee said he was afraid Hampton and Crain would lay him off so he got a release from his doctor and went back to work; however, he “couldn’t drive a nail, couldn’t do nothing.” So, he said he would have to wait until his eye got better. He insisted he was an expert carpenter before his injury but now “people don’t come to me no more, you know, wanting me to do the work.” On cross-examination the appellee testified that prior to his injury he had made $11.00 or $12.00 an hour. Since the injury, he had worked in Shreveport and made $6.00 an hour building screened porches on each end of an old house; had made $ 10.00 an hour helping to build two houses; and had also worked at a chemical plant in El Dorado as a journeyman carpenter making union scale of $12.35 an hour. In a letter dated August 10, 1987, Dr. John Williamson, an opthalmologist, reported: Mr. Black was seen on 6-26-87 with a history of sustaining an injury to his left eye. . . . .He had a large metallic foreign body located in the central portion of his left cornea which appeared to have been present for a number of days. The foreign body was removed without difficulty, however, there was a considerable amount of rust staining of the cornea stroma, the majority of which was removed. . . . He was last seen on 7-24-87, visual acuity was 20/25 and 20/30. He does have some scar related to the injury in his central cornea, however, no surgery is anticipated. In another letter dated June 3, 1988, Dr. Williamson wrote: [Appellee] has some residual scarring and some continued complaints of photophobia, however, functionally his vision is quite good. No other treatment is anticipated and since his vision is almost to normal he has not been carried as sustaining any permanent disability. On July 6, 1988, Dr. Williamson wrote: Mr. Black was back in the office on July 6, 1988, at your request. His vision in the right eye is 20/15, vision in the left eye is 20/30. He continues to have a scar on his left cornea from his previous injury. His disability is still quite small. I would not recommend a corneal transplant on the basis of the size of the scar and with 20/30 vision I think it would be ill advised to pursue any additional treatment at the present time. If his vision should deteriorate in the left eye, then we can always hold in reserve the fact that he could have a corneal transplant but his vision should be substantially worse than 20/30 before that is indicated. Subsequently, appellee was examined by another ophthalmologist, Dr. Cliff Clifton, who reported on December 8, 1988, as follows: I saw Rex Black on December 5, 1988 with a history of having a foreign body removed form his left eye approximately one year ago. On my examination his visual acuity was 20/15 in the right eye and 20/30 in the left eye. His examination revealed a corneal scar just in the inferior portion of the pupillary axis of the left eye. I agree with Dr. John Williamson that this represents a very small decrease in his vision. However, it did occur to his left eye which is his dominant eye and makes it a more difficult adjustment. I do not feel that this defect will increase with time and I do not recommend corneal transplantation which would be the only treatment. It would be very difficult to attach a percentage of disability to this defect. However, I would estimate it at least less than 5% of one eye. We do not agree with the appellants’ argument that the appellee is not entitled to a vocational rehabilitation evaluation because he is not entitled to permanent disability benefits. We first note that Ark. Code Ann. § 11-9-505(a), supra, does not require that permanent disability benefits be awarded a claimant before he can have vocational rehabilitation but only that he be “entitled to receive compensation benefits for a permanent disability.” The opinion of the administrative law judge found: That the claimant has sustained vision loss in his left eye, as a result of the compensable injury, as well as some degree of permanent impairment. That the claimant is a finish carpenter by profession, left-handed and sustained vision loss in his dominant eye; and, as a consequence of his compensable injury and resulting vision loss as well as permanent partial impairment, claimant’s job performance and employability has been adversely affected. [Emphasis added.] The law judge’s findings were adopted by the full Commission and we think there is substantial evidence to support the Commission’s action. We also note that in Smelser v. S.H. & J. Drilling Corp., 267 Ark. 996, 593 S.W.2d 61 (Ark. App. 1980), we said: Whether or not an injured employee can be retrained is a pertinent factor for the Commission to consider in determining the amount, if any, of wage earning loss. If no rehabilitative evaluation is made the Commission has no way of knowing whether the employee could have been retrained. 267 Ark. At 998. Also, in Coosenberry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982), we said that while Ark. Stat. Ann. § 81-1310 (now Ark. Code Ann. § 11-9-506) does not specifically mention evaluation reports, it does provide for the Commission to determine if a proposed program of vocational rehabilitation is reasonable in relation to the disability sustained by the employee, but “the Commission must first decide if the claimant is a candidate for rehabilitation.” In the present case, the appellee’s loss of vision is a scheduled injury, and under Ark. Code Ann. § 11-9-521 (f) (1987), he would be entitled to compensation for the proportionate loss of use of his injured eye. However, the benefits for scheduled injuries are not limited to the schedule if the injury renders the employee permanently and totally disabled. Johnson Construction Co. v. Noble, 257 Ark. 957, 521 S.W.2d 63 (1975). Therefore, we do not think the Commission erred in ordering the vocational rehabilitation examination. Even if the appellee is not totally disabled, he may be entitled to enter a program of vocational rehabilitation under the provisions of Ark. Code Ann. § 11-9-505 (1987), which allows rehabilitation where a claimant is entitled to benefits for permanent disability and the program is reasonable in relation to the disability sustained. Here, there is evidence that the appellee has not had steady work since his injury. As we said in Smelser, supra, without an evaluation the Commission has no way of knowing whether the appellee can be retrained. Although the parties have not questioned whether the order here is appealable, this is a matter which arose in our conference. We may raise the issue on our own motion. See Gina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680(1989). We will dismiss an appeal on our own motion in cases where we realize that there is no final, appealable order. Gina Marie Farms v. Jones, supra. For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy, putting the court’s directive into execution and ending the litigation or a separable branch of it. Id. We think it significant that the Commission’s order did not merely establish the appellee’s right to a vocational rehabilitation examination: In addition, the appellee was awarded benefits under Ark. Code Ann. § 11-9-505(d) (1987), which provides that: In addition to the benefits previously enumerated in this section, an employee, if not working or receiving other weekly benefits under this chapter, shall be entitled to payment of his regular weekly benefit rate commencing on the date a request for a rehabilitation program is received by the commission, carrier, or employer and continuing during the period the parties are exploring rehabilitation potential, the period not to exceed six (6) weeks. While we express no opinion concerning the appealability of an order granting a vocational rehabilitation examination where benefits under § ll-9-505(d) are not awarded, we hold that an order granting both a rehabilitation examination and benefits under § 1 l-9-505(d) ends a separable branch of the litigation and is therefore appealable. Affirmed. Mayfield, J., concurs. Jennings, J., dissents. Danielson, J., not participating.