Opinion
CLAIM NO. D712113
OPINION FILED AUGUST 30, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by PAUL CAPPS, Attorney at Law, Little Rock, Arkansas.
Respondent No. 1 represented by GAIL MATTHEWS and MARCI TALBOT LILES, Attorneys at Law, Little Rock, Arkansas.
Respondent No. 2 represented by MARK LONG, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent No. 2 (Second Injury Fund) appeals an opinion of the Administrative Law Judge filed on October 11, 1993.
The Administrative Law Judge found that claimant was permanently and totally disabled and that the Second Injury Fund is liable for any permanent disability benefits in excess of claimant's permanent anatomical impairment of 20% to the body as a whole. The Second Injury Fund's only contention on appeal is that it has no liability. Therefore, the Administrative Law Judge's finding that claimant is permanently and totally disabled is not an issue before the Commission. However, we find that claimant has proven by a preponderance of the evidence that she is permanently and totally disabled. Additionally, after ourde novo review of the entire record, we find that the Second Injury Fund has liability in this case.
In Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), the Arkansas Supreme Court set forth the test for determining Second Injury Fund liability.
It is clear that liability for the Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury in his present place of employment. Second, prior to that injury the employee must have had permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status. (Original emphasis).
In August 1987 and August 1988, claimant sustained admittedly compensable back injuries while working for the employer. Thus, the first requirement for Second Injury Fund liability has been met.
In order to satisfy the second requirement, it is not necessary that the previous work-related injury result in a loss of wage earning capacity. Second Injury Fund v. POM Inc., 36 Ark. 796, ___ S.W.2d ___ (1994); White Consolidated v. Rooney, 44 Ark. App. 78, 866 S.W.2d 838 (1993), aff'd, 317 Ark. 26, ___ S.W.2d ___ (1994). The prior disability or impairment must have been of a physical quality sufficient in and of itself to support an award of compensation. It is the substantial nature of the condition which is emphasized. Mid-State Construction Co., supra; Second Injury Fund v. POM. Inc., supra.
In September 1978, claimant sustained a back injury while employed with Alliance Rubber Company. Claimant's treating physician rated her permanent anatomical impairment at 10% to the body as a whole and the claim was eventually settled by joint petition. In June 1980, claimant sustained another compensable back injury while employed with Davis Oil Company. It was estimated that she had sustained an additional permanent anatomical impairment of 5% to the body as a whole. This claim was likewise settled by joint petition.
Dr. Blankenship explained that claimant's "back had been anatomically weakened from the injuries in both 1978 and 1980." Dr. Blankenship added that as a result of these injuries, claimant would have had permanent restrictions or limitations concerning her job duties and other daily activities.
Claimant testified that she continued to have intermittent back difficulties. The first job claimant had following her 1980 injury was selling used furniture. Claimant explained that she informed this employer of her back problems and she was not required to do any physical labor. Claimant added that she missed some work as a result of her back condition.
Claimant also sold Avon products, which she could do at her own pace, although she had difficulty getting in and out of her vehicle. While selling Avon, claimant met an elderly couple and agreed to assist them with their daily needs for approximately four hours per day. Claimant did such things as cook, buy groceries, change the bed, and did some laundry. Claimant added that she also did some light housekeeping such as mopping and sweeping but would never perform these duties on the same day. Claimant would "string out" these duties because of her bad back.
Claimant was hired by the employer as a special favor to her cousin, Grady Cullen. Claimant was hired to perform various janitorial duties, such as sweeping, mopping, picking up trash, et cetera. Claimant testified that she informed the employer of her back problems prior to being hired. Claimant added that she would "string out" these duties with the employer in order to protect her back. This employment was the first full time job claimant had had since her 1980 injury. Claimant added that she was able to perform her job duties by working at her own pace and "stringing out" the duties.
Based on the above evidence, we find that claimant had a prior permanent impairment; thus, the second requirement for Second Injury Fund liability has been met. Although the prior injuries were work-related and may or may not have resulted in an actual loss of earnings as of the date of her injuries with the employer, she suffered from a prior permanent impairment of a physical quality sufficient in and of itself to support an award of compensation.
Following her injuries at the employer, claimant underwent fusion surgery at L4-5 and L5-S1. Thereafter, surgery was performed to remove the hardware. Claimant's permanent anatomical impairment is now estimated to be 20% to the body as a whole. As noted above, claimant had a weakened back from her prior injuries and had permanent restrictions or limitations on her activities. She obtained the job with the employer as a favor to her cousin and was able to perform this full time job only because she could work at her own pace and "string out" her job duties. Following her injuries with the employer, claimant is no longer able to perform gainful employment. Based on this evidence, we find that the prior impairments have combined with the recent compensable injuries to produce claimant's current permanent and total disability status.
For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that the Second Injury Fund has liability for permanent disability benefits in excess of the permanent anatomical impairment of 20% to the body as a whole. The Second Injury Fund is directed to comply with the award set forth in the opinion of the Administrative Law Judge. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the Second Injury Fund is liable for claimant's permanent and total disability benefits.
There has not been a combination of any pre-existing disability or impairment with the recent compensable injury to produce the current disability status. In my opinion, claimant's last injury rendered her permanently and totally disabled.
Claimant suffered two work-related back injuries while employed by respondent. The first occurred in August of 1987 when she was moving a box. The second occurred on August 4, 1988 when claimant sustained a slip and fall. As a result of this slip and fall, claimant has undergone several surgeries and has been assessed a 20% permanent partial impairment to the body as a whole. Claimant maintains that as a result of this and her prior injuries, she is permanently and totally disabled. Respondent No. 1 maintains that if claimant is permanently and totally disabled then the Second Injury Fund is liable. The Second Injury Fund is of the position that they do not have any liability. A hearing was held and an Administrative Law Judge found that claimant is permanently and totally disabled and that the Second Injury Fund has liability. The Second Injury Fund appeals.
The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. Faulkner Radio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H. Knight Co., 220 Ark. 333, 248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Additionally, A.C.A. § 11-9-525 provides that prior to the Second Injury Fund having liability the following must be proven:
1. The employee sustained a compensable injury;
2. The compensable injury results in permanent disability or impairment;
3. The employee had a pre-existing disability or impairment whether from a compensable injury or otherwise;
4. After the compensable injury, the overall degree of disability or impairment is greater than would have resulted from the compensable injury alone;
5. The pre-existing conditions were not latent and were known to the employee or employer.
A review of the evidence shows that claimant's present back condition is the result of her last injury and not a result of a combination of claimant's prior injuries. Therefore, I would reverse the decision of the Administrative Law Judge finding that the Second Injury Fund has liability.
It is undisputed that claimant had a prior back injury in 1980 for which she was assessed an impairment rating.
However, I am of the opinion that claimant had recovered from her 1980 injury. There is insufficient evidence of a combination of the 1980 injury with the most recent injury. Therefore, one of the requirements is not met and the Second Injury Fund does not have liability.
Claimant was of the opinion that she had recovered from her 1980 back injury. Claimant testified that she was not hurting and had not hurt. She stated she was able to do her work at the county without too much difficulty. Although she did acknowledge that the lifting, carrying and moping was not easy work, claimant was able to perform the job duties. Furthermore, the claimant told the county insurance adjuster that her back had not given her any problems prior to the slip and fall. Additionally, claimant testified that it was the 1988 slip and fall that is keeping her from working.
The medical records also indicate that claimant had been asymptomatic for quite sometime prior to the slip and fall. Dr. Blankenship acknowledges that claimant had a weakened back prior to the slip and fall. However, her weakened condition had not prevented her from gainful employment. Prior to the slip and fall with the county, claimant was working and was active. Now claimant does very little except sit at home.
There is insufficient evidence to indicate that claimant's last injury combined with her pre-existing condition to result in the present disability. Rather, it appears that claimant's last injury rendered claimant permanently and totally disabled. Therefore, the Second Injury Fund does not have liability and respondent No. 1, Hot Spring County, should be liable for benefits.
ALLYN C. TATUM, Commissioner