Opinion
CLAIM NO. D902434
ORDER FILED DECEMBER 22, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JOSEPH C. SELF, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 1 represented by RICK SELLARS, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by E. DIANE GRAHAM, Attorney at Law, Second Injury Fund, Little Rock, Arkansas.
ORDER
This matter comes on for review from the remand of a Court of Appeals' opinion dated December 1, 1993. The Court of Appeals reversed and remanded this matter to the Full Commission for further consideration consistent with its opinion. In its opinion, the Court of Appeals noted that, "[t]he Commission erred by adopting an erroneous interpretation of the phrase `disability or impairment' as employed in A.C.A. § 11-9-525(b)(5) (1987)." The Court of Appeals continued stating that, "[f]or purposes of Second Injury Fund liability, the term `impairment' can be either work-related or nonwork-related."
After reviewing the record and consistent with the Court of Appeals mandate, we find that claimant has proven by a preponderance of the credible evidence that he is permanently and totally disabled and that the Second Injury Fund has no liability.
At the time of hearing, claimant was 49 years old with a ninth grade education. The Administrative Law Judge noted that claimant appeared to be uncomfortable at the hearing, shifting his weight. A claimant's work history is predominantly manual labor, including, but not limited to, employment as a welder, fabricator, building and farm laborer. Claimant has not returned to work following his second injury.
As a result of his second injury, claimant was assessed a permanent impairment rating of 25% to the body as a whole and released to return to work. Dr. Haines recommended rehabilitation. However, claimant's residence in a remote location in Arkansas has hampered the physical therapy. Additionally, claimant underwent an evaluation by a rehabilitation counselor who noted that claimant's physical condition has rendered him such "that would prevent him from finding employment in his area or entering into an educational program that would allow him to become employable." Thus, based upon the appropriate wage loss disability factors, including but not limited to, medical evidence, age, work experience, pre-injury and post-injury wages, education, interest in rehabilitation and attitude, we find a preponderance of the credible evidence that purports the determination that claimant has been rendered permanently and totally disabled.
The evidence also shows that the Second Injury Fund is not liable for claimant's permanent and total disability benefits. In order for the Second Injury Fund to be liable, the conditions set forth in Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988) must be met. The Mid-State Constr. Co., supra, provides that the following must be met in order for the Second Injury Fund to incur liability:
(1) The employee must have suffered a compensable injury with the respondent employer;
(2) prior to the second injury, the employee must have had a permanent disability or impairment;
(3) the disability or impairment must have combined with the second compensable injury to produce the current disability status.
A review of the evidence indicates that the third prerequisite has not been met; therefore, the Second Injury Fund has not incurred liability.
It was stipulated that claimant sustained a compensable injury while working for respondent. Thus, the first requisite of Second Injury Fund liability has been met.
In light of the recent case, White Consolidated v. Rooney, 44 Ark. App. 78, 866 S.W.2d 838 (1993), we find that the second requisite for the Second Injury Fund liability has been met. White Consolidated v. Rooney, supra, holds that "impairment" can either be work-related or non-work-related. In 1983, claimant had a work-related back injury. In 1984, claimant joint-petitioned the claim and received benefits equalling a 10% to the body as a whole. The joint petition agreement inherently implied "impairment" or "disability." Therefore, we find that the second prong has been met.
However, claimant's prior disability or impairment does not appear to have combined with the second compensable injury to produce claimant's current disability status. A review of the evidence shows that claimant healed successfully following his first injury. Although claimant was paid a 10% permanent impairment rating, he was released to return to work without any restrictions and was not only able to return to work but was able to work overtime. Additionally, claimant testified that on his application for employment with respondent No. 1, he reported his prior injury but indicated that he did not have any physical limitations as a result thereof.
Following the February 13, 1989 second injury, claimant underwent surgery. As a result of this surgery, claimant was assessed a 25% permanent impairment rating. Claimant was released being limited to no lifting in excess of 20 pounds, no repetitive lifting, a modification of all activity requiring any heavy lifting, no prolonged repetitive bending or twisting, no crawling or working in confined spaces, no climbing or working in environments that necessitate good balance. Furthermore, after undergoing a rehabilitation evaluation, it was opined that claimant could not return to work. Additionally, claimant testified that as a result of the second surgery, he has had persistent pain in both legs and his back is aggravated by bending, stopping, lifting, walking and sitting. He further testified that there was a drastic difference between his activities prior to and subsequent to the second injury. A review of the evidence indicates that claimant has been rendered permanently and totally disabled as a result of his second back injury and subsequent surgery.
In Danny McWilliams v. Arkansas Highway Trans. Dept., Public Employees Claim Division Second Injury Fund, Claim No. D801186 (Dec. 6, 1991), the Full Commission held that "[t]he mere fact that the claimant previously underwent surgery in the same area of the body and ultimately received an impairment rating for that surgery simply is not sufficient in itself to impose liability on the Second Injury Fund." Therefore, in our opinion, the third prerequisite for Second Injury Fund liability has not been met.
We find a preponderance of the credible indicates that claimant is permanently and totally disabled and that the Second Injury Fund does not have liability.
IT IS SO ORDERED.
Commissioner Humphrey concurs.