CLAIM NO. E309416
LYNDAL YOTHER, EMPLOYEE, CLAIMANT v. CONSOLIDATED FREIGHTWAYS, SELF-INSURED EMPLOYER, RESPONDENT NO. 1 and SECOND INJURY FUND, RESPONDENT NO. 2
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 1, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by SHERMAN A. KUSIN, Attorney at Law, Texarkana, Texas.
Respondent No. 1 represented by E. DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by MARK E. LONG, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Respondent No. 2 appeals from a decision of the Administrative Law Judge filed December 21, 1994. In that opinion the Law Judge found in pertinent part that the claimant proved by a preponderance of the evidence that he was permanently and totally disabled and that the Second Injury Fund was liable for claimant’s permanent and total disability benefits. We affirm that finding of permanent and total disability but reverse that portion of the Law Judge’s finding that the Second Injury Fund is responsible for the permanent and total disability benefits. Claimant sustained both injuries with the same employer and, thus, respondent No. 1 is responsible for the permanent and total disability benefits, not the Second Injury Fund.
[3] Claimant’s current injury is the result of a combination of two injuries, both of which occurred while employed by the same respondent. One injury occurred January 11, 1993, and another injury occurred June 8, 1993. The “same employer” defense prevents the Second Injury Fund from having liability in the instant claim.
[4] Claimant’s first injury with respondent No. 1 occurred on January 11, 1993 when claimant fell off the back of a trailer and injured his lower back. Claimant was released to return to work from this injury at his regular job on April 19, 1993. Subsequently, on June 8, 1993, claimant tripped and fell down a flight of stairs injuring his right shoulder. Since his June 8, 1993 accident, claimant has not returned to work.
[5] Respondent No. 2 contends that claimant’s degenerative back condition was latent prior to his January 11, 1993, injury with respondent No. 1. Respondent No. 1 and claimant argue that claimant’s degenerative back condition was known before his June 8, 1993, injury; thus, it was not a latent injury. We do not find support for the contention that claimant was aware of back problems before his January 11, 1993 injury. A review of the credible evidence indicates that claimant never believed he had a back problem prior to his injury of January 11, 1993. Any latent condition was asymptomatic and undiagnosed prior to this time. After the January of 1993 fall, claimant had back difficulties.
[6] Respondent No. 1 contends that after claimant’s January 1993 fall, the claimant did not have any other back difficulties. However, this is not supported by the evidence. Although respondent No. 1 contends that the January 1993 injury did not independently produce any disability or impairment, this is inconsistent with the evidence and the law that respondent No. 1 is attempting to apply. If claimant did not have any disability or impairment as a result of the January 1993 injury, then respondent No. 1 is responsible for all of claimant’s permanent and total disability benefits because there was no pre-existing impairment or disability for which Second Injury Fund liability would attach.
[7] Prior to the January, 1993 fall, claimant was not undergoing any treatment or complaining of any back difficulties. The claimant’s difficulties began after the January 11, 1993, injury. Although claimant had a pre-existing condition, the January 1993 injury aggravated the condition which resulted and combined with the June, 1993 injury to render the claimant permanently and totally disabled. Both of these injuries occurred with the same employer. In Arkansas law, when an employee suffers successive injuries at the same employer which causes permanent and total disability, the employer alone, and not the Second Injury Fund, is responsible for all benefits. Riceland Foods. Inc. v. SecondInjury Fund,
289 Ark. 528,
715 S.W.2d 432 (1986). In the instant case, claimant’s current status is due to a combination of two injuries which occurred during employment with respondent No. 1. The “same employer” defense precludes a finding of Second Injury Fund liability. Thus, we reverse the decision of the Administrative Law Judge which attached liability to the Second Injury Fund. We affirm the finding of permanent and total disability.
[8] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[9] Commissioner Humphrey concurs.
