CLAIM NO. D614534
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 3, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAN K. NIELSEN, Attorney at Law, Van Buren, Arkansas.
Respondent No. 1 represented by JAMES M. GARY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by MARK E. LONG, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on August 8, 1994 finding that the Second Injury Fund has liability in this matter. A preponderance of the credible evidence indicates that respondent No. 1, Georgia Pacific, should be the responsible party. Therefore, we reverse the decision of the Administrative Law Judge.
[5] The second and third hurdles have not been met. Therefore, the Second Injury Fund does not have liability. Claimant contends that he suffered from hypertension, diabetes, obesity and coronary problems prior to his injury and that these difficulties combined with his work-related injury to create his current disability status. However, a preponderance of the evidence does not support this contention. For example, claimant’s hypertension is controlled by medication. It did not affect his work at any time. In fact, claimant testified that he didn’t miss any work and could not tell that his hypertension in any way had affected him. The medical evidence does not support a finding of any impairment resulting from claimant’s hypertension. [6] Additionally, claimant has diabetes. His diabetes was diagnosed while he was working for Georgia Pacific and prior to his work-related injury. However, claimant testified that his diabetes have been regulated. After being diagnosed, claimant missed approximately one month from work to adjust his insulin. After claimant lost weight, from 300 pounds to 190 pounds, and his insulin was regulated, he had no further difficulties with the diabetes. The aforementioned does not support a finding of any impairment resulting from the diabetes. [7] Claimant contends that his obesity is a pre-existing condition which combined with his work-related injury to result in his current disability. However, a review of the evidence indicates that in 1986, the date of the injury, claimant weighed 230 pounds. Claimant’s weight dramatically increased after the injury. By September of 1989, claimant weighed 311 pounds. Obviously, claimant’s weight became a problem after his work-related injury. [8] Furthermore, claimant contends that he has degenerative arthritis. However, claimant admitted that he was not having any problems and, in fact, the diagnosis was done as a favor to him so he would not have to travel to a ham radio event. There is insufficient evidence that there is an impairment or disability related to claimant’s alleged arthritis condition. [9] Lastly, claimant contends that his heart difficulties pre-exist his work-related injury. However, this is not consistent with the medical records. On August 4, 1986, claimant underwent an EKG which was normal. This was before claimant’s work-related injury. In July of 1987, claimant was admitted into the hospital to have surgery. At that time, an EKG was performed which was abnormal. This shows his heart condition was latent prior to the compensable injury and was apparently not causing him any difficulties. Claimant was not suffering from an impairment or disability related to his heart difficulties prior to September 26, 1986. [10] The aforementioned indicates that claimant did not have a disability or impairment prior to his work-related injury. Thus, in our opinion, the second condition of Mid-StateConstr. has not been met. [11] Additionally, the third requirement of Mid-State(1) an employee must have suffered a compensable injury at his present place of employment;
(2) prior to the injury the employee must have had a permanent partial disability or impairment; and,
(3) the disability or impairment must have combined with the recent injury to produce the current disability status.
has not been met. There is insufficient evidence to prove that there has been a combination of the pre-existing impairment or disability with the compensable injury to create his current disability status. The evidence shows that claimant’s present status is not the result of a combination of the two events. Dr. Fletcher’s testimony is that with surgery claimant could have returned to work and function normally. It is claimant’s latent heart condition, obesity, arthritis, and diabetes which renders him permanently and totally disabled. Therefore, the Second Injury Fund does not have liability. [12] We also find that the Administrative Law Judge erred in awarding attorney’s fees. Claimant was determined to be permanently and totally disabled by agreement. The only question was which respondent would be responsible for paying claimant his entitled benefits. Claimant’s lawyer merely filed a pre-hearing questionnaire on May 16, 1994. This activity is insufficient to award an attorney’s fee on the entire controverted matter. We award the claimant’s attorney a $500 attorney’s fee for the effort of filing the prehearing questionnaire. [13] As stated, we reverse the decision of the Administrative Law Judge. [14] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[15] Commissioner Humphrey dissents.