BACON v. MARKHAM STREET BAPTIST CHURCH, 1997 AWCC 39

CLAIM NOS. D813830 E210981

MARY BACON, EMPLOYEE, CLAIMANT v. MARKHAM STREET BAPTIST CHURCH, EMPLOYER, RESPONDENT NO. 1 and ARKANSAS INSURANCE ADJUSTING, INSURANCE CARRIER, RESPONDENT NO. 1 and SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 14, 1997

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents No. 1 represented by the HONORABLE KEVIN STATEN, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by the HONORABLE DAVID PAKE, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on December 11, 1995. In that opinion and order, the administrative law judge found that the Second Injury Fund is entitled to a credit for the claimant’s twenty (20) percent anatomical impairment which preexisted her employment with respondent No. 1. After conducting a de novo review of the entire record, we find that the Second Injury Fund is not entitled to a credit based on the claimant’s preexisting twenty (20) percent anatomical impairment. Therefore, we find that the administrative law judge’s decision must be reversed.

[3] The facts in this case are not in dispute. The claimant sustained admittedly compensable injuries in 1986 and 1992 while employed by respondent No. 1 which caused a ten (10) percent anatomical impairment rated to the body as a whole. At the time the claimant became employed by Respondent No. 1, the claimant had preexisting anatomical impairments of twenty (20) percent rated to the body as a whole. The claimant’s 1986 and 1992 injuries combined with her preexisting impairments to render the claimant permanently and totally disabled. Because the claimant’s injuries sustained while working for respondent No. 1 combined with her preexisting impairments to increase the degree of overall impairment that would have resulted from the last injury alone, the Second Injury Fund has liability for wage loss in this case.

[4] Relying on the Court of Appeals decision in Weaver v.Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990) and the Full Commission decision in Harold M. Jeffcoat v. B.C.Keathley Construction, Full Workers’ Compensation Commission, Sep. 21, 1995 (Claim No. E100971), the administrative law judge found that the Second Injury Fund is entitled to a credit for the claimant’s 20% anatomical impairment which preexisted the claimant’s employment with respondent No. 1.

[5] Under the formula described by the Court of Appeals inWeaver v. Tyson Foods, supra, for cases involving permanent partial disability, the Second Injury Fund is not liable for a claimant’s disability or impairment which preexisted the claimant’s most recent employment. In Harold M. Jeffcoatv. B. C. Keathley Construction, Full Workers’ Compensation Commission, Sep. 21, 1995 (Claim No. E100971), the Full Commission found that the formula developed in Weaver v.Tyson Foods applies to cases involving permanent partial disability as well as cases involving permanent total disability.

[6] However, in Jeffcoat v. Second Injury Fund,
___ Ark. App. ___ (CA96-53) (Opinion delivered Dec. 18, 1996) the Arkansas Court of Appeals held that the Commission erred in applying the formula developed in Weaver v. Tyson Foods to a case involving permanent total disability. Therefore, since the present case involves permanent total disability, we find that the Second Injury Fund is not entitled to a credit for the claimant’s 20% preexisting anatomical impairment. Consequently, we find that the administrative law judge’s decision must be reversed.

[7] The claimant has also appealed the authority of the administrative law judge to enter the amended order which found that the Second Injury Fund was entitled to a credit for the claimant’s 20% preexisting anatomical impairment. In addition, the claimant has challenged the constitutionality of the credit awarded by the administrative law judge. In light of our decision reversing the administrative law judge’s award of a credit to the Second Injury Fund, we find that the claimant’s remaining arguments on appeal are moot.

[8] For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (b) (1987).

[9] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[10] Commissioner Wilson concurs.