CLAIM NO. E118235
FLOYD BLACK, EMPLOYEE, CLAIMANT v. JACUZZI BROTHERS, SELF-INSURED EMPLOYER, RESPONDENT NO. 1 and SECOND INJURY FUND, RESPONDENT NO. 2
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 3, 1995
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.
Respondent No. 1 represented by the HONORABLE RALPH R. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The Second Injury Fund appeals an opinion and order filed by the administrative law judge on March 2, 1995. In that opinion and order, the administrative law judge found that the Second Injury Fund is liable for all benefits awarded in excess of the 7.5% permanent physical impairment. After conducting a de novo review of the entire record, we find that the Second Injury Fund has no liability in this claim.
[3] The claimant was employed by the respondent employer for 17 years as a machinist. However, in October of 1991, he sustained a compensable back injury as he was reaching to pick up cast iron parts from a skid, and he has not worked since that time. He ultimately came under the care of Dr. Phillip Johnson, an orthopedic specialist. X-rays ordered by Dr. Johnson revealed thoracolumbar scoliosis, wedging, and osteophytes in the claimant’s lumbar spine. Dr. Johnson has indicated that the claimant’s preexisting condition was aggravated by the lifting incident at work. Dr. Johnson treated the claimant with medication and physical therapy. However, the claimant’s complaints continued, and Dr. Johnson ordered a MRI. This MRI revealed three bulging discs in the claimant’s upper lumbar spine and a large disc herniation at the T12-L1 lever. Dr. Johnson restricted the claimant’s lifting to 15 pounds, and he advised the claimant to limit his bending and stooping. Dr. Johnson has opined that the claimant has a 15% permanent physical impairment to the body as a whole, and he has attributed 1/2 of this impairment to his employment with the respondent employer. In a prior opinion and order which was filed July 20, 1993, the administrative law judge awarded the claimant benefits for a 7.5% permanent physical impairment, and the administrative law judge’s decision was affirmed and adopted by the Full Commission in an opinion and order filed October 4, 1993.
[4] The claimant is 44 years old. He completed the fourth grade in school, and he dropped out of school in the fifth grade, when he was approximately 13 years old. He testified that he was unable to succeed in school because he has a learning disability. This learning disability sounds like dyslexia by his description, but no evidence aside from the statements of the claimant was presented which related to this alleged learning disability. In this regard, he testified that he was evaluated at St. Vincent Infirmary in the early 1960’s to determine the reason for his inability to perform in school, and he testified that it was determined that he had a learning disability. He was taken out of school at that time, and he entered a rehabilitation course in Hot Springs, where he was taught to do body and fender work. He testified that he is unable to read, write, or solve mathematical problems. However, psychological testing performed after the compensable injury indicate that he is of average to high average intelligence, and these tests indicate that he can read on a third grade level and that he can perform mathematics at the seventh grade level.
[5] Other than the body and fender training in Hot Springs, the claimant has received no further education or special training. His experience has consisted of heavy manual type jobs. In this regard, he has worked in an automotive body shop, in a warehouse where he loaded and unloaded trucks, and in factories. As discussed, he worked for the respondent employer for the 15 years preceding his compensable injury.
[6] Prior to his work-related injury in October of 1991, he had never experienced any back problems. However, he has experienced back problems continuous since that time. In this regard, the record shows that he experiences pain in his lower back which radiates into his hip and, at times, into his lower extremity. He testified that he has 15 good days during each 30 day period. During the good days, he works in his woodworking shop at home doing minor carpentry work. On bad days, he sits in a recliner and watches television. The claimant apparently is a gifted artist, and he spends time drawing and engaging in other forms of artistic activities. Extensive vocational rehabilitation services have been provided to the claimant, and the record shows that he fully cooperated with these efforts. The record indicates that he has applied for over 135 jobs since his employment was terminated with the respondent employer. However, he has received no job offers.
[7] Initially, we note that neither party has appealed the administrative law judge’s finding that the claimant established a prima facia showing that he falls in the odd lot category and that the respondent failed to present evidence showing that suitable employment is regularly and continuously available. After considering all relevant factors, we also find that the claimant is entitled to permanent and total disability compensation under the odd lot doctrine. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed.
[8] With regard to the liability of the Second Injury Fund, the Fund becomes liable only after three requirements have been satisfied. Mid-Stated Construction Co. v. SecondInjury Fund,
291 Ark. 1,
746 S.W.2d 539 (1988). These requirements are as follows:
[9] 1. The employee must have suffered a compensable injury at his present place of employment;
[10] 2. Prior to that injury, the employee must have had a permanent partial disability or impairment;
[11] 3. The disability or impairment must have combined with the recent compensable injury to produce the current disability status.
[12] Mid-State Construction, supra.
[13] In the present claim, it is agreed that the claimant suffered a compensable injury while employed by the respondent. The respondent contends that the claimant’s alleged learning disability constitutes a prior permanent partial disability or impairment. However, it is unnecessary for us to determine whether this alleged learning disability constitutes a disability or impairment, for, even if we found that this alleged learning disability satisfies the second requirement for Fund liability, we would find that this learning disability has not combined with the recent compensable injury to produce the claimant’s current disability status. In Mid-State,
supra, the Court found that the prior condition must combine with the compensable injury “to produce a disability greater than that which `would have resulted from the last injury, considered alone and of itself.'” (Quoting Ark. Code Ann. §
11-9-525 (b) (1987). Consequently, “[i]f the more recent injury alone would have caused the claimant’s current disability status, the Second Injury Fund has no liability.”Arkansas Highway and Transportation Department v.McWilliams,
41 Ark. App. 1,
846 S.W.2d 670 (1993). In determining whether an impairment combined with the compensable injury to produce a greater degree of disability, we must consider the nature of the disability or impairment. Mid-State Construction, supra. The mere fact that the claimant had a preexisting disability or impairment is not sufficient in itself to base a finding that the impairment combined with the work-related injury presently being considered to cause a greater degree of disability.McWilliams, supra.
[14] In the present claim, we find that the claimant’s alleged learning disability has not contributed to his disability status. In this regard, the claimant concedes that the only thing that prevents him from engaging in employment activities such as he performed in the past, as well as other types of employment that he is qualified by virtue of his education and training to hold, is his back problems. While his inability to read and write may preclude his employment in a wide range of jobs, he is at no more of an employment disadvantage in this regard than any other individual with limited education and training. In this regard, although techniques for teaching individuals with dyslexia to read may not have been available in the 1960’s when the claimant was in school, such techniques are available today, and these techniques have been available for several years. Therefore, to the extent the claimant’s inability to read and write affect his employability, it cannot be said that the dyslexia precludes him from learning to read and write.
[15] In short, while the claimant’s inability to read and write may affect the claimant’s employment opportunities, the dyslexia, in itself, does not affect his disability status. The factor that precludes his employment in areas suitable to his education and training is the back problems caused by the injury he sustained while employed by the respondent. Therefore, even if we were to find that the dyslexia satisfies the preexisting disability or impairment requirement, we would find that the dyslexia has not combined with the injury he sustained while employed by the respondent employer to result in a greater degree of disability. Therefore, we find that the Second Injury Fund has no liability in this claim, and we find that the administrative law judge’s decision must be reversed.
[16] Accordingly, we affirm the administrative law judge’s finding that the claimant is entitled to compensation for a permanent and total disability. However, we find that the preponderance of the evidence fails to show that the Second Injury Fund has any liability, and we reverse the administrative law judge’s decision in that regard. 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 Administrative Law Judge’s decision in accordance with Ark. Code Ann. §
11-9-809 (1987).
[17] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[18] Commissioner Tatum dissents.
