CLAIM NOS. D903112 and E004470
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 13, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAMES F. SWINDOLL, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by the HONORABLE H. CHARLES GSCHWEND, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified in part and reversed in part.
[1] OPINION AND ORDER
[2] Respondents No. 1 and Respondents No. 2, the Second Injury Fund, appeal an opinion and order filed by the administrative law judge on March 7, 1994. In that opinion and order, the administrative law judge found that the claimant sustained a 35% impairment to her earning capacity in addition to the permanent physical impairment established by the medical evidence. In addition, the administrative law judge found that the Second Injury Fund has liability.
[11] Mid-State Construction, supra. [12] As discussed, 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 andTransportation 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.1. The employee must have suffered a compensable injury at his present place of employment;
2. Prior to that injury, the employee must have had a permanent partial disability or impairment;
3. The disability or impairment must have combined with the recent compensable injury to produce the current disability status.
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. [13] In the present claim, we find that the preponderance of the evidence fails to establish that the claimant’s 1984 injury combined with the injuries sustained in the employment of the respondent employer to produce the current disability status. Instead, we find that the evidence establishes that the compensable injuries sustained in the course of the claimant’s employment with the respondent employer were sufficient in themselves to produce her disability status. [14] In this regard, the 1984 injury and the 1989 injuries were to the same area of the claimant’s lumbar spine. However, the 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. Arkansas Highway and TransportationDepartment v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670
(1993). The evidence indicates that the claimant recovered completely from the 1984 surgery and that she did not experience any residual difficulties as a result of that injury and the resulting surgery. She was able to perform relatively heavy duties as an emergency medical technician and as a licensed practical nurse with no difficulty, and she testified that the surgery did not result in any change in her ability to physically do things as she did before the injury and surgery. She testified that she was able to do anything after the surgery that she could do before and that her back was “fine and back to normal” prior to the 1989 injuries. [15] Furthermore, Dr. Moore testified that the February 20, 1989, injury was sufficient in itself to result in the claimant’s current state of disability. As discussed, Dr. Moore’s testimony indicates that he did not impose any real restrictions on the claimant after the 1984 injury; however, after the 1989 injuries, he restricted her lifting, pushing, pulling, squatting, crawling, climbing, and overhead reaching, and he indicated that she would need to alternate sitting and standing. Furthermore, Dr. Moore testified that the February 20, 1989, incident in itself was sufficient to cause a herniated nucleus pulposus, regardless of whether or not the claimant had ever experienced any back problems, and he testified that her disability could have been caused by the December 24, 1989, incident. Moreover, he testified that the likelihood that a subsequent injury is associated with a prior surgery decreases as time passes from the first surgery. [16] In short, the evidence establishes that the injuries sustained by the claimant in the course of her employment with the respondent employer were sufficient in themselves to create her current disability status. Therefore, we find that the Second Injury Fund does not have liability. [17] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant sustained a 25% impairment to her earning capacity in addition to the degree of permanent impairment established by the medical evidence. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed as modified. However, we find that the Second Injury Fund does not have any liability. Consequently, we find that the administrative law judge’s decision in this regard must be reversed. [18] 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). For prevailing on this appeal before the Full Commission, 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). [19] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[20] Commissioner Humphrey concurs.