ROONEY v. WHITE CONSOLIDATED, 1994 AWCC 183

CLAIM NO. D808576

ALONZO ROONEY, EMPLOYEE, CLAIMANT v. WHITE CONSOLIDATED, EMPLOYER, RESPONDENT NO. 1, and CONTINENTAL LOSS ADJUSTING SERVICES, INSURANCE CARRIER, RESPONDENT NO. 1, and SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 1, 1994

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

Claimant represented by the HONORABLE ROBERT H. MONTGOMERY, Attorney at Law, Little Rock, Arkansas.

Respondents No. 1 represented by the HONORABLE RALPH R. WILSON, Attorney at Law, Little Rock, Arkansas.

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

[1] OPINION AND ORDER
[2] This matter comes before the Full Commission on remand from the Arkansas Court of Appeals. On December 5, 1991, the administrative law judge filed an opinion and order finding that the claimant is permanently and totally disabled and that the Second Injury Fund had liability. On August 11, 1992, this Commission filed an opinion and order affirming the administrative law judge’s finding that the claimant is permanently and totally disabled but reversing the finding of Second Injury Fund liability. With regard to Fund liability, we found that the Fund had no liability because the claimant’s prior condition was work-related and did not result in a loss of earning capacity. However, the Court of Appeals abolished any distinction between prior conditions that are work-related and prior conditions that are not work-related. White Consolidated v. Rooney, 44 Ark. App. 78, 866 S.W.2d 838 (1993). The Court of Appeals decision was affirmed by the Supreme Court. Second InjuryFund v. White Consolidated, 317 Ark. 26, 875 S.W.2d 835
(1994).

[3] On remand, the Court of Appeals has instructed us to determine whether the second and third requirements for Fund liability have been met. In this regard, after reviewing this matter in light of the Court’s decision, we find that the requirements for Second Injury Fund have been satisfied. With regard to the second requirement, the physician who performed surgery on the claimant in 1982, opined that the claimant sustained a 35% permanent physical impairment. The claimant’s treating physician after the 1988 injury, Dr. John Wilson, opined that the claimant is suffering from a twenty-five percent (25%) anatomical impairment, and he opined that fifteen percent (15%) preexisted the 1988 injury. After considering all of the evidence in the record, we find that a preponderance of the evidence establishes that the claimant sustained a thirty-five percent (35%) permanent physical impairment as a result of the 1980 injury, and we find that he sustained a ten percent (10%) permanent physical impairment as a result of the March 29, 1988, injury. Therefore, we find that the former condition was sufficient in nature and degree to constitute an impairment qualifying the claimant as one of the “handicapped” for whose benefit the statute was enacted. [4] In addition, we find that this impairment combined with the recent compensable injury to produce the current disability status. In this regard, based on MRI results, Dr. Wilson opined that the 1988 injury tore some of the scar tissue from the first surgery and that this caused the claimant’s current problems. In addition, Dr. Wilson opined that the presence of the scar tissue predisposed the claimant to the subsequent back condition, comparing the situation to a “time bomb . . . [waiting] for something to happen down the line.” Furthermore, Dr. Wilson opined that the claimant would not be experiencing his current problems if the 1980 injury and the 1982 surgery had not occurred. [5] Accordingly, based on our review of the entire record, and for the reasons discussed herein, we find that the Second Injury Fund has liability in this claim. [6] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner PAT WEST HUMPHREY, Commissioner