CLAIM NO. E506137
BILLY STEPHENS, EMPLOYEE, CLAIMANT v. TRAILMOBILE, EMPLOYER, RESPONDENT and HOME INDEMNITY CO., CARRIER, RESPONDENT No. 1 and SECOND INJURY FUND, RESPONDENT No. 2
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 4, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by TODD WILLIAMS, Attorney at Law, Jonesboro, Arkansas.
Respondent No. 1 represented by CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Respondent No. 2 represented by TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent No. 1 appeals and respondent No. 2 cross-appeals from a decision of the Administrative Law Judge filed December 18, 1996 finding that claimant’s wage loss disability should be apportioned between respondent employer and the Second Injury Fund. Based upon our de novo review of the entire record, we find that we can reach no other conclusion than to find that claimant’s wage loss is solely the responsibility of the Second Injury Fund.
[3] The record reflects that claimant sustained a compensable injury on April 6, 1995. As a result of the injury, claimant underwent surgery in May of 1995. Claimant was eventually released to return to work in a light-duty capacity and he continued to work for respondent employer until January of 1996 when he sustained a non-compensable low back injury for which claimant had a surgical procedure performed on his back in January of 1996.
[4] The record also reflects that prior to beginning employment with respondent claimant sustained a compensable injury in 1988 to his lower back while employed by another employer. As a result of that 1988 prior injury, claimant underwent two surgical procedures to his back, one performed by Dr. Kenneth Tonyman and the second performed by Dr. Waldridge in Memphis. After claimant’s first compensable injury, the records reveal that claimant was never one hundred percent (100%). In September of 1993 claimant was hospitalized due to back pain. A lumbar MRI was performed at that time which revealed a herniated disk at L5-S1 and a degenerating bulging disk at L4-5. Claimant was treated conservatively for these problems and never underwent surgery until after his compensable injury with respondent employer on April 6, 1995.
[5] Claimant was assigned a ten percent (10%) physical impairment rating as a result of the 1988 prior injury and an additional two percent (2%) physical impairment rating as a result of his current compensable injury.
[6] As mentioned above, after returning to work for respondent-employer following his recent compensable injury, claimant again began to experience problems and was hospitalized for surgery in January of 1996. There has been no proof that the January 1996 problem is in any way related to claimant’s compensable injury. Based upon Dr. Tonyman’s testimony that claimant’s January, 1996 problems were not related to claimant’s compensable injury, the parties all agreed that the January 1996 incident was not compensable. However, it must be pointed out that since the surgery in January of 1996 claimant has not returned to work.
[7] The sole issues on appeal before this Commission are whether claimant is entitled to wage loss disability and if so which respondent should bear responsibility for such benefits. The parties do not dispute the award of the twenty percent (20%) decrease in claimant’s wage earning capacity. Rather, the Second Injury Fund argues that
Act 796 of 1993 prevents claimant from receiving any wage loss, and Respondent No. 1 argues that is was error to apportion wage loss among the respondent.
[8] We are not persuaded by the Second Injury Fund argument that claimant has failed to prove by a preponderance of the evidence that the major cause of claimant’s wage loss disability is his 1995 injury. Arkansas Code Ann. §
11-9-102(5)(F)(ii)(a) states “permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.” In this case, the record clearly shows that claimant sustained a two percent (2%) physical impairment as a result of the 1995 compensable injury. Thus, the major cause requirement has been satisfied and permanent partial disability benefits have been paid for this physical impairment.
[9] Mid-State Constr. Co. v. Second Injury Fund,
295 Ark. 1,
746 S.W.2d 539 (1988) sets for the requirements that must be met in order for the Second Injury Fund to have liability. These are as follows:
First, the employee must have suffered a compensable injury at the present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status.
[10] It is clear from reviewing the evidence that the three pronged test set forth in Mid-State Construction Co. has been met. Claimant sustained a compensable injury while employed by respondent employer. Claimant suffered from a pre-existing disability or impairment as a result of his previous 1988 injury for which surgery was performed and for which a ten percent (10%) physical impairment rating was assigned. As a result of these two injuries, claimant’s previous disability or impairment has combined with the recent compensable injury to produce the claimant’s current disability status. As a result of the numerous surgeries claimant has undergone, both for his compensable injuries and his prior 1988 surgery claimant currently has a lifting restriction of no more than 15 pounds and he can no longer work for respondent No. 1. Furthermore, when Dr. Tonyman was asked in his deposition if the two surgeries combined, meaning the 1988 surgery and the 1995 surgery, for a restriction that one surgery alone would not have created Dr. Tonyman testified “that’s correct.”
[11] When it is determined that the Second Injury Fund has liability, the Second Injury Fund is responsible for all wage loss awarded. Ark. Code Ann. §
11-9-525(b)(3). The respondent employer is only responsible for the physical impairment rating resulting from the compensable injury. Id. Thus, we find that the decision of the Administrative Law Judge apportioning wage loss disability benefits between respondent No. 1 and the Second Injury Fund should be reversed. All wage loss should be born by the Second Injury Fund.
[12] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[13] Commissioner Humphrey concurs.
