WEATHERS v. ACTION, INC., 1998 AWCC 254

CLAIM NO. E601215

RICHARD WEATHERS, EMPLOYEE, CLAIMANT v. ACTION, INC., EMPLOYER, RESPONDENT NO. 1 and CNA INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 1 and SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 29, 1998

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

Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.

Respondents No. 1 represented by the HONORABLE WAYNE HARRIS, Attorney at Law, Fort Smith, Arkansas.

Respondent No. 2 represented by the HONORABLE JUDY RUDD, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed and Adopted in part and reversed in part.

[1] OPINION AND ORDER
[2] Claimant appeals the opinion and order of the administrative law judge filed on November 12, 1997 and the Amended Opinion of the administrative law judge filed on November 24, 1997. Respondent No. 2 cross-appeals the Amended Opinion of the administrative law judge filed November 24, 1997. In the Amended Opinion, the administrative law judge made the following findings of fact and conclusions of law:

1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.
2. On January 16, 1996, the relationship of employee-employer-carrier existed between the parties.
3. The claimant sustained a compensable injury to his low back on January 16, 1996.

4. All medical has been paid.

5. Respondents have accepted the 13% to the body as a whole rating.
6. Claimant’s healing period ended June 10, 1996.
7. The claimant earned wages sufficient to entitle him to a weekly compensation rate of $154.00 for permanent partial disability.
8. The claimant has failed to show that the proposed program of rehabilitation which he presented is reasonable.
9. The claimant has failed to prove that he is entitled to wage loss over and above the 13% whole body impairment rating.
10. The Second Injury Fund has no liability in this matter.
11. The Second Injury Fund’s motion to be dismissed from this case on the grounds that they were improperly joined pursuant to Rule 24 is denied. A pre-hearing conference was held in this matter between the claimant and Respondent No. 1 on February 28, 1997. At that pre-hearing conference it was discussed by the parties the necessity of possibly bringing in the Second Injury Fund. As a result of research and discovery the Second Injury Fund was noticed by the claimant before the hearing scheduled for May 15, 1997. The claimant and Respondent No. 1 were granted a continuance allowing all parties to prepare and complete discovery. The Second Injury Fund argued that since they were not initially noticed for pre-hearing conference nor noticed thirty (30) days prior to the original scheduled final hearing in May, they can not [sic] be made a party to this case. Certainly the Second Injury Fund as well as any other party should have adequate time to prepare and complete discovery before coming to a final hearing. In this matter all parties, including the Second Injury Fund, had adequate time to complete their discovery and prepare for the hearing which was eventually held on July 24, 1997. In many cases the parties are unaware of the possibility of Second Injury Fund liability until they are into their discovery process following the initial pre-hearing conference. To not allow the Second Injury Fund to be joined for the possible benefit of the claimant as well as the respondent when it is determined by discovery that there may be the possibility of Second Injury Fund liability defeats the purpose of having a Second Injury Fund. To also require each party to join the Second Injury Fund in every case with the outside possibility that there might be Second Injury Fund liability would over burden the Fund as well as the Commission and would be of no benefit to any of the parties.
12. This claim should be denied in its entirety.
13. Respondent No. 1’s Motion to Assess Reporting Costs is hereby granted.
14. The Second Injury Fund, Respondent No. 2 herein, is ordered to pay one half the cost of the transcript in this matter.

[3] We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge’s decision with regard to findings 1 — 12 is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that these findings made by the administrative law judge are correct and they are, therefore, adopted by the Full Commission. [4] However, we find that the administrative law judge was not justified under the facts of this case in imposing any portion of the transcription costs against the Second Injury Fund. Commission Rule 20 provides in relevant part:

The expense of taking and transcribing a hearing before the Commission or Administrative Law Judge shall be borne by the respondents; provided, however, that no such expense shall be assessed against the Death and Permanent Total Disability Bank Fund or the Second Injury Fund unless the Commission or an Administrative Law Judge determines that such expense is justified and directs the Death and Permanent Total Disability Bank Fund or the Second Injury Fund to pay such expense or some portion thereof.

[5] In the present case, the claimant has no compensable wage loss, and the Second Injury Fund has no liability on the benefits sought by claimant. Notably, the Second Injury Fund was not timely
or properly noticed by the claimant or Respondents No. 1 when the Second Injury Fund was initially made a party, but that deficiency under Commission Rule 24 was ultimately cured by discovery continuances granted for the benefit of the claimant and Respondents No. 1 (not a continuance to cure the deficient notice provided to the Second Injury Fund). In light of the deficient notice provided to the Second Injury Fund, we find that the Fund’s initial objection to being made a party in disregard of the requirements of Rule 24 was well taken. Where the record indicates that the Fund was provided defective notice under Rule 24, justifiably objected thereto, and was later found to have no liability on the merits of the case, we cannot agree with the administrative law judge that the Fund’s objection and evidence and discussion at the hearing on that issue justifies an award of transcription costs against the Second Injury Fund. Therefore, we find that findings No. 13 and 14 must be, and hereby are, reversed. [6] We therefore affirm the November 24, 1997 decision of the Administrative Law Judge, including all findings of fact and conclusions of law therein, and adopt the opinion as the decision of the Full Commission on appeal on findings No. 1 — 12, but reverse the administrative law judge’s decision with respect to findings No. 13 and 14. [7] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[8] Commissioner Humphrey dissents.