ZENTNER v. GARDEN CITY NURSERY TRAVELERS INSURANCE CO., 1997 AWCC 292

CLAIM NOS. E002535 E304902

DEWEY ZENTNER, EMPLOYEE, CLAIMANT v. GARDEN CITY NURSERY and TRAVELERS INSURANCE COMPANY, RESPONDENT NO. 1 and DARRELL BOLING/HOME BUILDERS, RESPONDENT NO. 2 and SECOND INJURY FUND, RESPONDENT NO. 3

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 17, 1997

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

Claimant represented by JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondent No. 1 represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 appears pro se.

Respondent No. 3 represented by DAVID PAKE, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Claimant appeals an order of the Administrative Law Judge dismissing the Second Injury Fund from this claim with prejudice.

[3] The Administrative Law Judge had found, among other things, that the Second Injury Fund had no liability for permanent disability benefits. The Commission affirmed and adopted this opinion. In an unpublished opinion delivered September 13, 1995, the Arkansas Court of Appeals stated the following:

Appellant’s [claimant’s] final argument on appeal is that the Commission erred in determining that the Second Injury Fund has no liability in this case. However, appellant concedes in his brief that if we affirm the finding that the appellant’s second heart attack was not a compensable injury, then the Second Injury Fund would not be liable . . . Because the appellant failed to prove his second heart attack was a compensable injury, the Commission’s decision finding no Second Injury Fund liability is supported by substantial evidence. (Emphasis added).

[4] Subsequent to the Court’s opinion, claimant filed a claim with the Commission for permanent disability benefits but alleged that the Second Injury Fund continued to be subject to the jurisdiction of the Commission and Court. However, the Commission and the Court have found that the Second Injury Fund has no liability and this finding has become the “law of the case.” [5] Accordingly, we affirm the order of the Administrative Law Judge dismissing the Second Injury Fund from this case with prejudice. [6] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner MIKE WILSON, Commissioner