Opinion
CLAIM NO. E311524
ORDER FILED SEPTEMBER 11, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RICHARD SPEARMAN, Attorney at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by the HONORABLE JOHN R. BEASLEY, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at law, Little Rock, Arkansas.
ORDER
This case comes before the Full Commission on remand from the Arkansas Supreme Court. An administrative law judge filed an opinion and order on May 2, 1994, finding that the claimant has sustained a 20% permanent partial disability to the body as a whole, with 10% representing permanent anatomical impairment and 10% representing additional impairment to his earning capacity. In addition, the administrative law judge found that the Second Injury Fund was not liable for any portion of the 10% wage loss disability because respondent No. 1 failed to prove that any preexisting impairment or disability combined with the claimant's most recent injury to result in a greater disability than would have been caused by the last injury considered alone and by itself. The administrative law judge obviously placed little weight on Dr. Standefer's opinion that a preexisting injury and the work-related injury combined to cause the claimant's 10% anatomical impairment. On September 1, 1994, the Full Commission filed an opinion and order which affirmed the administrative law judge's decision and adopted his findings of fact and conclusions of law. The Arkansas Court of Appeals upheld the decision of the Full Commission in Hawkins Const. Co. v. Maxell, 52 Ark. App. 116, 915 S.W.2d 302 (1996).
In its decision delivered on June 24, 1996, the Arkansas Supreme Court reversed the decision of the Court of Appeals and remanded this case to the Full Commission for further orders consistent with its opinion. In its decision, the Supreme Court stated that the only issue under its review was whether the Second Injury Fund has liability for a portion of the claimant's compensation for permanent partial disability. The Court found that the testimony of Dr. Standefer, the claimant's surgeon following the claimant's most recent injury in 1993, was unrebutted. According to the Court, Dr. Standefer testified that the claimant's 1990 injury "was responsible for 7% of the claimant's 10% permanent disability rating." In addition, according to the Court, "[the] unrebutted testimony of Dr. Standefur is that the impairment suffered in the 1990 injury contributes to the claimant's compensable injury." Consequently, the Court found that there was no evidence to support the Commission's decision that the Second Injury Fund has no liability in this case.
As we interpret the Court's decision, there is insufficient evidence in the record to support the decision of the Full Commission that the Second Injury Fund has no liability in this case. Therefore, based on our interpretation of the Court's decision, and based on the definition of when Second Injury Fund liability arises, as expressed in Ark. Code Ann. § 11-9-525 (b), we find that respondent No. 1 proved by a preponderance of the evidence that the claimant's preexisting impairment combined with his most recent injury to result in a greater disability than would have been caused by the last injury considered alone and by itself.
The first issue on remand is how much liability for permanent partial disability that respondent No. 1 and the Second Injury Fund each have in light of the Supreme Court's decision. This liability is subject to the provisions for disability compensation contained in Ark. Code Ann. § 11-9-525 (b)(4) (Repl. 1996), which states:
(4) After the compensation liability of the employer for the last injury, considered alone, which shall be no greater than the actual anatomical impairment resulting from the last injury, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by the administrative law judge or the commission, and the degree or percentage of disability or impairment which existed prior to the last injury plus the disability or impairment resulting from the combined disability shall be determined, and compensation for that balance, if any, shall be paid out of the Second Injury Trust Fund. . . .
In Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990), the Court of Appeals described the compensation calculation in terms of a four step analysis:
A. Determine the anatomical impairment which resulted from the last injury (Employer's liability).
B. Determine the disability attributable to all injuries or conditions existing at the time the last injury was sustained. (Preexisting disability or impairment).
C. Determine the degree or percentage of the combined disability or impairment.
D. Determine the balance which shall be paid by the Second Injury Fund.
Expressed in terms of a mathematical formula, the liability of the Second Injury Fund is calculated as follows:
Second Injury Fund Liability (D) = (C) — (A + B)
As we interpret the Supreme Court's decision, the unrebutted testimony of Dr. Standefer establishes that the claimant has sustained a 10% permanent partial impairment, with 7% permanent partial impairment caused by the 1990 injury which preexisted his employment with respondent No. 1, and 3% permanent partial impairment caused by the compensable injury sustained while employed by respondent No. 1. In addition, the Full Commission found that the claimant sustained a 10% loss in earning capacity in addition to the 10% anatomical impairment established by the medical evidence, and no party has appealed the Full Commission's determination of 10% wage loss following the second injury. Inserting the figures indicated by the Supreme Court into the formula, the liability of the Second Injury (D) is:
20% — (3% + 7%) = 10%
Therefore, in the present case, the Second Injury Fund is liable for a permanent partial disability compensation rating of 10% to the body as a whole.
In addition, under the formula contained in Ark. Code Ann. § 11-9-525 (b)(4), the respondents are only liable for the actual anatomical impairment resulting from the last injury considered alone and of itself. Therefore, according to the figures indicated by the Supreme Court in the present case, the respondents are responsible for a permanent partial disability compensation rating of 3% to the body as a whole.
Under the Court of Appeals' statutory interpretation of Ark. Code Ann. § 11-9-525 (b)(4) in Weaver v. Tyson Food, supra, the claimant will not receive compensation from either the Second Injury Fund or from the respondents for his 7% impairment that preexisted the second injury. Therefore, the claimant's permanent partial disability compensation has been reduced from 20% to 13% in light of the decision of the Supreme Court.
The second issue on remand is the nature and extent of the credit due respondent No. 1 as a result of the Supreme Court's decision for permanent partial disability compensation already paid to the claimant in excess of 3% to the body as a whole. In that regard, respondent No. 1's attorney requested a "credit" at the hearing on this claim for benefits already paid in the event that respondent No. 1 is not liable in this claim.
As a result of the Supreme Court's decision, the claimant is entitled to permanent disability compensation equal to 13% rated to the body as a whole to be apportioned 3% to respondent No. 1 and 10% to respondent No. 2. However, to the extent, if any, that respondent No. 1 has paid the claimant permanent disability compensation in excess of 3%, respondent No. 1 is entitled to a pro rata credit payable from the 10% liability now apportioned to respondent No. 2. See, Browning's Restaurant v. Kuykendall, 263 Ark. 374, 565 S.W.2d 33 (1978).
The administrative law judge's pre-hearing order indicates that respondent No. 1 paid some portion of the 10% permanent physical impairment rating prior to controverting the claim, although there is no evidence in the record from which to determine whether respondent No. 1 has paid in excess of the 3% rating owed to the claimant as a result of the Supreme Court's decision. Consequently, we find that respondent No. 1's entitlement to a credit is a factual issue and will remain unresolved until additional evidence is taken to determine whether respondent No. 1 has paid permanent disability compensation in excess of 3% rated to the body as a whole. Consequently, we find that a remand is appropriate so that a determination can be made regarding the amount of permanent disability compensation already paid by respondent No. 1.
Accordingly, in light of our prior opinion and order, and consistent with the Supreme Court's decision, we find that respondent No. 1 is liable to the claimant for permanent disability compensation equal to 3% rated to the body as a whole. In addition, we find that respondent No. 2 is liable to the claimant for permanent disability compensation equal to 10% rated to the body as a whole. However, we also find that respondent No. 1 is entitled to a pro rata credit payable from respondent No. 2's 10% liability to the extent, if any, that respondent No. 1 has already paid the claimant permanent disability in excess of 3% rated to the body as a whole. This case is remanded to the administrative law judge with instructions to take such additional evidence as may be necessary to determine the credit, if any, payable to respondent No. 1 from respondent No. 2's liability to the claimant. We also order the administrative law judge to enter findings of fact and an opinion and order in accordance with his findings.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority finding that respondent no. 1 might be "entitled to a pro rata credit payable from the 10% liability now apportioned to respondent No. 2."
Respondent No. 1 accepted this claim as compensable and paid extensive benefits. However, when claimant sought permanent disability benefits, respondent decided to controvert compensability in its entirety. At the hearing, as is customary, respondent contended that if the claim was not compensable, respondent would not seek repayment from claimant but would accept a credit against any future liability it might incur. This is the way the Commission has always expressed the credit when a respondent has mistakenly paid benefits. Additionally, respondent no. 1 has never requested that it receive a credit payable out of the Second Injury Fund's (or any other third party's) liability to claimant. I would simply allow respondent a credit against any future liability it may incur.
I suppose the saving grace in handling the possible credit as the majority has chosen to do is that should claimant ever be entitled to any benefits (medical, indemnity, etc.) in the future, respondent no. 1 must immediately begin paying those benefits.
PAT WEST HUMPHREY, Commissioner