Opinion
CLAIM NO. E011930
OPINION FILED JULY 28, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by LAWRENCE FITTING, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 1 represented by JAMES ARNOLD, II, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on August 23, 1993.
The facts in this case are relatively undisputed. Claimant sustained a work-related injury on June 26, 1990. Claimant reached maximum medical improvement and was assessed an anatomical impairment rating of 13% to the body as a whole on December 23, 1991. It was stipulated that claimant had a pre-existing disability or impairment. As the result of the June 1990 injury, claimant was rendered permanently and totally disabled. All parties agree that claimant is permanently and totally disabled. The dispute is whether the permanent disability for the first 58.5 weeks (58.5 weeks is equal to the 13% permanent partial disability rating) should be paid at the permanent partial disability rate of $169.59 or the permanent total disability rate of $226.11 and from whom should the benefits come.
The threshold issue is at what rate should claimant's 13% be paid. In our opinion, A.C.A. § 11-9-525 clearly states that "the employee is to be fully protected. . ." Therefore, we agree with the Administrative Law Judge that claimant is entitled to receive the 13% paid at the permanent and total disability rate and that payment should begin subsequent to December 23, 1991, the day claimant reached maximum medical improvement. Thus, claimant is entitled to weekly benefits at the rate of $226.11 immediately following the end of healing, December 23, 1991, until his death or until he no longer is permanently and totally disabled.
It is well-established in Arkansas law that the respondent-employer is responsible for the portion of the disability that occurred as a result of the injury that occurred at their workplace. Here, it is clear that claimant sustained a 13% permanent disability rating as the result of his June 26, 1990 injury. Thirteen percent to the body as a whole equals 58.5 weeks. Therefore, respondent-employer is responsible for benefits during the first 58.5 weeks. However, the issue of first impression in this matter, is at what rate does the respondent-employer pay the assessed permanent disability rating and, if the respondent-employer is only liable for paying the rating at the permanent partial disability rate (in this case $169.59) then is the Second Injury Fund responsible for the difference between the permanent partial disability rate and the permanent and total rate?
At this point, our opinion differs from the Administrative Law Judge's. The Administrative Law Judge determined that respondent-employer only has to pay the permanent disability rating at the permanent partial rate of $169.59 and that the Second Injury Fund is liable for the difference between the permanent partial disability rate and the permanent and total rate. However, based upon the statutes pertaining to the Second Injury Fund, case law and public policy, the Administrative Law Judge erred. We find that the respondent-employer must pay the 13%, 58.5 weeks, at the permanent total amount, $226.11, and Second Injury Fund liability does not begin until the 58.5 weeks is paid out.
As stated, as of the end of the healing period claimant is permanently and totally disabled. Claimant does not become permanently and totally disabled 58.5 weeks after the end of the healing period. Granted, claimant was not rendered permanently and totally disabled solely as the result of the compensable injury on June 26, 1990. However,but for the June 26, 1990 injury claimant would not be permanently and totally disabled. Thus, the June 26, 1990 injury is the proverbial "straw that broke the camel's back." In our opinion, the injury that occurred at the respondent-employer's contributed substantially to claimant being rendered permanently and totally disabled. Additionally, apparently all parties agreed that claimant is 100% disabled. Thirteen percent of the 100% is the result of the June 26, 1990 injury and respondent-employer should be liable for that portion of the total disability.
Furthermore, the plain language of the statuterequires respondent-employer to be wholly responsible for their portion of the resulting disability. As A.C.A. § 11-9-525 (b)(3) states:
. . . the employer at the time of the last injury shall be liable only for the degree or percentage of disability or impairment which would have resulted from the last injury had there been no pre-existing disability or impairment.
Since an employer employing an impaired or disabled worker is to be liable only for the disability that occurs as the result of the injury that occurred during that employment, then it is consistent to hold that an employer should be liable for all the disability that occurs as the result of the injury that occurred during that employment. This rationale is the same as that which exonerates the Second Injury Fund when both injuries occur with the same employer. Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 794 S.W.2d 635 (1986).
Also, public policy mandates that the Second Injury Fund be protected. In Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 704 S.W.2d 635 (1986), quotesArkansas Workers' Compensation Commission v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950) stating "[t]he Second Injury Fund is a limited and restrictive fund. . . While workman's compensation acts are generally to be liberally construed in favor of the claimant the solvency of the special `Second Injury Fund' requires that the provision and requirements thereof be fully and strictly complied with. . . To hold otherwise would open this Fund to the point of insolvency and provide no benefit to those who do comply with these provisions and who are entitled to benefits thereunder." Expanding the Second Injury Fund responsibility by making it liable for the difference between the permanent partial disability rate and the permanent total rate as advocated by the Administrative Law Judge, subjects the Second Injury Fund to unnecessary and potentially devastating liability which is contrary to public policy.
Additionally, the Arkansas Supreme Court in Second Injury Fund v. Coleman, 16 Ark. App. 188 stated that the purpose of the Second Injury Fund is not to provide a "windfall" to those employers who hire handicapped people. Allowing the respondent-employer to pay a lesser amount and forcing the Second Injury Fund to pay the difference constitutes a "windfall" to the employer.
We agree with the Administrative Law Judge that a claimant is entitled to the payment of his anatomical impairment rating at the permanent and total amount. Thus, we affirm this portion of the Administrative Law Judge's opinion. However, the Administrative Law Judge erred in his interpretation of the Arkansas statutes, case law and public policy in determining that the respondent-employer must only pay the assessed permanent disability rating at the permanent partial disability amount and that the Second Injury Fund is liable for the difference. The plain language of the statute, case law and public policy dictate that respondent-employer is liable for the assessed permanent disability rating to be paid at the permanent and total amount, $226.11. Second Injury Fund liability is not incurred until the permanent disability rating is paid in full. Therefore, we modify the Administrative Law Judge's decision on this portion.
Claimant cross-appealed maintaining the Second Injury Fund controverted claimant's entitlement to permanent and total disability benefits. However, it is well-established in Arkansas law that the Second Injury Fund is entitled to investigate a claim. In this case, a relatively short time passed before the Second Injury Fund admitted liability and their responsibility of paying permanent total disability benefits beginning after the 58.5 weeks were paid out by the respondent-employer. In Buckner v. Sparks Regional Medical Ctr., a workers' compensation claim involving the Second Injury Fund, discovery lasted for over two and one-half years. The Court of Appeals stated:
Filing interrogatories and participating in the taking of depositions are methods of gathering information for investigation the Fund must make in any case in which it has been made a party. Otherwise, it has no knowledge about this matter. This investigation does not mean that the claim is controverted by the Fund.
Therefore, we affirm the Administrative Law Judge's decision that the Second Injury Fund did not controvert its liability for permanent and total disability benefits subsequent to the 13% paid by the respondent-employer.
We also agree that respondent-employer and Second Injury controverted claimant's entitlement to the maximum amount of benefits for the 58.5 weeks following claimant reaching maximum medical improvement. However, we reverse the Administrative Law Judge's determination that Second Injury Fund is liable for claimant's attorney's fees on the difference between the amounts. To be consistent, we are of the opinion that respondent-employer is responsible for the maximum statutory attorney's fees on the difference between the maximum weekly permanent partial disability benefits and the maximum weekly permanent total disability benefits for the initial 58.5 weeks. Furthermore, we agree with the Administrative Law Judge that claimant's attorney is entitled to an additional $500.00 attorney's fees for bona fide legal services which is to come from claimant's weekly indemnity benefits.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur with the majority's disposition of the issues concerning the weekly benefit rate claimant should receive for his permanent anatomical impairment and respondent no. 1's controversion related thereto. However, I must respectfully dissent from the majority's finding that the Second Injury Fund did not controvert claimant's entitlement to permanent and total disability benefits.
PAT WEST HUMPHREY, Commissioner