Second Injury Fund v. James River Corp.

920 S.W.2d 869, 53 Ark. App. 204, 1996 Ark. App. LEXIS 302
CourtCourt of Appeals of Arkansas
DecidedMay 8, 1996
DocketCA 95-278
StatusPublished
Cited by1 cases

This text of 920 S.W.2d 869 (Second Injury Fund v. James River Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Second Injury Fund v. James River Corp., 920 S.W.2d 869, 53 Ark. App. 204, 1996 Ark. App. LEXIS 302 (Ark. Ct. App. 1996).

Opinion

Melvin Mayfield, Judge.

The Second Injury Fund has appealed a decision of the Worker’s Compensation Commission which held it Hable for all of appellee-claimant’s benefits above a nine percent impairment rating to the body as a whole. Appellant argues that the Commission’s finding that the second and third requirements which trigger Second Injury Fund liability were met is not supported by substantial evidence.

The claimant Floyd Darter contended he was permanendy and totally disabled. At the time of the hearing he was fifty-six years old, had a fifth-grade education, and had been given training in the mifitary equivalent to an eighth-grade education but said he couldn’t spell very well, although he could read “some.” Mr. Darter had worked for James River Corporation for almost seventeen years, when, on July 27, 1991, an eighty-pound hoist fell several feet and hit him on the head, left shoulder, and arm. He was off work for four days, treated conservatively, and went back to work. However, because of recurring pain, on July 29, 1992, surgery was performed on his shoulder by Dr. Steven Heim. Mr. Darter was off work for eight or nine weeks, then released to return to work with a permanent physical impairment rating of nine percent to the body as a whole, and a twenty-five pound weight restriction. Darter continued to work until June 10, 1993, when he quit and has not worked since.

While working for appellee James River, Darter had also sustained work-related injuries to his shoulder and neck in 1989 and had surgery for bilateral carpal tunnel syndrome. In addition, he had numerous non-work-related physical problems. While in the Army in 1959 Darter injured his lower back lifting a pot of potatoes, and he has had back problems which have continued to worsen ever since. He has been diagnosed with chronic obstructive pulmonary disease and degenerative disc disease in the cervical and lumbar spine. He also has severe hypertension that is difficult to control, tendinitis of the left shoulder, peripheral vascular disease with vascular insufficiency to the right leg which causes numbness and makes it difficult for him to stand or walk, and shortness of breath as a result of over forty years of smoking two packs of cigarettes a day.

Dr. L.R. Darden stated that Darter was totally disabled, and the administrative law judge agreed. The law judge also held that the appellee employer was only responsible for Darter’s nine percent physical impairment and that the Second Injury Fund was liable for the remainder of his disability. The Commission affirmed and adopted the opinion of the administrative law judge, and it is this decision that has been appealed.

In Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), the Arkansas Supreme Court set out the requirements for Second Injury Fund liability:

It is clear that liability of the Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury at his 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.

295 Ark at 5, 746 S.W.2d at 540. It is clear that the first hurdle was satisfied by the July 1991 injury. But the appellant Second Injury Fund argues that there is not sufficient evidence to support the Commission’s finding that hurdles two and three have been met.

We have consistently said that the findings of the Commission must be upheld unless there is no substantial evidence to support them and that we will reverse only if we are convinced that fair-minded persons with the same facts before them could not have reached the same conclusion arrived at by the Commission. Price v. Little Rock Packaging Co., 42 Ark. App. 238, 856 S.W.2d 317 (1993). And in the very recent case of Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996), the Arkansas Supreme Court, citing a previous case of that court, said that “substantial evidence exists if reasonable minds could have reached the same conclusion” as that reached by the Commission and that reversal is proper only if “fair-minded persons considering the same facts could not have reached the same conclusion.” Therefore, we examine the Commission’s findings in the instant case in keeping with the standards set out in the above cases.

As to the second hurdle set out in the Mid-State Construction case, the Commission found that Darter had high blood pressure, back problems, chronic obstructive pulmonary disease, shoulder problems, bilateral carpal tunnel syndrome, and vascular problems. Appellant contends, however, that these conditions do not meet the requirements of the second hurdle under Mid-State because they were either latent, arose after the date of injury, were injuries sustained while in the employment of James River, or were not substantial enough to constitute a disability or impairment. We agree.

Arkansas Code Annotated § 11-9-525(a) (3) (1987) provides:

It is intended that latent conditions which are not known to the employee or employer not be considered previous disabilities or impairments which would give rise to a claim against the Second Injury Fund.

In the case of Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992), we reviewed cases by both this court and our supreme court which had held that “latent” means that which is present without showing itself; hidden, concealed, or dormant. And we said that under the above statute: “An injury is latent until its substantial character becomes known or until the employee knows or should be reasonably expected to be aware of the full extent and nature of his injury.” 40 Ark. App. 6-7, 841 S.W.2d at 162.

The evidence in this case clearly shows that Darter’s chronic obstructive pulmonary disease (COPD) was not discovered until December 18, 1992, when a chest x-ray was made. This was more than a year after his July 1991 injury. The x-ray report states that no old films are available, but there is “apparent hyperinflation of the lungs suggesting COPD.” However, a lung biopsy was done on August 4, 1989, which revealed only a benign mass, and Darter was returned to work with no restrictions. Dr. Darden’s progress notes made in 1990 state that Darter is “a little short of breath and he coughs and his throat is irritated and his head feels stopped up.” However, the report also states that “his lungs don’t sound stopped up.” Although the doctor advised Darter to stop smoking, Dr. Larry Travis noted on June 24, 1991, that Darter was still smoking. Dr. Travis also found that Darter had gastritis and duodenitis but that there was “no evidence of ulceration” and that “the esophagus is normal.” The doctor also wrote on his progress record “no significant abnormalities noted other than he is very agitated and nervous.” And he gave Darter a prescription for Tagamet with one refill.

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920 S.W.2d 869, 53 Ark. App. 204, 1996 Ark. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/second-injury-fund-v-james-river-corp-arkctapp-1996.