POM, Inc. v. Taylor

POM, INC., and Commercial Union Insurance v.
Carl Ray TAYLOR and Second Injury Fund

96-342                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 15, 1996


1.   Workers' compensation -- test used to determine whether Second
     Injury Fund must compensate injured worker. -- For the Second
     Injury Fund to be required to share liability for an injured
     worker, 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.

2.   Workers' compensation -- use of wage-loss evidence in
     determining Second Injury Fund Liability -- ability to work
     may be used to corroborate medical evidence. -- Where there is
     medical evidence that the two injuries combined to produce the
     current disability rating, contradictory evidence that the
     claimant was able to return to the same type of labor after
     his first injury is not determinative of the Second Injury
     Fund's liability; however, while the ability to work and lack
     of wage loss cannot be used alone to contradict the medical
     evidence, it may be used to corroborate it when combined with
     other evidence, e.g., medical testimony, that the claimant was
     cured after his first injury.

3.   Workers' compensation -- substantial evidence supported
     Commission's decision -- Second injury Fund not liable. -- The
     evidence from appellee's records that he was for all practical
     purposes "cured" after his first surgery, combined with the
     fact that he returned to work without limitations for some six
     years, was substantial evidence from which the Workers'
     Compensation Commission could have concluded that the Second
     Injury Fund was not responsible for any part of appellee's
     second claim; it was permissible for the Workers' Compensation
     Commission to consider appellee's lack of wage-loss disability
     as some corroboration of that medical testimony; when there is
     any substantial evidence to support the Commission's decision,
     the appellate court will affirm.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Bailey, Trimble, Capps, Lowe, Sellars, & Thomas, by:  Chester
C. Lowe, Jr., for appellant.
     David L. Pake, for appellees.

     David Newbern, Justice.  
     July 15, 1995   *ADVREP*SC4*


POM, INC., and                          96-342
COMMERCIAL UNION INSURANCE              Opinion Delivered:
          
          Appellant

     v.                                 Petition for Review from
                                        the Court of Appeals

CARL RAY TAYLOR and                     Affirmed  
SECOND INJURY FUND


                     David Newbern, Justice.
                                
     This is another in a series of workers' compensation cases
dealing with the proof necessary to establish Second Injury Fund
liability.  In 1989, Carl Ray Taylor suffered a compensable injury
requiring surgery to the L-4 -- L-5 area of his back while he was
employed by the appellant, POM, Inc.  He had suffered a work-
related injury in the same area of his back in 1983.  The second
injury also required surgery.  After his second injury he was
assigned a disability rating of 25%.
     Arkansas Code Ann.  11-9-525(a)(1) and (2) (Repl. 1996)
provides that the Second Injury Fund is established and designed to
insure that an employer employing a handicapped worker will not, in
the event such worker suffers an injury on the job, be held liable
for a greater disability or impairment than actually occurred while
the worker was in the employer's employment.  The Fund pays the
worker the difference between the employer's liability and the
balance of his disability or impairment which results from all
disabilities or impairments combined.  Mid-State Const. Co. v.
Second Injury Fund,  295 Ark. 1, 746 S.W.2d 539 (1988).
     Upon review of Mr. Taylor's second claim, the Workers'
Compensation Commission held the Second Injury Fund not liable as
Mr. Taylor had not suffered any wage loss from the first injury. 
The Court of Appeals, in an unpublished opinion, reversed the
Commission's decision, POM v. Taylor, CA 92-1250, (Ark.App.
December 1, 1993), and we affirmed in Second Injury Trust Fund v.
POM, Inc., 316 Ark. 796, 875 S.W.2d 832 (1994).  We held the term
"impairment" included results of work-related injuries as well as
non-work-related ones.  Accordingly, Mr. Taylor's case was remanded
to the Commission.  
     After reconsidering the claim, the Commission once again found
that the Second Injury Fund was not liable for any portion of Mr.
Taylor's benefits.  According to the Commission, Mr. Taylor's prior
disability or impairment did not combine with the second
compensable injury to produce his current disability status, and he
was rendered permanently and totally disabled as a result of his
second back injury and subsequent surgery.  The Court of Appeals,
in another unpublished opinion, agreed with the Commission.  POM v.
Taylor, CA 95-360 (Ark.App. February 28, 1996).  We granted POM's
petition for review.
     This case focuses on the third element of the test enunciated
in Mid-State Const. Co. v. Second Injury Fund, supra.  The test,
which is used to determine whether the Second Injury Fund must
share liability for compensating an injured worker, was stated as
follows:
          
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.

     Our most recent decision on this issue is Hawkins Const. Co.
v. Maxell, No. 96-298, (Sup.Ct. June 24, 1996), in which we held
that the Commission's finding with respect to the third element of
the test was not supported by substantial evidence.  In the Hawkins
Const. Co. case, the unrebutted medical testimony indicated that
the claimant's two injuries combined to produce his present
impairment rating.  The only evidence before the Commission
contrary to the medical testimony was that which showed the
claimant suffered no disability from his first injury that kept him
from continuing to do the same sort of labor he had done
previously.  In finding that such evidence could not overcome the
strong medical evidence, we stated, "(t)he fact that Mr. Maxell
suffered no wage-loss disability after (his first) injury has no
necessary bearing on the issue whether he suffered an impairment
from that injury which contributes to his present injury." 
(Emphasis added.)
     Our opinion in the Hawkins Const. Co. case, and certain cases
decided by our Court of Appeals, have helped define how "wage-loss
evidence" can be used in the Mid-State test.  These cases suggest
that where there is medical evidence that the two injuries combined
to produce the current disability rating, contradictory evidence
that the claimant was able to return to the same type of labor
after his first injury is not determinative of the Second Injury
Fund's liability.  However, while the ability to work and lack of
wage loss cannot be used alone to contradict the medical evidence,
it may be used to corroborate it when combined with other evidence,
e.g., medical testimony, that the claimant was cured after his
first injury.
     The correct approach is illustrated in Arkansas Highway and
Transp. Dept. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). 
The Court of Appeals recited medical evidence that indicated the
claimant's disability was attributable to his most recent injury,
rather than a combination of injuries.  In light of the medical
evidence, the Court indicated that the claimant's ability to work
was not the determining factor in the Commission's decision against
the liability of the Second Injury Fund.  

     The Commission did refer in its opinion to the claimant's
physical abilities and his lack of physical problems
subsequent to this prior back impairment but before his
compensable injury.  However, we cannot conclude that the
Commission made the lack of prior "disability" a determining
factor, and we do not think that the extent of one's physical
abilities prior to a compensable injury is necessarily
irrelevant in every case, or in this case, to the decision
whether the third prong of the test has been met.

     In Bussell v. Georgia Pacific Corporation, 48 Ark.App. 131,
891 S.W.2d 75 (1995), the Court of Appeals affirmed when the
Commission considered the claimant's ability to work, but only in
light of other evidence that indicated that the second injury alone
was responsible for the disability.  Specifically, the Commission
was influenced by the severity of the second accident and the
apparent success of the treatments for the first injury.    
     In this case, we find substantial evidence to support the
Commission's decision based on the medical evidence that was
introduced, as well as Mr. Taylor's ability to work, which tends to
corroborate that evidence.  In the Hawkins Const. Co. case there
was no evidence other than the ability to return to work and
absence of wage loss to show the lack of contribution of the first
injury to the ultimate condition of the worker.  On the other hand,
there was strong medical testimony showing that the first injury
created a physical condition which contributed to the ultimate
disability.  In this case, there is medical evidence that Mr.
Taylor obtained an excellent result from his first surgery and that
the original assessment of 10% disability to the body as a whole
was only pro forma.  It was permissible for the Workers'
Compensation Commission to consider Mr. Taylor's lack of wage-loss
disability as some corroboration of that medical testimony.
     The first surgery was performed by a Dr. Christian.  When
inquiry was made by the insurance company which handled Mr.
Taylor's first claim, the response came from Dr. Thompson, who had
been Dr. Christian's partner.  In the letter, Dr. Thompson noted,
"I have never seen Mr. Taylor, as far as my records indicate."  The
doctor noted that a disability rating was not previously assigned
because, when Dr. Christian released Mr. Taylor, no claim had been
filed.  Dr. Thompson interpreted Mr. Taylor's records and assigned
a 10% disability rating.  The doctor stated his rationale for
choosing a 10% rating as follows:

          It has been my practice throughout the years to
     consider a successfully operated ruptured disc results in a
     10% disability of the body as a whole, based on the fact
     that the patient no longer has a good shock absorber in his
     back as a result of the condition which was treated (not
     because of the surgery) and that as a result over the years,
     he will get some narrowing of the disc space with excess
     pressure on the facets, so he may get into trouble in the
     future.  It was on this basis that I have felt justified in
     recommending a 10% disability rating on a person, who for
     all practical purposes is "cured."

Dr. Thompson also wrote that Mr. Taylor's records indicate that "he
got an excellent result" from the surgery and "has been released to
full activity."   Dr. Haines, the surgeon who performed the second
surgery, stated in a post-operative report that Mr. Taylor had
previously undergone surgery in the same area of his back, and that
"Carl had done well, after surgery, until his time of reinjury."
     To be sure, Dr. Thompson's letter indicates that patients who
suffer injuries similar to Mr. Taylor's initial one typically lose
the "shock absorber" between their discs and for that reason are
likely to have trouble in the future.  That evidence, however,
served only to raise a factual issue which was for the Commission
to decide.  Buckeye Cotton Oil v. McCoy, 272 Ark. 272, 613 S.W.2d 590 (1981).  When there is any substantial evidence to support the
Commission's decision, we affirm.  Kuhn v. Majestic Hotel, 324 Ark
21, 918 S.W.2d 158 (1996).  In our view, notwithstanding Dr.
Thompson's general remarks, the evidence from Mr. Taylor's records
that he was for all practical purposes "cured" after his first
surgery combined with the fact that he returned to work without
limitations for some six years was substantial evidence from which
the Workers' Compensation Commission could have concluded the
Second Injury Fund was not responsible for any part of Mr. Taylor's
second claim. 
     Affirmed.
     Dudley, J., not participating.
     Jesson, C.J., and Glaze, J., dissent.*ADVREP*SC4-A*




POM, INC., and COMMERCIAL UNION
INSURANCE,
                    APPELLANT,

V.

CARL RAY TAYLOR and SECOND
INJURY FUND,
                    APPELLEES.



96-342

Opinion Delivered:  7-15-96







DISSENTING OPINION




                  TOM GLAZE, Associate Justice

     I respectfully dissent.  The court of appeals' unpublished
opinion on review here misstates what must be shown under
controlling case law to establish Second Injury Fund liability. 
See Mid-State Construction v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988); Hawkins Const. Co. v. Maxell, No. 96-298 (Sup.
Ct. June 24, 1996).  That unpublished opinion concludes as follows:
     Most importantly, there was no proof that Taylor's
     present disability status would not have resulted solely
     as the result of his present compensable injury,
     considered alone and of itself, i.e., that Taylor would
     not have been totally disabled as a result of this injury
     even if he had not suffered an earlier impairment. 
     (Emphasis added.)
     As this court has held in Mid-State and Hawkins, to establish
Second Injury Fund liability, the employee (1) must have suffered
a compensable injury at his present job, (2) must have had a prior
permanent partial disability or impairment and (3) that disability
or impairment must have combined with the recent compensable injury
to produce the current disability status.  Quite clearly, the proof
required under the third prong of the Mid-State test is different
than proving the negative and differently worded burden of proof
set out in the court of appeals decision above.  In my view, that
misstatement persists and has caused enough confusion for this
court to have reached the wrong result.
     The record reflects that Dr. S. B. Thompson gave Taylor a 10%
impairment rating following Taylor's first injury.  In doing so,
Thompson stated Taylor no longer had a good shock absorber in his
back and that, over the years, Taylor would have narrowing of the
disc space with excess pressure on the facets, so he may get into
trouble in the future.  Dr. Lynn Haines, who performed surgery on
Taylor after his second injury, said that he had received
information relating to Taylor's first injury and had concluded he
would not have given Taylor a blanket release to return to work. 
Nonetheless, Haines stated that, subsequent to Taylor's second
injury, there were significant neurologic deficits, along with
persistent pain and discomfort, which he felt would bring about an
alteration in the patient's limitations.  And finally, Jim
Spragins, a vocational expert, expressed his opinion that as a
result of both injuries and resulting surgeries, Taylor was
essentially unemployable.  
     As is readily obvious from the above expert testimony, proof
very clearly was presented to show Taylor's preexisting impairment
(10%) and subsequent injury combined to produce his current
permanent disability.  Haines and Spragins, together, established
that Taylor's earlier injury limitations had been altered by the
second injury so as to make Taylor unemployable.  
     The majority opinion suggests the foregoing evidence is
insignificant because "there is medical evidence Mr. Taylor was
cured after his first injury and that the original assessment of
10% disability to the body as a whole was only pro forma."  I
suggest the majority has improperly weighed or taken out-of-
context, Dr. Thompson's testimony to reach the pro forma
conclusion.  No such evidence was presented.  Thompson did suggest
that Taylor was cured for all practical purposes after the first
injury, but in making that comment added (1) Taylor no longer had
a good shock absorber in his back, (2) Taylor would get narrowing
of the disc space with pressure on the facets and (3) he may get
into trouble in the future.  In my view, a fair-minded person could
not read Thompson's evaluation of Taylor and conclude Taylor had
not been impaired by his first injury and surgery.  Yet, the
majority uses Thompson's remarks as substantial evidence to affirm
the Commission's decision.  
     As Thompson indicated, Taylor was predisposed to having
trouble in the future and Taylor did.  And that second injury (no
surprise to anyone) recurred at the same L-4 -5 level as before. 
I believe the majority's reliance on Thompson's "cured" remark is
out of context and is in no way substantial evidence to support the
Commission's decision to deny Second Injury Fund liability. 
Therefore, I would reverse the court of appeals' decision.
     JESSON, C.J., joins this dissent.