Workers' compensation -- Second Injury Fund liability; current disability arose

SECOND INJURY FUND v. JAMES RIVER
CORPORATION,Employer, Aetna Insurance
Company, Carrier and Floyd G. Darter

CA 95-278                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                  Opinion delivered May 8, 1996


1.   Workers' compensation -- requirements for second injury fund
     liability. -- Liability of the Second Injury 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.

2.   Workers' compensation -- factors on review of Commission's
     decision -- substantial evidence discussed. -- The findings of
     the Commission must be upheld unless there is no substantial
     evidence to support them and the appellate court will reverse
     only if convinced that fair-minded persons with the same facts
     before them could not have reached the same conclusion arrived
     at by the Commission; substantial evidence exists if
     reasonable minds could have reached the same conclusion as
     that reached by the Commission and reversal is proper only if
     "fair-minded persons considering the same facts could not have
     reached the same conclusion."  

3.   Workers' compensation -- "latent" as used in Ark. Code Ann.
     11-9-525(a)(3) -- when an injury is latent. --  "Latent" as
     used in Ark. Code Ann.  11-9-525(a)(3)(1987) means that which
     is present without showing itself; hidden, concealed, or
     dormant; 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.

4.   Workers' compensation -- pulmonary disease not discovered
     until after appellee's injury -- condition did not qualify as
     a prior disability. -- Where the evidence clearly showed that
     the employee's chronic obstructive pulmonary disease was not
     discovered until December 18, 1992, there was not substantial
     evidence to support a finding that the "substantial character"
     or the "full extent and nature" of his pulmonary disease was
     known when he was injured in July of 1991; therefore, under
     the law his condition was latent and it could not qualify as
     a prior disability or impairment which would trigger Second
     Injury Fund liability.  

5.   Workers' compensation -- vascular problems not diagnosed or
     treated prior to injury -- condition was latent. -- Where the
     employee's vascular problems were not diagnosed or treated
     until July of 1993, well after his injury in July of 1991, and
     there was no evidence that either the employee or his employer
     knew of this condition until after the 1991 injury, the
     evidence fell short of showing that the employee was aware þ
     or should have been þ of the substantial character or the full
     extent and nature of his vascular problem until it was
     diagnosed in July of 1993; the substantial evidence shows this
     was a latent condition.    

6.   Workers' compensation -- Second Injury Fund not liable for
     injuries sustained during employment by one employer --
     conditions did not support Second Injury Fund Liability. -- 
     The Second Injury Fund is not liable for injuries sustained
     during the employment by one employer; here the employee's
     1987 shoulder injury, which was surgically repaired in 1992;
     his bilateral carpal tunnel syndrome, which was surgically
     corrected in 1991; and his right shoulder and arm tendinitis
     were all sustained while he was working for the appellee
     employer, and even though these conditions became worse after
     the hoist fell on the employee in July of 1991 they did not
     support Second Injury Fund liability.  

7.   Workers' compensation -- impairment must be substantial in
     nature to qualify claimant as handicapped under the statute. -
     -  It is the substantial nature of the impairment which is
     emphasized, and the elements of compensability, none of which
     may have existed as to the particular claimant, merely assist
     the fact finder in his determination as to whether the former
     condition was sufficient in degree to constitute an impairment
     qualifying the claimant as one of the "handicapped" for whose
     benefits the statute was enacted.  

8.   Workers' compensation -- when Commission's decision will be
     reversed -- substantial nature of employee's physical
     condition insufficient to support finding that he was
     handicapped. -- On appeal the evidence is viewed in the light
     most favorable to the decision of the Commission, and the
     court will reverse the Commission when convinced that fair-
     minded persons with the same facts before them could not have
     reached the same conclusion arrived at by the Commission; when
     the "substantial nature" of the employee's overall physical
     condition was considered, there was not substantial evidence
     to support a finding that he was "handicapped" prior to his
     1991 injury. 

9.   Workers' compensation -- pre-existing conditions not shown to
     combine with present injury to cause current disability status
     -- physical ability to work before work-related injury may be
     considered. -- There was no substantial evidence to support
     the Commission's finding that the employee's pre-existing
     conditions and his 1991 injury combined to cause his current
     disability status; before his 1991 injury the employee worked
     long hours, sometimes as long as twelve to sixteen hours per
     day, sometimes seven days per week, and always did his job,
     moreover, the coordinator testified that he had never had to
     modify a job so that the employee could do it; in considering
     whether an employee's prior impairment combined with his last
     work-related injury to produce his current disability status,
     it is proper to consider his physical ability to work before
     his work-related injury; here, even after his 1991 injury, the
     employee continued to work for almost two years, before he
     quit. 

10.  Workers' compensation -- current disability arose from
     combination of latent conditions, prior injuries, and current
     injury -- Second Injury Fund not libel for any compensation to
     which employee entitled. -- The Commission found that the
     employee had high blood pressure, back problems, chronic
     obstructive pulmonary disease, shoulder problems, bilateral
     carpal tunnel syndrome, and vascular problems; however, these
     conditions did not meet the requirements for Second Injury
     Fund liability because they were either latent, arose after
     the date of injury, were injuries sustained while in the
     employment of his current employer, or were not substantial
     enough to constitute a disability or impairment; the
     Commission's decision was not supported by substantial
     evidence; therefore, the Second Injury Fund was not liable for
     any compensation to which the employee was entitled.  


     Appeal from Arkansas Workers' Compensation Commission;
reversed and remanded.
     Mark E. Lang, for appellant.
     Bethell, Callaway, Robertson, Beasley, & Cowan, by:  John R.
Beasley, for appellees James River Corp. and Aetna Ins. Co.
     Walker Law Firm, by:  Eddie H. Walker, Jr., William J. Kropp,
III, and R. Scott Zuerker, for appellee Floyd G. Darter.
     
     Melvin Mayfield, Judge.*ADVREP*CA5*
                           DIVISION I



                                        CA 95-278


                                             MAY 8, 1996

SECOND INJURY FUND                 APPEAL FROM THE ARKANSAS
                                   WORKERS' COMPENSATION
               APPELLANT           COMMISSION
                                   
VS.                                     

JAMES RIVER CORPORATION,           REVERSED AND REMANDED
Employer, AETNA INSURANCE
COMPANY, Carrier and 
FLOYD G. DARTER

               APPELLEES



                     Melvin Mayfield, Judge.


     The Second Injury Fund has appealed a decision of the Worker's
Compensation Commission which held it liable 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 permanently 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 military 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,
___ S.W.2d ___ (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.  
     We do not believe there is substantial evidence to support a
finding that the "substantial character" or the "full extent and
nature" of Darter's pulmonary disease was known when he was injured
in July of 1991.  Therefore, under the law his condition was latent
at that time and it cannot qualify as a prior disability or
impairment which would trigger Second Injury Fund liability in this
case.  
     Also, Darter's vascular problems were not diagnosed or treated
until after his injury in July of 1991.  It was not until July 19,
1993, that Dr. Rowland P. Vernon of the Holt Krock Clinic reported:
     [Darter] had a peripheral vascular lab exam which
     suggests that he has bilateral femoral popliteal segment
     disease, worse on the right than the left by pulse wave
     form studies.  And he has as well abnormal femoral pulse
     wave forms.

     On exam, the patient has no femoral pulses to speak of. 
     He has no pedal pulses.  He has bruits all over his
     abdomen.  He has been recently unable to work for some
     time.

     It would be my impression that he needs to stop smoking
     and that he might reasonably be offered arteriography and
     possible aortoiliac bypass.  He is indeed functionally
     impotent at this point and has been for some time. . . .

There is no evidence that Darter or his employer knew of this
condition until after the 1991 injury.  Darter stopped working on
June 10, 1993.  He was referred to Dr. Michael Standefer who
examined him on June 29, 1993.  Dr. Standefer's record of that
examination made no mention of a vascular problem or complaint. 
However, Dr. Standefer referred Darter to Dr. James S. Deneke and
his report of September 28, 1993, states that Darter said his hips
hurt "with walking even a block."  Dr. Deneke also reported that
Darter had a history of "vascular insufficiency to the right leg." 
This evidence falls short of showing that Darter was aware þ or
should have been þ of the substantial character or the full extent
and nature of his vascular problem until it was diagnosed by Dr.
Vernon in July of 1993.  
     The employer, James River Corporation, argues that Dr. Larry
Travis noted in his record of June 24, 1991, that Darter had
peripheral neuropathy in his feet.  But, as we have pointed out,
that record also stated that Darter had "no significant
abnormalities" other than he was "agitated and nervous."  The
notation on the record made by Dr. Travis indicates that his
finding as to Darter's feet was based on "swelling."  Obviously
this could result from working all day while standing on his feet,
or from some other cause, and does not show that Darter knew or
should reasonably be expected to aware of the substantial character
or full extent and nature of the vascular problem that was found in
1993.  Thus, we think that the substantial evidence shows this was
a latent condition.  
     Also, the Second Injury Fund is not liable for injuries
sustained during the employment by one employer.  Riceland Foods,
Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986);
McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429
(1986); Ark. Code Ann.  11-9-525(a)(1) (1987).  Darter's 1987
shoulder injury, which was surgically repaired in 1992; his
bilateral carpal tunnel syndrome, which was surgically corrected in
1991; and his right shoulder and arm tendinitis were all sustained
while Darter was working for James River Corporation, and even
though Darter said these conditions became worse after the hoist
fell on him in July of 1991 they cannot support Second Injury Fund
liability.  See Chamberlain Group v. Rios, 45 Ark. App. 145, 871 S.W.2d 595 (1994).  
     Darter's back condition and his high blood pressure were not
sustained during Darter's employment with James River or discovered
after the 1991 injury; however, in Mid-State Construction, supra,
the court said:
     It is the substantial nature of the impairment which is
     emphasized, and the elements of compensability, none of
     which may have existed as to the particular claimant,
     merely assist the fact finder in his determination as to
     whether the former condition was sufficient in degree to
     constitute an impairment qualifying the claimant as one
     of the "handicapped" for whose benefits the statute was
     enacted.  

295 Ark. at 6, 746 S.W.2d  at 540 (emphasis added).

     Although we view the evidence in the light most favorable to
the decision of the Commission, that standard neither insulates the
Commission from judicial review nor renders our function in these
cases meaningless, and we will reverse the Commission when 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.  Morgan v. Desha County Tax Assessor's Office, 45 Ark.
95, 871 S.W.2d 429 (1994).  When the "substantial nature" of
Darter's overall physical condition is considered, we do not think
there is substantial evidence to support a finding that he was
"handicapped" prior to his 1991 injury.  There is evidence that at
the time of his 1991 injury Darter was accustomed to working up to
twelve hours per day and usually more than forty hours per week; he
had no medical restrictions; and he consistently took physically
strenuous jobs.   
     The appellant also contends that the third hurdle of Mid-State
Construction has not been met in this case, i.e., that there is no
substantial evidence to support the Commission's finding that
Darter's pre-existing conditions and his 1991 injury combined to
cause his current disability status.  Again we agree.  We note that
Darter testified that he purposely took more physically demanding
jobs because they paid more and did not normally include any paper
work.  Darter also testified that before his 1991 injury he worked
long hours, sometimes as long as twelve to sixteen hours per day,
and sometimes seven days per week.  The safety coordinator for
James River confirmed that Darter always did his job prior to his
1991 injury.  Moreover, the coordinator testified that he had
observed Darter working on the job for a number of years, and he
never had to modify a job so that Darter could do it.  We said in
Arkansas Highway and Transportation Department v. McWilliams, 41
Ark. App. 1, 6, 846 S.W.2d 670, 673-74 (1993), that in considering
whether an employee's prior impairment combined with his last work-
related injury to produce his current disability status, it was
proper to consider his physical ability to work before his work-
related injury.  We think it also important that even after his
1991 injury, Darter continued to work for almost two years, before
he quit.  And it is not disputed that he was totally and
permanently disabled after he quit.  
     Under the evidence in this case, we think fair-minded persons
would find that Darter's current disability arises from a
combination of his latent conditions, his prior injuries sustained
while working for James River, and his 1991 injury.  In this 
connection we quote the following from the reply brief of the
Second Injury Fund:  
          The Appellee/Claimant in its brief makes a puzzling
     argument.  Claimant's argument concerns the statement in
     the Fund's brief that he worked 12-16 hour days prior to
     his injury.  Claimant states that this is not a
     meritorious argument by the Fund, as he is not required
     to show that any prior conditions caused any loss of
     earning capacity.  The puzzling part of this is that the
     Fund has never argued that Claimant needed to show a loss
     of earning capacity, nor does its brief even contain the
     words "earning capacity."  

          The Fund's argument is that the Appellee/Claimant,
     at the time of his injury, was capable of working long
     hours at heavy labor.  As such, he was not one of the 
     "handicapped" for whose benefit the statute was enacted. 
     . . . Neither of the Appellees directly address this
     position.  

     We find that the Commission's decision is not supported by
substantial evidence; therefore, the Second Injury Fund is not
liable for any compensation to which the employee Darter is
entitled.  
     Reversed and remanded.  
     Jennings, C.J., and Neal, J., agree.