Second Injury Fund v. Furman

SECOND INJURY FUND v. Ronnie FURMAN

CA 97-906                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 11, 1998


1.   Workers' compensation -- factors on review -- substantial
     evidence defined. -- When reviewing decisions from the
     Workers' Compensation Commission, the appellate court views
     the evidence and all reasonable inferences deducible therefrom
     in the light most favorable to the Commission's findings and
     affirms if they are supported by substantial evidence;
     substantial evidence is that which a reasonable person might
     accept as adequate to support a conclusion; a decision by the
     Workers' Compensation Commission should not be reversed unless
     it is clear that fair-minded persons could not have reached
     the same conclusions if presented with the same facts. 

2.   Workers' compensation -- Second Injury Fund -- when subjected
     to liability. -- The guidelines for Second Injury Fund
     liability, codified at Ark. Code Ann.  11-9-525(3) and (4)
     (Repl. 1996), state that the Second Injury Fund may be
     subjected to liability if a claimant suffers from a permanent
     impairment, whether or not the impairment is the result of a
     compensable injury; a preexisting impairment can either be
     work related or non-work related and need not include wage
     loss.  

3.   Workers' compensation -- Second Injury Fund -- new legislation
     had no effect on liability guidelines -- impairment gave rise
     to potential Fund liability. -- Although the new Workers'
     Compensation Act is to be construed strictly, none of its
     provisions changed the guidelines for Second Injury Fund
     liability; where appellee suffered a 10% anatomical impairment
     as a result of his first injury, and his employer compensated
     him for this impairment, it was immaterial whether or not the
     impairment resulted in any wage-loss disability; the
     Commission was correct in concluding that the impairment gave
     rise to potential Second Injury Fund liability. 

4.   Workers' compensation -- Commission's error in concluding that
     appellee suffered a 5% wage-loss disability was harmless. --
     Although the Commission erred in concluding that appellee
     suffered a 5% wage-loss disability because he returned to work
     at the same or greater wages than he had been earning prior to
     the first injury, such error was harmless because of the
     appellate court's holding that it was immaterial whether the
     first injury was a work-related impairment or involved a wage-
     loss disability; the permanent impairment caused by the first
     injury was sufficient to trigger Second Injury Fund liability
     after the second injury suffered by appellee.

5.   Workers' compensation -- finding that two injuries combined to
     produce appellee's disability supported by substantial
     evidence. -- The appellate court found substantial evidence to
     support the Commission's finding that the two injuries
     combined to produce appellee's disability and that his
     disability was greater than that which would have been caused
     by the second injury alone.  

6.   Workers' compensation -- appellee did not waive rehabilitation
     -- appellee entitled to disability benefits. -- Where there
     was no evidence that either the appellant or appellee's
     employer at any time suggested a plan of rehabilitation, but
     appellee affirmatively indicated that he wanted to pursue
     rehabilitation and did not waive his right to the same, and at
     the hearing, he presented a plan for attending community
     college and a list of the expected finances to fund such a
     program, no error was found in the Commission's refusal to
     deny disability benefits based on the appellant's contention
     that appellee waived rehabilitation; Ark. Code Ann.  11-9-
     505(b)(4) (Repl. 1996) does not stand for the proposition that
     every claimant must formally file for rehabilitation with the
     Commission or waive entitlement to disability benefits; the
     Commission is not required to consider a claimant's failure to
     request rehabilitation in determining the degree of his
     disability.

7.   Workers' compensation -- vocational-rehabilitation benefits
     argument moot -- liability limited to wage-loss disability
     award. -- The appellant's argument that the Commission erred
     in finding that the fund could pay for vocational-
     rehabilitation benefits was moot; the Fund was not ordered to
     pay for any rehabilitation program, its liability was limited
     to a wage-loss disability award; therefore, the Commission's
     mention of potential Fund liability as to a hypothetical
     rehabilitation program was of no consequence.
     

     Appeal from the Workers' Compensation Commission; affirmed.
     David L. Pake, for appellant.
     Hardin, Jesson, Dawson & Terry, by:  J. Rodney Mills and
Robert T. Dawson, for appellee Simmons Industries.

     John B. Robbins, Chief Judge.
     Appellee Ronnie Furman sustained a work-related injury to his
back while working for Rymer Foods in July 1992.  As a result of
this injury, Mr. Furman underwent surgery and Rymer paid benefits
in accordance with a 10% anatomical impairment rating.  Mr. Furman
returned to work in the same position that he held prior to the
injury, and continued to do so after Rymer was bought by Simmons
Industries on January 1, 1994.  On May 18, 1994, Mr. Furman was
working for Simmons and sustained a second back injury.  After
again undergoing surgery, Mr. Furman returned to work on a part-
time basis for about a month, but has not worked since January
1995.  As a result of the second back injury, Mr. Furman was
assigned an additional 2% anatomical rating, for which Simmons has
compensated him.
     Mr. Furman filed a claim with the Workers' Compensation
Commission, contending that his injuries had rendered him
permanently and totally disabled.  A hearing was held to determine,
among other things, the extent of any responsibility of appellant
Second Injury Fund.  After the hearing, the Commission found
that the original back injury resulted in a 5% wage loss.  The
Commission also found that, after the second injury, Mr. Furman
was not totally disabled but rather suffered an additional wage
loss of 18%.  The Commission then ordered the Second Injury Fund to
compensate Mr. Furman for 18% wage loss.  Second Injury Fund now
appeals this award.
     For reversal, the appellant raises seven arguments.  It
first contends that the Commission erred in characterizing
Mr. Furman's first back injury as an "impairment" rather than a
"disability."  Next, Second Injury Fund argues that the Commission
erred in concluding that Mr. Furman's first injury resulted in a
5% wage loss.  The appellant's third and fourth arguments are that
Mr. Furman failed to establish that the two injuries combined to
produce the resulting disability and that substantial evidence does
not support the finding that the second injury  would not have
caused the entire disability alone and of itself.  The appellant
also argues that the Commission erred in finding that Mr. Furman
did not waive vocational rehabilitation and further asserts
that the Commission misquoted Ark. Code Ann.  11-9-505(b)(3)
(Repl. 1996) with regard to an employee's waiver of vocational
rehabilitation.  Finally, Second Injury Fund contends that the
Commission erred as a matter of law in finding that the Fund could
pay for vocational rehabilitation benefits.  We find no error and
affirm.
     When reviewing decisions from the Workers' Compensation
Commission, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the Commission's
findings and affirm if supported by substantial evidence.  Welch's
Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283
(1992).  Substantial evidence is that which a reasonable person
might accept as adequate to support a conclusion.  City of Fort
Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992).  A
decision by the Workers' Compensation Commission should not be
reversed unless it is clear that fair-minded persons could not have
reached the same conclusions if presented with the same facts. 
Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403
(1983).
     At the hearing before the Commission, Mr. Furman testified on
his own behalf.  He stated that, between 1990 and the date of his
second injury, he had been employed as a production manager.  His
duties included supervising and training employees as well as
helping on the production line when needed.  Mr. Furman indicated
that on some occasions he was required to lift as much as seventy
pounds.
     In July 1992, Mr. Furman suffered a back injury that resulted
in surgery performed by Dr. Michael Standefer in January 1993. 
Mr. Furman returned to his supervisory position in March 1993 and
was able to earn the same or more money than he had been making
prior to the injury.  However, he testified that as a result of
the first injury, bending over became more strenuous and he was no
longer able to lift seventy pounds.
     On May 18, 1994, Mr. Furman "was carrying a tray of chicken
and stumbled over a tub stand and twisted and hurt [his] back
again."  This injury resulted in a subsequent surgery, and
according to Mr. Furman, he has been unable to return to full duty
since that time.  He testified that he now has almost constant pain
in his back and that he can no longer perform his job because of
the standing and walking requirements.  He admitted that he might
be able to perform a job involving minimal physical demands, but
stated that he has applied for these types of jobs with no success. 
Mr. Furman testified that he checked with Arkansas Rehabilitation
Services about vocational training, but that "I did not get a
follow up on my inquiry."
     The pertinent medical evidence in this case was provided in
large part by the medical reports of Dr. Standefer.  After the
initial surgery, Dr. Standefer released Mr. Furman to work with
the requirements that he lift no more than twenty-five pounds and
avoid repeated bending.  After the second injury, Dr. Standefer
performed a myelogram and CT scan that provided findings consistent
with a herniated disc, and he determined that another surgery
would be necessary.  Several months later, Dr. Standefer assigned
an additional 2% impairment rating that was attributed to the
second injury, and he gave the following opinion with regard to
Mr. Furman's employment possibilities:
     In the future it will be important for him to avoid heavy
     lifting and repeated bending as in the past.  I am
     inclined to think that resumption of his previous
     occupation will not be feasible.  He should investigate
     alternative employment opportunities or
     vocational/technological school or resumption of higher
     education in the form of college.
     Second Injury Fund's first assignment of error is that the
Commission erred in finding that Mr. Furman's first injury was an
"impairment" rather than a "disability."  It points out that, under
Act 796 of 1993, the legislature has mandated strict construction
of our workers' compensation laws.  The Fund then submits that,
under the new Act, an injury occurring on the job cannot result in
an "impairment," but rather must be categorized as a "disability"
that results in wage loss.  Hence, argues the Fund, Mr. Furman did
not suffer an impairment when he sustained a compensable back
injury while working in July 1992.
     The appellant's first argument is without merit.  The new
Workers' Compensation Act did not change the following guidelines
for Second Injury Fund liability, which are now codified at Ark.
Code Ann.  11-9-525(3) and (4) (Repl. 1996):
       (3)  If any employee who has a permanent partial
     disability or impairment, whether from compensable injury
     or otherwise, receives a subsequent compensable injury
     resulting in additional permanent partial disability or
     impairment so that the degree or percentage of disability
     or impairment caused by the combined disabilities or
     impairments is greater than that which would have
     resulted from the last injury, considered alone and of
     itself, and if the employee is entitled to receive
     compensation on the basis of combined disabilities or
     impairments, then 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 preexisting
     disability or impairment.
       (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 Workers' Compensation
     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 fund provided for in  11-9-301.
Pursuant to the above provisions, the Second Injury Fund may be
subjected to liability if a claimant suffers from a permanent
impairment, whether or not the impairment is the result of a
compensable injury.  In Second Injury Trust Fund v. POM, Inc., 316
Ark. 796, 875 S.W.2d 832 (1994), a case decided under prior law,
our supreme court held that a preexisting impairment can either be
work related or non-work related, and need not include wage loss. 
In that case, Second Injury Fund argued, as it does here, that in
order to invoke fund liability, it is necessary to show that the
employee suffered a loss in wage-earning capacity where the initial
injury was work related, because "impairment" is necessarily non-
work related.  However, this argument was rejected.
     In the instant case the appellant contends that, as a result
of the new legislation, the result in Second Injury Trust Fund v.
POM, Inc., supra, is no longer controlling.  We disagree.  Although
the new Act is to be construed strictly, none of its provisions
give rise to a different result in the disposition of this issue. 
Mr. Furman suffered a 10% anatomical impairment as a result of his
first injury, and his employer compensated him for this impairment. 
It is immaterial whether or not the impairment resulted in any
wage-loss disability.  In either case, the Commission was correct
in concluding that the impairment gave rise to potential Second
Injury Fund liability.  This would have been the proper ruling
under prior law, and it continues to be the proper ruling under the
new Act.
     The appellant next contends that, because Mr. Furman did
not suffer an impairment as the result of his first injury, any
liability on its part would have to be based on a finding that
the first injury caused a disability.  It argues further that the
Commission erred in concluding that Mr. Furman suffered a 5% wage-
loss disability because he returned to work at the same or greater
wages than he had been earning prior to the first injury.  The Fund
argues that because Mr. Furman suffered no initial impairment
or disability, it could not be held liable under the relevant
provisions of Ark. Code Ann.  11-9-525 (Repl. 1996).
     We agree with appellant that the Commission erred in assigning
a 5% wage-loss disability to the first injury.  Mr. Furman had
returned to work at the same or greater wage level than he had been
earning prior to the injury.  However, such error is harmless
because of our holding that it is immaterial whether the first
injury was a work-related impairment or involved a wage-loss
disability.  The permanent impairment caused by the first injury
was sufficient to trigger Second Injury Fund liability after the
second injury suffered by Mr. Furman.
     The appellant's third and fourth arguments are interrelated. 
It asserts that the Commission erred in finding that the two
injuries combined to cause Mr. Furman's disability, and that the
evidence showed that his disability was no greater than that which
would have been caused by the second injury alone.  The Fund points
out that, after the first injury, Mr. Furman returned to the same
job and was able to work full time.  He was also able to continue
his hobbies, including golf and bowling.  It was not until after
the second injury that he was forced to quit his employment and
discontinue his hobbies.  Based on this evidence, Second Injury
Fund submits that we can only reasonably conclude that the second
injury was by itself responsible for Mr. Furman's resulting
disability.
     We find substantial evidence to support the Commission's
finding that the two injuries combined to produce Mr. Furman's
disability.  An MRI conducted after the initial injury revealed
disk bulges along with a herniated disk, and these conditions
required surgery.  After returning to work, Mr. Furman worked
at the same or greater wages but was given restrictions on his
lifting and bending.  The second injury occurred in precisely the
same L5-S1, left location, and he again underwent surgery.  After
the second surgery, Dr. Standefer assigned a 12% anatomical
impairment rating, which was based on Mr. Furman's "two previous
operations."  This represents only a 2% increase from the 10%
anatomical rating that had been assigned as a result of the first
injury alone.  We find that there is substantial evidence to
support the Commission's determination that the two injuries
combined to cause Mr. Furman's disability, and that his disability
was greater than that which would have been caused by the second
injury alone.
     Second Injury Fund next contends that the Commission erred in
finding that Mr. Furman did not waive vocational rehabilitation,
and that it misquoted Ark. Code Ann.  11-9-505(b)(3) (Repl. 1996),
which provides:
       (3)  The employee shall not be required to enter any
     program of vocational rehabilitation against his consent;
     however, no employee who waives rehabilitation or refuses
     to participate in or cooperate for reasonable cause
     with either an offered program of rehabilitation or job
     placement assistance shall be entitled to permanent
     partial disability benefits in excess of the percentage
     of permanent physical impairment established by objective
     physical findings.
The appellant essentially contends that Mr. Furman had a duty
to pursue rehabilitation, and that he failed to do so.  It
asserts that, at the time of the hearing, Mr. Furman was not
working and had no plans to seek employment in the future.  Nor
did he file with the Commission any plan for rehabilitation.  The
appellant submits that this constituted a waiver of any right
to rehabilitation and thus relieves it of any liability pursuant
to the above statutory provision.  The Fund notes that, in its
opinion, the Commission misquoted the above provision when it
stated "no employee who waives an offer of rehabilitation" shall
be entitled to disability benefits in excess of his permanent
impairment (emphasis added).  The appellant argues that the
Commission erroneously concluded that it was the responsibility of
the Fund to offer rehabilitation, rather than the responsibility of
Mr. Furman to seek it.
     Notwithstanding the Commission's failure to accurately
quote the pertinent statute, we find no error in its decision
that Mr. Furman has not waived rehabilitation and is entitled to
disability benefits.  We acknowledge that Ark. Code Ann.  11-9-
505(b)(4) (Repl. 1996) provides that, if a claimant elects to apply
for rehabilitation at the expense of his employer, he must file
such election with the Commission prior to a determination of
disability benefits.  However, this provision does not stand
for the proposition that every claimant must formally file for
rehabilitation with the Commission or waive entitlement to
disability benefits.  In the instant case, there was no evidence
that either the appellant or Mr. Furman's employer at any time
suggested a plan of rehabilitation.  However, in answering his
interrogatories, Mr. Furman affirmatively indicated that he wanted
to pursue rehabilitation and did not waive his right to the same. 
Then, at the hearing, he presented a plan for attending Westark
Community College to pursue a degree in hotel and restaurant
management, and he provided a list of the expected finances to
fund such a program.  On these facts, we find no error in the
Commission's refusal to deny disability benefits based on the
appellant's contention that Mr. Furman waived rehabilitation.  In
Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162
(1987), we held that the Commission is not required to consider a
claimant's failure to request rehabilitation in determining the
degree of his disability.
     The appellant's remaining argument is that the Commission
erred in finding that the fund could pay for vocational
rehabilitation benefits.  It cites Second Injury Fund v. Robison,
supra.  In that case, we indicated that if an employee's request
for a rehabilitation program is granted, the employer is
responsible for providing the vocational rehabilitation.  The
appellant submits that this fact has not been changed by any
provision in the new Act.
     We find the appellant's final point to be moot, because the
Fund was not ordered to pay for any rehabilitation program.  Its
liability was limited to a wage-loss disability award.  Therefore,
the Commission's mention of potential Fund liability as to a
hypothetical rehabilitation program was of no consequence.
     Affirmed.
     Bird and Griffen, JJ., agree.