Hawkins Constr. Co. v. Maxell

HAWKINS CONSTRUCTION COMPANY v. Richard
MAXELL and Second Injury Fund

96-298                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 24, 1996


1.   Workers' compensation -- criteria for determining Second
     Injury Trust Fund liability. -- The criteria for determining
     whether the Fund is to share liability for compensating an
     injured worker is 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.

2.   Workers' compensation -- Second Injury Trust Fund -- meaning
     of "impairment". -- As used in reference to the Second Injury
     Trust Fund, an "impairment" is a condition which need not be
     work-related; one may become impaired, but not disabled in a
     wage-loss sense; one may be impaired without being disabled;
     an "impairment" may or may not be work-related, meaning that
     it may or may not have an effect on the injured worker's
     ability to perform. 

3.   Workers' compensation -- impairment suffered in first injury
     contributed to current compensable injury -- Commission's
     decision not supported by the evidence. -- Where the
     unrebutted testimony of appellee's surgeon was that the
     impairment suffered in a 1990 injury contributed to the
     current compensable injury, and there was nothing before the
     Workers' Compensation Commission to rebut that evidence, the
     evidence presented was not sufficient to support the
     Commission's decision that the Second Injury Trust Fund had no
     liability; the matter was reversed and remanded.


     Petition for Review from the Court of Appeals; reversed and
remanded.
     Bethell, Callaway, Robertson, Beasley & Cowan, by:  John R.
Beasley, for appellant.
     Thompson & Lewellyn, P.A., by:  James M. Lewellyn, Jr., for
appellee.

     David Newbern, Justice. 

6/24/96   *ADVREP*SC5*

HAWKINS CONSTRUCTION COMPANY            96-298
                                        Opinion Delivered:
          Appellant
     v.                                 Petition for Review
                                        from the Court of Appeals

RICHARD MAXELL AND SECOND INJURY   
FUND

          Appellee                      Reversed and Remanded








     This is a workers' compensation case.  Richard Maxell's back
was injured in the course of his employment with Hawkins
Construction Company (Hawkins) in late 1992, but he continued to
work until he again suffered a back injury in January, 1993. 
Surgery was performed after the 1993 injury, and Mr. Maxell was
found to have a permanent diability of 10% to the body as a whole. 
     Hawkins contended before the Workers' Compensation Commission
that it had no responsiblity because the injury was only a
recurrence of an injury suffered by Mr. Maxell in 1990 while
working for a different employer.  The Commission ruled against
Hawkins and held the 1993 injury amounted to a compensable
aggravation of the 1990 injury.  The Second Injury Trust Fund was
a party to the proceeding before the Commission.  It was held that
the Fund had no liability because the evidence was insufficient to
show that the two injuries, when combined, produced a disability
greater than that resulting from the 1993 injury alone.  Hawkins appealed.
     The Arkansas Court of Appeals affirmed the decision of the
Commission.  Hawkins Const. Co. v. Maxell, 52 Ark. App. 116, 915 S.W.2d 302 (1996).  In seeking review in this Court, Hawkins does
not again argue that Mr. Maxell's condition is entirely
attributable to the 1990 injury.  The only issue presented in this
review is whether it was error to hold the Fund was not responsible
for any portion of the compensation to be paid to Mr. Maxell.  We
hold the evidence was insufficient to support that decision. 
     After his 1990 injury, Mr. Maxell was treated conservatively. 
He was able to do the same sort of labor he had previously done. 
Dr. Standefur, the surgeon who operated after the 1993 injury,
testified the 1990 injury played a role in the severity of the
injury suffered in 1993.  He said the earlier injury was
responsible for 7% of the 10% permanent disability rating.  He said
the disc material he removed in 1993 was extruded in the 1990
injury, and a part of Mr. Maxell's current disability is the result
of nerve root damage caused by the disc protrusion from the 1990
injury as shown in a 1991 magnetic resonance image.
     The Fund was created by the General Assembly to see to it that
a subsequent employer, such as Hawkins, does not become responsible
for disability of an employee when a part of his or her condition
results from an injury which occurred in previous employment with
a different employer.  Ark. Code Ann.  11-9-525(a)(1) (Repl.
1996).  The only evidence before the Commission which might be
considered as contrary to the medical testimony is that which
showed that, from the 1990 injury, Mr. Maxell suffered no
disability or impairment which kept him from continuing to do the
same sort of labor he had done previously.
     In Mid State Const. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1989), we stated the critera for determining whether
the Fund was to share liability for compensating an injured worker:

          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.

We said an "impairment" was a condition which need not be work-
related and gave the example of a person who loses one eye, thus
becoming impaired, but not disabled in a wage loss sense, and then
loses the other eye to become disabled.  One may be impaired
without being disabled.  In Second Injury Trust Fund v. POM, Inc.,
316 Ark. 796, 875 S.W.2d 832 (1994), we said an "impairment" may or
may not be work-related, meaning that it may or may not have an
effect on the injured worker's ability to perform.  The fact that
Mr. Maxell suffered no wage-loss disability after the 1990 injury
has no necessary bearing on the issue whether he suffered an
impairment from that injury which contributes to his present
disability.
     The unrebutted testimony of Dr. Standefur is that the
impairment suffered in the 1990 injury contributes to the
compensable injury.  As there was nothing before the Commission to
rebut that evidence, we cannot say that the evidence presented was
sufficient to support the Commission's decision.  We remand the
case for orders consistent with this opinion.
     Reversed and remanded.