Alvin Nelson v. Timberline International, Inc.; Crum & Forster, Carrier; and Second Injury Fund, on Review

Annotate this Case
Alvie NELSON v. TIMBERLINE INTERNATIONAL,
INC.; Crum & Forster, Carrier; 
and Second Injury Fund

97-439                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 5, 1998


1.   Appeal & error -- review of court of appeals case. -- When the supreme
     court grants review following a decision by the court of
     appeals, it reviews the case as though the appeal was
     originally filed with the supreme court.

2.   Statutes -- construction -- stare decisis -- compelling reasons required
     for departure from prior interpretation. -- Under the doctrine of
     stare decisis, the supreme court follows its previous
     decisions construing a statute; nevertheless, stare decisis
     has never been applied mechanically to prohibit overruling
     prior decisions that have determined the meaning of statutes;
     the supreme court has, on occasion, departed from a prior
     statutory interpretation; the ultimate inquiry is whether
     there are compelling reasons for abandoning the prior judicial
     interpretation of a statute.

3.   Workers' compensation -- supreme court's review not precluded by Ark. Code
     Ann.  11-9-1001 -- interpretive function. -- The language of Ark.
     Code Ann.  11-9-1001 (Repl. 1996) did not preclude the
     supreme court's review of the liability of the Second Injury
     Trust Fund for permanent disability benefits under the statute
     because the court was not "liberalizing, broadening, or
     narrowing" the scope of the Workers' Compensation Act; rather,
     the court was merely interpreting a statutory provision
     allocating responsibility for benefits, which was clearly a
     function of the court. 

4.   Workers' compensation -- Second Injury Fund -- public purpose. -- The
     establishment of the Second Injury Trust Fund was for the
     stated public purpose of encouraging employment of disabled or
     handicapped workers by assigning liabilities for some wage-
     loss consequences of a second injury to the Fund.

5.   Workers' compensation -- Second Injury Fund -- limitation of employer's
     liability -- no resulting windfall to employers. -- The supreme court
     noted that if it interpreted the Second Injury Fund law to
     mean that an employer's liability would be limited to the
     actual anatomical impairment resulting from the last injury,
     there would be no windfall to employers because it is the
     employers themselves who contribute to the Fund. 

6.   Statutes -- construction -- basic rule. -- In considering the meaning
     of a statute, the supreme court construes it just as it reads,
     giving the words their ordinary and usually accepted meaning;
     the basic rule of statutory construction, to which all other
     interpretative guides must yield, is to give effect to the
     intent of the legislature; in attempting to ascertain
     legislative intent, the court looks to the language of the
     statute, the subject matter, the object to be accomplished,
     the purpose to be served, legislative history, and other
     appropriate matters that shed light on the matter.

7.   Workers' compensation -- Second Injury Fund -- provisions of Ark. Code Ann.
      11-9-525 clear and unambiguous. -- It is clearly expressed in Ark.
     Code Ann.  11-9-525 (Repl. 1996) that the purpose of the
     Second Injury Fund is to fully compensate an employee for his
     total injuries while simultaneously protecting employers from
     having to pay for injuries that did not occur while the
     employee was working for that employer; the statute clearly
     and unambiguously provides for the Second Injury Trust Fund to
     make up the balance of the employees' total benefits and the
     employer's share.

8.   Workers' compensation -- Second Injury Fund -- two earlier opinions wrongly
     decided. -- Based upon the flawed logic and incorrect
     assumptions regarding the solvency of the Second Injury Fund
     and a potential windfall to employers that buttressed the
     opinions, the supreme court concluded that McCarver v. Second
     Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), and Riceland
     Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986), were wrongly decided.

9.   Workers' compensation -- Second Injury Fund -- reinterpretation of
     ambiguous statutory language merely reallocated responsibility for payment
     of claims. -- The supreme court noted that the legislative
     intent to make available employment opportunities for injured
     workers was a more significant public-policy consideration
     than the determination of which of two privately funded
     providers of compensation benefits should be responsible for
     payment of wage-loss disability benefits; the court's
     reinterpretation of ambiguous statutory language to give
     effect to the legislative intent merely reallocated
     responsibility for payment of claims by requiring that the
     cost of additional wage-loss benefits, beyond the actual
     anatomical impairment resulting from the second injury, was to
     be borne by the Second Injury Trust Fund.

10.  Statutes -- earlier statute deemed repealed by implication. -- As a
     result of its determination that Act 290 of 1981 must be
     reinterpreted to give effect to legislative intent, the
     supreme court held that Ark. Stat. Ann.  81-1313(f)(1) (Repl.
     1976) was in conflict with Act 290 and accordingly was deemed
     repealed by implication by Act 290 from the time of the
     decision in this case.   

11.  Workers' compensation -- Second Injury Fund -- prior decisions overruled -
     - reversed and remanded. -- The supreme court concluded that its
     interpretation of Act 290 of 1981 in the McCarver and Riceland
     Foods cases was wrong and that it defeated the purpose of
     encouraging employers to retain employees with disabilities or
     impairments resulting from a prior injury in the same
     employment, in contravention of legislative intent; this was
     a compelling reason for overruling those decisions; the court
     reversed the Workers' Compensation Commission's decision and
     remanded for further proceedings.


     On Review from the Arkansas Court of Appeals; Appeal from the
Arkansas Workers' Compensation Commission; reversed and remanded.
     Barber, McCaskill, Jones & Hale, P.A., by: Tim A. Cheatham,
for appellees-petitioners Timberline International, Inc., and Crum
& Forster Commercial Insurance.
     Judy W. Rudd, for appellee-respondent Second Injury Fund. 

     Ray Thornton, Justice.
     Timberline International, Inc., and Crum & Forster Commercial
Insurance, its workers' compensation carrier, appeal the decision
of the Arkansas Workers' Compensation Commission holding that the
Second Injury Trust Fund is not liable for the permanent disability
benefits awarded to Alvie Nelson, a former employee of Timberline,
because his present condition resulted from the cumulative effect
of successive injuries he received while in the same employment. 
The Arkansas Court of Appeals affirmed the Commission's decision
based on the authority of McCarver v. Second Injury Fund, 289 Ark.
509, 715 S.W.2d 429 (1986), and Riceland Foods, Inc. v. Second
Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986).  Nelson v.
Timberline Int'l, Inc., 57 Ark. App. 34, 942 S.W.2d 260 (1997).  We
granted review of the decision of the court of appeals pursuant to
Ark. Sup. Ct. R. 1-2(f).  
     The primary issue is whether we should overrule McCarver and
Riceland Foods, in which we affirmed decisions of the court of
appeals interpreting Ark. Stat. Ann.  81-1313(i) (Supp. 1985), now
codified at Ark. Code Ann.  11-9-525 (Repl. 1996), to mean that
the Second Injury Trust Fund is not liable for wage-loss disability
benefits resulting from the cumulative effect of successive
injuries when the claimant sustains the injuries in the same
employment.  We are persuaded by a careful review of the McCarver
and Riceland Foods decisions that they should be overruled.
     The facts of this case are not disputed.  In 1988, Alvie
Nelson suffered a lower-back injury while working as a diesel
mechanic for Timberline.  He eventually underwent back surgery
resulting in a permanent impairment rating of fifteen percent to
the body as a whole.  When he recovered, Nelson returned to work at
Timberline where he performed lighter work as a mechanic for about
six months before being placed in the parts department where he
worked for a year or so.  Nelson then returned to his job as a
diesel mechanic, and, in March 1992, he suffered another lower-back
injury, for which he underwent two surgeries.  Nelson has not
returned to work or attempted to return to work since the second
back injury.  A neurosurgeon assessed his permanent impairment from
the 1992 injury to be an additional fifteen percent to the body as
a whole.
     Timberline accepted full responsibility for the payment of
benefits for the permanent physical impairment resulting from
Nelson's second injury.  A hearing was held before an
administrative law judge to determine the extent of Nelson's
permanent disability and the liability for any wage-loss disability
benefits in excess of Nelson's permanent physical impairment
ratings.  The judge found that Nelson was not permanently and
totally disabled due to the March 1992 injury but that he had
sustained wage-loss disability benefits of sixty percent.  The
judge also ruled that the Second Injury Trust Fund had no liability
for these benefits.  
     Nelson appealed the administrative law judge's decision to the
Workers' Compensation Commission, and Timberline cross-appealed,
asserting that the Second Injury Trust Fund was liable for the
wage-loss benefits over and above Nelson's permanent physical
impairment rating.  The Commission rejected Nelson's claim of
permanent and total disability, but reversed in part, finding that
Nelson had sustained a thirty percent impairment to his earning
capacity in excess of his physical impairment rating.  Furthermore,
the Commission, citing our decisions in McCarver and Riceland
Foods, affirmed the determination that the Second Injury Trust Fund
had no liability for Nelson's wage-loss disability benefits because
he sustained the second disabling injury while working for the same
employer for whom he had worked when he suffered his first
compensable injury.
     Both parties appealed the Commission's decision to the court
of appeals, which affirmed on both points.  In its opinion, the
court of appeals urged that the "same employer" defense, created by
the court in McCarver and Riceland Foods, deserves our
reconsideration.  Nelson, 57 Ark. App. at 36, 942 S.W.2d  at 261.
Nelson did not file a petition asking us to review the court of
appeals' determination that there was sufficient evidence to
support the Commission's finding that he was not permanently and
totally disabled; therefore, we do not address that determination.
On May 5, 1997, we granted Timberline's and Crum & Forster's
petition for review solely to determine whether we correctly
interpreted Ark. Stat. Ann.  81-1313(i), now codified at Ark. Code
Ann.  11-9-525, in McCarver and Riceland Foods to provide that the
Second Injury Trust Fund is not liable for permanent disability
benefits which exceed those directly related to a second injury in
the same employment.  When we grant review following a decision by
the court of appeals, we review the case as though the appeal was
originally filed with this court.  Stucco Plus, Inc. v. Rose, 327
Ark. 314, 938 S.W.2d 556 (1997).
     At the outset, we consider appellee's, the Second Injury Trust
Fund, argument that principles of stare decisis militate against
revisiting our prior decisions interpreting the liability of the
Fund under the statute.  We are mindful that under the doctrine of
stare decisis we follow the previous decisions of this court
construing a statute.  Scarbough v. Cherokee Enterprises, 306 Ark.
641, 816 S.W.2d 876 (1991); Southwest Ark. Communications, Inc. v.
Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988).  In Southwest
Arkansas Communications, Inc., we considered the principle of stare
decisis in the context of interpreting a constitutional provision
and stated:
     A cardinal rule in dealing with constitutional provisions is
     that they should receive a consistent and uniform
     interpretation so that they shall not be taken to mean one
     thing at one time, and a different thing at another time. 
     Certainly, when a constitutional provision or a statute has
     been construed, and that construction consistently followed
     for many years, such construction should not be changed.
Id. at 145, 753 S.W.2d  at 269 (citing O'Daniel v. Brunswick Balke
Collender Co., 195 Ark. 669, 674, 113 S.W.2d 717, 719 (1938)).   
Nevertheless, as the United States Supreme Court has recognized,
stare decisis has never been applied mechanically to prohibit
overruling prior decisions that have determined the meaning of
statutes.  Monell v. New York City Dept. of Social Serv., 436 U.S. 658, (1978).  Indeed, this court has, on occasion, departed from a
prior statutory interpretation.  See Fountain v. Chicago, R.I. & P.
Ry., 243 Ark. 947, 422 S.W.2d 878 (1968).  We believe the ultimate
inquiry is whether there are compelling reasons for abandoning our
prior judicial interpretation of the statute.  As discussed below,
upon review of the McCarver and Riceland Foods decisions, we
conclude that compelling reasons exist to overturn them.
     We also note that Ark. Code Ann.  11-9-1001 (Repl. 1996) does
not affect our ability to decide the issue before us.  That statute
provides:
     When, and if, the workers' compensation statutes of this state
     need to be changed, the General Assembly acknowledges its
     responsibility to do so. . . . In the future, if such things
     as the statute of limitations, the standard of review by the
     Workers' Compensation Commission or courts, the extent to
     which any physical condition, injury, or disease should be
     excluded from or added to coverage by the law, or the scope of
     the workers' compensation statutes need to be liberalized,
     broadened, or narrowed, those things shall be addressed by the
     General Assembly and should not be done by administrative law
     judges, the Workers' Compensation Commission, or the courts.
(Emphasis added.)
     This language does not preclude our review in this matter
because we are not "liberalizing, broadening, or narrowing" the
scope of the Workers' Compensation Act.  In addressing the
liability of the Second Injury Trust Fund for permanent disability
benefits under the statute, the issue relates only to the
allocation of responsibility for payment of those benefits.  The
claimant receives the same compensation regardless of who bears the
liability.  We are not changing the scope of the Workers'
Compensation Act; rather, we are merely interpreting a statutory
provision allocating responsibility for benefits, which is clearly
a function of this court. 
     Prior to 1979, employers who employed previously impaired
workers were obligated under Ark. Stat. Ann.  81-1313 (f)(1)
(Repl. 1976) to pay benefits for permanent total disability in the
event a new injury had the cumulative effect of causing such a
permanent disability.  That statute provided:
     If an employee receives a permanent injury after having
     previously sustained another permanent injury in the
     employ of the same employer, for which he is receiving
     compensation, compensation for the subsequent injury
     shall be paid for the healing period and permanent
     disability by extending the period and not by increasing
     the weekly amount.  When the previous and subsequent
     injuries received result in permanent total disability,
     compensation shall be payable for permanent total
     disability as provided in Section 10(a) 81-1310 of this
     Act.
Ark. Stat. Ann.  81-1313(f)(1).  In order to clarify the
provisions of the Arkansas workers' compensation law and to provide
improved benefits for persons qualifying under the Act, the
Arkansas General Assembly passed Act 290 of 1981, which
significantly changed the laws relating to second injuries and
repealed all laws in conflict with its provisions.  Section 4 of
Act 290 provides in pertinent part:  
     Commencing January 1, 1981, all cases of permanent
     disabilities or impairment where there has been previous
     disabilities or impairments shall be compensated as herein
     provided. . . . 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 or disability or impairment
     caused by the combined disabilities or impairment 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, 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.  After the compensation liability of the employer
     for the last injury, considered alone, . . . has been
     determined . . . the degree or percentage of employee's
     disability that is attributable to all injuries or conditions
     existing at the time of the last injury was sustained shall
     then be determined . . . and the degree or percentage of
     disability or impairment which existed prior to the last
     injury plus the disability of impairment resulting from the
     combined disability shall be determined and compensation for
     that balance, if any, shall be paid out of a special fund
     known as a Second Injury Fund provided for in Section 47 (Ark.
     Stats. 81-1348).
(Emphasis added.)
     This language appears to reflect a clear legislative intent
that any employer who employs a handicapped or disabled worker is
responsible only for such actual anatomical impairment as may
result from the last injury, and the Second Injury Trust Fund is
obligated to provide compensation for any greater disability that
may result from a combination of injuries.  
     In 1986, the court of appeals decided Second Injury Fund v.
Riceland, 17 Ark. App. 104, 704 S.W.2d 635 (1986) and Second Injury
Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639 (1986), in which
the court of appeals interpreted Section 4 of Act 290 of 1981, now
codified at Ark. Code Ann.  11-9-525.  We begin our analysis by
reviewing those opinions to determine the basis upon which the
court of appeals declined to apply the above quoted language to
cover circumstances where the claimant sustained successive
injuries during the same employment.  
     In those companion cases, the court of appeals reviewed and
reversed decisions of the Workers' Compensation Commission finding
that the Fund was liable for the permanent disability benefits of
the individual claimants even though all the injuries occurred
while in the same employment.  We consider the rationale employed
by the court of appeals in each case separately.  
     In Riceland, the court of appeals reviewed a decision in which
the administrative law judge and the Commission had determined that
the Second Injury Trust Fund was liable for the permanent
disability benefits based on the following language contained in
paragraph three of Act 290, now codified at Ark. Code Ann.  11-9-
525 (b)(5):
     If the previous disability or impairment or disabilities or
     impairments whether from compensable injury or otherwise, and
     the last injury together result in permanent total disability,
     the employer at the time of the last injury shall be liable
     only for the actual anatomical impairment resulting from the
     last injury considered alone and of itself; . . . .
Riceland, 17 Ark. App. at 106, 704 S.W.2d  at 636.  On review, the
court of appeals found the statute was ambiguous and stated that
"although it is possible to make the interpretation made by the law
judge and the Commission, we do not think `previous disability or
impairment' refers to a condition which occurred while in the
employment of the second-injury employer."  Id. at 107, 704 S.W.2d 
at 636.  Instead, the court of appeals focused on general language
contained in Ark. Stat.  81-1313(i), now codified at Ark. Code
Ann. 11-9-525 (a)(1):
     The Second Injury Fund established herein is a special
     fund 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 his employment.  
Id. at 106, 704 S.W.2d  at 636 (emphasis in original).  Based on
this language, the court of appeals reasoned:
     [I]f . . . the employer employing a handicapped worker is to
     be liable only for the disability or impairment that occurs
     when the worker sustains an injury during that employment,
     then it must follow that such employer will be liable for all
     the disability or impairment that occurs when the worker is
     injured while in that employment.
Id. at 107, 704 S.W.2d  at 636 (emphasis in original).
     The reasoning employed by the court of appeals in Riceland was
both logically and legally flawed.  It does not follow from the
premise that the employer "is to be liable only for [injuries
during an employment]," that the employer "will be liable for all
[injuries during an employment.]"  The establishment of the Second
Injury Trust Fund was for the stated public purpose of encouraging
employment of disabled or handicapped workers by assigning
liabilities for some wage-loss consequences of a second injury to
that Fund.
     In McCarver, the court of appeals further reasoned that the
Fund should not be liable for same employment injuries:
     The legislature expressly stated that the purpose of the
     statute is to insure that an employer employing a
     handicapped worker will not be required to pay for a
     greater amount of the disability or impairment than that
     which the worker sustains while in the employment of that
     employer.  Stretching the statute to require the Second
     Injury Fund to assume liability for part of the
     disability or impairment sustained by a handicapped
     worker while in an employer's employment relieves that
     employer of part of his statutory liability and grants
     him a windfall or subsidy.  It was not, in our opinion,
     the legislature's intent to give employers that type of
     encouragement to hire or retain handicapped or injured
     workers.  
McCarver, 17 Ark. App. at 103-04, 704 S.W.2d  at 641.  Contrary to
the court of appeals' conclusion, if we interpret the Fund law to
mean that an employer's liability is limited to the actual
anatomical impairment resulting from the last injury, there is
clearly no windfall to employers because it is the employers
themselves who contribute to the Fund. 
     The court of appeals also inferred that the Fund could become
insolvent if the statute was interpreted to allow employers to seek
recovery from the Fund in instances where the employee sustained
both injuries while employed by the same employer; therefore, the
court of appeals reasoned that the solvency of the Fund required
the application of what has become known as the "same employer"
defense.  Riceland, 17 Ark. App. at 107, 704 S.W.2d  at 637;
McCarver, 17 Ark. App. at 103, 704 S.W.2d  at 641.
     Our recent holding in Stucco Plus v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997) points out the faulty reasoning in McCarver and
Riceland Foods.  In Stucco Plus, we rejected an argument of the
Workers' Compensation Commission concerning the solvency of the
Second Injury Trust Fund.  In holding that the Commission's
reliance on protecting the solvency of the Fund was misplaced, we
stated:
     [I]n Mid-State Constr. Co. this court cited with approval
     Justice Newbern's dissent in McCarver v. Second Injury
     Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), which pointed
     out that the court of appeals' reference to language from
     Arkansas Workmen's Compensation Comm'n v. Sandy, 217 Ark.
     821, 233 S.W.2d 382 (1950) on consideration of the Fund's
     solvency came from the Commission and not from this
     court.  Secondly, we note that the funding mechanisms
     provided for the Fund in 1950 by Ark. Stat. Ann.  81-
     1313(f)(2)(iii) (Supp. 1949) were remarkably different
     from the current funding mechanisms provided in Ark. Code
     Ann.  11-9-301 to -307 (Repl. 1996).  This difference
     in funding sources underscores that any considerations of
     the Fund's solvency in this case is inappropriate. 
     Finally, we note that, in the event the Fund becomes
     insolvent, the General Assembly has expressed an intent
     to provide claimants with arrearage once the Fund regains
     its solvency, without any possibility of reverter of
     responsibility for benefits to employers.  Section 11-9-
     301(f).
Stucco Plus, 327 Ark. at 321, 938 S.W.2d  at 559-60.   
     In 1986, we reviewed the decisions rendered by the court of
appeals in McCarver and Riceland Foods.  In our review, we affirmed
the decisions of the court of appeals without fully addressing the
rationale employed by that court in reaching its decisions, and we
concluded:
          If successive injuries in the same employment cause total
     and permanent disability the employer or his insurance carrier
     is responsible to the employee for all benefits.  If the
     previous disability or impairment did not arise out of the
     employment by the same employer, the Second Injury Fund must
     pay the benefits.
Riceland Foods, 289 Ark. at 531, 715 S.W.2d  at 435.
     The question before us now is whether this determination of
the Second Injury Trust Fund's limited liability under the Riceland
and McCarver decisions was correct.  We begin our reconsideration
by noting that the statutory language at issue is ambiguous; we
must therefore interpret it using the tools of statutory
construction.  In considering the meaning of a statute, we construe
it just as it reads, giving the words their ordinary and usually
accepted meaning.  Vanderpool v. Fidelity & Cas. & Inc. Co., 327
Ark. 407, 939 S.W.2d 280 (1997).  The basic rule of statutory
construction, to which all other interpretative guides must yield,
is to give effect to the intent of the legislature.  Graham v.
Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). 
In attempting to ascertain legislative intent, we look to the
language of the statute, the subject matter, the object to be
accomplished, the purpose to be served, legislative history, and
other appropriate matters that shed light on the matter.  Board of
Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997).  
     We recently explained the legislative intent in the
establishment of the Second Injury Trust Fund law as follows:
     It is clearly expressed in section 11-9-525 that the purpose
     of the Fund is to fully compensate an employee for his total
     injuries while simultaneously protecting employers from having
     to pay for injuries that did not occur while the employee was
     working for that employer. . . . Moreover, the statute clearly
     and unambiguously provides for the Second Injury Trust Fund to
     make up the balance of the employees total benefits and the 
     employer's share when it states that 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."
Stucco Plus, 327 Ark. at 322, 938 S.W.2d  at 560.
     In light of the legislative intent, we examine again the
judicial analysis used to reach the results of McCarver and
Riceland.  Based upon the flawed logic and incorrect assumptions
regarding the solvency of the fund and a potential windfall to
employers, which buttressed those opinions, we conclude that
McCarver and Riceland Foods were wrongly decided.  It remains for
us to exercise our authority and responsibility to overrule those
cases if a compelling reason exists for doing so.  Such a
compelling reason was recently articulated in Mid-State
Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539
(1988).  In Mid-State Construction, we reviewed an unpublished
decision by the court of appeals that determined the Second Injury
Trust Fund had no liability for the wage-loss benefits that
resulted from the combination of a prior nonwork related impairment
and a compensable injury.  The court of appeals held that the
employer and its carrier were liable for the full disability.  In
reversing that decision, we wrote the following regarding the
result reached by the court of appeals:
     That result impermissibly distinguishes between two types of
     handicapped persons, contravenes the statutory scheme which
     makes employers liable only for the "degree of percentage of
     disability or impairment which would have resulted from the
     [recent compensable] injury had there been no preexisting
     disability or impairment," and defeats the purpose of the Fund
     to encourage the hiring of the handicapped.
Mid-State Constr. Co., 295 Ark. at 8, 746 S.W.2d  at 543.  
     We also note that the legislative intent to make available
employment opportunities for injured workers is a more significant
public policy consideration than the determination of which of two
privately funded providers of compensation benefits shall be
responsible for payment of wage-loss disability benefits.  Our
reinterpretation of ambiguous statutory language to give effect to
the legislative intent merely reallocates responsibility for
payment of claims by requiring that the cost of additional wage-
loss benefits, beyond the actual anatomical impairment resulting
from the second injury, is to be borne by the Second Injury Trust
Fund.
     The requirement that the risk of employing an injured worker
should be spread over the entire pool of employers is so fair and
reasonable that it is apparently followed in every other
jurisdiction that has a second injury fund law.  See, e.g., Second
Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990); Denton v.
Sunflower Elec. Coop., 740 P.2d 98 (Kan. App. 2d 1987); Estep v.
State Workmen's Compensation Comm'n, 298 S.E.2d 142 (W.Va. 1982). 
We are unaware of any cases to the contrary.        
     As a result of our determination that Act 290 of 1981 must be
reinterpreted to give effect to legislative intent, we also
consider whether an earlier statute, Ark. Stat. Ann.  81-
1313(f)(1)(Repl. 1976), remains effective.  In Riceland, we noted
that while Act 290 contained a clause repealing all provisions of
law contrary to Act 290, Ark. Stat. Ann.  81-1313(f)(1) was not
inconsistent with Act 290 and need not be considered repealed by
implication.  Riceland, 289 Ark. at 532, 715 S.W.2d  at 434. With
the interpretation of Act 290 we adopt today, it is clear that Ark.
Stat. Ann.  81-1313(f)(1) is in conflict with Act 290, and
accordingly is deemed repealed by implication by Act 290 from the
time of this decision.   
     We conclude that our interpretation of Act 290 in McCarver and
Riceland Foods was wrong and that it defeats the purpose of
encouraging employers to retain employees with disabilities or
impairments resulting from a prior injury in the same employment,
in contravention of legislative intent.  This is a compelling
reason for overruling those decisions.
     For the reasons stated, we reverse the Commission's decision
and remand for further proceedings consistent with this opinion.
     Glaze, J., concurs.
     Corbin and Imber, JJ., dissent.


     Tom Glaze, Justice, dissenting.  The dissenting opinion
correctly sets out this court's sound principles bearing on stare
decisis, and I certainly do not take issue with them.  This court
has and continues to follow those rules, but it should not do so
blindly.  As the majority opinion says, stare decisis has never
been applied mechanically to prohibit overruling prior decisions
that have determined the meaning of statutes.
     Only recently, this court dealt with the Second Injury Fund in
the case of Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556
(1997), where we held the Worker's Compensation Commission erred in
relying on the Commission's public policy to protect the solvency
of the Fund.  In so holding, the Stucco Plus case stood at odds
with this court's earlier cases of Riceland Foods, Inc. v. Second
Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986), and McCarver v.
Second Injury Fund, 289 Ark. 509, 715 S.W.2d 428 (1986).
     The Riceland Foods and McCarver cases were reviews of court of
appeals' decisions which were infected with the court of appeals'
belief that the solvency of the Second Injury Fund required the
Fund law provisions to be strictly complied with.  See Second
Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639 (1986);
Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 704 S.W.2d 635 (1986).  In short, the court of appeals inferred that
the Fund might become insolvent, if the court adopted an
interpretation of the Fund law that permitted employers to seek
Fund relief in instances where the injured or handicapped workers
sustain both the first and second injuries while with the same
employer.  See, Glaze, J., dissenting, Riceland Foods, Inc., 17
Ark. App. at 100.  Unfortunately, this court in its review of
Riceland Foods expressly and favorably recognized the court of
appeals' solvency reference to the Fund as the state of the law. 
289 Ark. at 532.    
     As already noted, our court, after deciding Stucco Plus as it
did, had cases going opposite directions as to how Arkansas's Fund
law should be interpreted and what, if any, effect insolvency of
the Fund should play in awarding benefits.  As I see it, this court
was either correct in its holding in Riceland Foods and McCarver,
or it was correct in Stucco Plus, and it is this court's province
and duty to decide which case(s) should prevail.  Stare decisis is
simply not the issue; the issue, instead, is whether the rationale
in Riceland Foods and McCarver prevails or whether the reasoning in
Stucco Plus should stand.  
     Because I believe solvency of the Fund has no relevance when
construing Fund provisions, I join with the majority court in
overruling Riceland Foods and McCarver.

     Annabelle Clinton Imber, Justice., dissenting.  There are two
fundamental principles of statutory construction that prevent me
from joining the majority.  The first, as the majority
acknowledges, is that statutes and constitutions:

     should receive a consistent and uniform interpretation so
     that they shall not be taken to mean one thing at one
     time, and a different thing at another time.  Certainly,
     when a constitutional provision or a statute has been
     construed, and that construction consistently followed
     for many years, such construction should not be changed.

Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993); Southwest
Ark. Communications, Inc. v. Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988); O'Daniel v. Brunswick Balke Collender Co., 195 Ark.
669, 113 S.W.2d 717 (1938); Tindall v. Searan, 192 Ark. 173, 90 S.W.2d 476 (1936).  The second principle is that once we have
construed a statute, our interpretation becomes part of the act
just as if it had been so written by the legislature.  See, e.g.,
Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Gibson v.
Gibson, 264 S.W.2d 418, 572 S.W.2d 146 (1978); E.C. Barton v. Neal,
263 Ark. 40, 562 S.W.2d 294 (1978); Merchant's Transfer & Warehouse
Co. v. Gates, 180 Ark. 96, 21 S.W.2d 406 (1929).  
     Adhering to these two principles, we have, on many occasions,
refused to abandon our interpretation of a statute or
constitutional provision in the absence of legislative action. 
See, e.g., Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997)
(thirty-six-year interpretation of the habeas corpus act, Ark. Code
Ann.  16-112-103); Morris v. McLemore, supra (one hundred-year
interpretation of the statute of limitations for legal malpractice
actions, Ark. Code Ann.  16-56-105); Burns v. Burns, supra,
(seven-year interpretation of the marital property act, Ark. Code
Ann.  9-12-315); Scarbrough v. Cherokee Enters., 306 Ark. 461, 816 S.W.2d 164 (1991) (fifty-year construction of the standard of
review in workers' compensation cases, Ark. Code Ann.  11-9-711);
Southwest Ark. Communications, Inc. v. Arrington, supra (five-year
interpretation of the usury law contained in Ark. Const., amend.
60); E.C. Lumber Co. v. Neal & Jones, supra (seventy-year
construction of the mechanic's lien statute, Ark. Stat. Ann.  51-
601); Gibson v. Gibson, supra (sixteen-year interpretation of the
partition statute, Ark. State Ann.  34-1801).
     Eleven years ago, we held in Riceland Foods, Inc. v. Second
Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986), and McCarver v.
Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), that
pursuant to Ark. Code Ann.  11-9-525, the Second Injury Fund is
not liable when an employee sustains successive injuries while
working for the same employer.  As mentioned previously, once we
reached this conclusion, our interpretation became part of the
Workers' Compensation Act.  Since that time, the General Assembly
has convened on eight separate occasions, but no changes were made
to Section 11-9-525 in response to our holdings in Riceland and
McCarver.  In fact, in 1993, the General Assembly made
comprehensive revisions to the Workers Compensation Act, some of
which were in response to particular cases decided by this court. 
1993 Ark. Acts 796,  6 and 31.  Yet, Section 11-9-525, and our
interpretation thereof, remained unchanged.
     Even though the legislature has, by implication, approved of
our holdings in Riceland and McCarver, the majority is willing to
abandon our well-established precedent in favor of the policy
considerations articulated by Timberline.  Although these policy
considerations appear persuasive, the identical arguments were
considered and rejected by this court eleven years ago in Riceland
and McCarver.  In particular, the majority appears to have been
persuaded by Timberline's contention that our construction of
Section 11-9-525 discourages employers from retaining impaired or
injured workers.  However, the record before us is devoid of any
evidence indicating that this concern has been realized over the
last eleven years.  In the absence of such evidence, I am hesitant
to abandon our well-established interpretation of Section 11-9-525.

     Finally, as we said in Gibson v. Gibson, "even though we might
feel that decision was wrong in retrospect, the construction of the
statute. . . established a rule of [law], and we are not at liberty
to overturn it."    Once we considered the relevant policy
considerations and interpreted the ambiguous language contained in
Ark. Code Ann.  11-9-525, our construction became part of the
statute itself, and it was up to the legislature to amend the act
if it disagreed with our interpretation.  The General Assembly has
simply refused to do so, and we should not act in their stead.
     For these reasons, I respectfully dissent.
     Corbin, J., joins in this dissent.