McCarver v. Second Injury Fund , 289 Ark. 509 ( 1986 )

George Rose Smith, Justice.

In this and a companion case we granted petitions to review decisions of the Court of Appeals reversing awards made by the Workers’ Compensation Commission. Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639 (1986); Second Injury Fund v. Riceland Foods, 17 Ark. App. 104, 704 S.W.2d 635 (1986). The two majority opinions of the Court of Appeals supplemented each other, but they dealt with a single issue, which is all we need consider.

The issue: Is the Second Injury Fund liable when an employee sustains a second injury while still working for the employer in whose employment he sustained the first injury? The Commission held the Fund liable; the Court of Appeals reversed.

In this case Ms. McCarver was working for Munro-Clear Lake Footwear when she suffered a back injury in 1979. She returned to work with an impairment of 5% to the body as a whole. In August, 1983, she suffered a compensable injury to her shoulder, arm, and hand. That too was a 5% impairment in itseff, but the combination of injuries resulted in a total impairment of 30%. The claimant will be paid in any event. The question is whether the extra 20% impairment is to be paid by the employer’s insurance carrier or by the Second Injury Fund.

The policy reasons underlying the second injury statute, having to do with the continued employment and the reemployment of workers handicapped by an earlier injury, were considered by the majority and dissenting opinions in the Court of Appeals. The opinions also went into the basic question of statutory construction. We perceive nothing really new to add to the analysis presented by the Court of Appeals.

We are of the view that the majority opinions were right in putting primary emphasis on the language of the statute. On March 31, 1981, shortly before both the second injuries in these cases occurred, the legislature made this significant addition to the pertinent section of the Workers’ Compensation Law:

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. [Italics supplied.] Ark. Stat. Ann. § 81-1313(i)(l) (Supp. 1985).

In commenting on the sentence just quoted, the majority in the Riceland. case made this observation:

Obviously, if as provided in the very first sentence of the statute — the sentence stating the reason and purpose for the statute — 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 the 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.

We find the court’s reasoning to be convincing.

Affirmed.

Hickman and Newbern, JJ., dissent.