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Second Injury Fund v. Spence6/21/2000
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
The appellee JoAnn Spence, a UPS employee with a prior back condition, sustained another back injury in 1994 in the course of her employment with UPS. She filed a claim for benefits and, after a hearing to decide the extent of her disability and Second Injury Fund liability, the Commission found that the Second Injury Fund was liable for the wage loss disability benefits awarded to the employee. From that decision, comes this appeal.
Arkansas Code Annotated § 11-9-525 (Repl. 1996) provides, in pertinent part:
(a)(1) The Second Injury Trust Fund established in this chapter is a special fund designed to ensure that an employer employing a handicapped worker will not, in the event the 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.
(2) The employee is to be fully protected in 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.
(3) 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 fund.
(b)(1) Commencing January 1, 1981, all cases of permanent disability or impairment where there has been previous disability or impairment shall be compensated as provided in this section.
(2) Compensation shall be computed on the basis of the average earnings at the time of the last injury .
(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 pre-existing 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.
For reversal, the Fund contends that the Commission erred in finding that the employee's condition resulted from a combination of disabilities or impairments; in finding that appellant's prior condition was not latent; and asserts that the Commission's finding of fund liability is not supported by substantial evidence. We affirm.
When we review a decision of the Workers' Compensation Commission, the issue is not whether we may
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