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SECOND INJURY FUND v. STEPHENS6/24/1998
bility or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
(iii) Under this subdivision (5)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.
14(A) "Major cause" means more than fifty percent (50%) of the cause.
(B) A finding of major cause shall be established according to the preponderance of the evidence;
The Second Injury Fund contends that section 11-9-102(5)(F)(ii) required Mr. Stephens to prove that his 1995 injury was the major cause of his 20 percent wage-loss disability. Pointing to certain testimony and medical records from 1988 through 1996, and characterizing the 1996 injury and surgery as an independent intervening cause, it argues that the Commission erred in ignoring prior and subsequent factors that contributed to the disability.
The Commission rejected this argument with the following reasoning:
We are not persuaded by the Second Injury Fund argument that claimant has failed to prove by a preponderance of the evidence that the major cause of claimant's wage loss disability is his 1995 injury. Arkansas Code Ann. ยง 11-9-102(5)(F)(ii)(a) states "permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment." In this case, the record clearly shows that claimant sustained a two percent (2%) physical impairment as a result of the 1995 compensable injury. Thus, the major cause requirement has been satisfied and permanent partial disability benefits have been paid for this physical impairment.
We, too, reject the argument that the statute required claimant to prove that his compensable 1995 injury was the major cause of his wage-loss disability. Rather, the statute required only that he prove that his 1995 compensable injury was the major cause of the 2 percent impairment rating.
Dr. Kenneth Tonymon, a neurosurgeon who performed the first surgery in 1988 and the 1995 surgery, testified that Mr. Stephens's permanent partial impairment rating for the first two surgeries was 10 percent. He stated that an additional 2 percent rating is indicated for an operation at the site of a previous one, and that the May 1995 surgery was Mr. Stephens's second at the L4-5 level. He stated that Mr. Stephens's on-the-job injury at Trailmobile
was the major cause of the surgery, specifying that a soft piece of ruptured disc material was "not what I would consider a chronic herniation, so I feel like the history was certainly compatible. . . . That surgery was the sole cause of the additional [2 percent] rating I gave." Clearly, the "major cause" requirement of Arkansas Code Annotated section 11-9-102(5)(F) was satisfied by Dr. Tonymon's testimony that the 1995 injury necessitated performance of a surgery and that this surgery, at the site of a previous one, was the reason for the 2 percent impairment rating.
Our review of the evidence also shows that Mid-State's three-pronged test has been met. There was evidence before the Commission first, that Mr. Stephens sustained a compensable injury in 1995 while employed by Trailmobile; second, that he had a prior 10 percent impairment rating resulting from his 1987 compensable injury and related surgeries in 1988; and third, that the 1988 impairment combined with the
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