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Second Injury Fund v. Sedgwick James of Arkansas11/9/2005
NOT DESIGNATED FOR PUBLICATION
This case involves an appeal and a cross-appeal. Appellant, Second Injury Fund, appeals from the Commission's decision that the Fund was liable for the payment of permanent-disability benefits to the claimant in excess of the anatomical impairment growing out of the August 1997 compensable injury. The appellees are Calvin Randle, claimant, his employer, G.E. Railcar Repair, and the carrier, Sedgwick James. G.E. Railcar and Sedgwick James cross-appeal from the Commission's decision that the claimant's healing period ended on August 28, 2001, rather than the earlier date of January 14, 1999. We affirm on both the direct appeal and the cross-appeal.
On September 5, 1991, Calvin Randle suffered a compensable back injury while working for G.E. Railcar Repair. After two surgeries, he was able to return to his same job with G.E. Railcar Repair. The extent of his injury at that time was assessed at fifteen percent to his body as a whole. In August 1997, Randle suffered another injury while working for the same employer. The contested injury was determined to be compensable in a December 15, 1999 opinion, in which the Commission affirmed and adopted the ALJ's finding that Randle suffered a compensable injury in August 1997 and that he was entitled to temporary-total disability benefits from January 20, 1998, to a date yet to be determined.
Following a June 6, 2003 hearing, the ALJ found, inter alia, that Randle was temporarily totally disabled for the period beginning January 20, 1998, and continuing through the end of his healing period, August 28, 2001; that Randle had a permanent physical impairment in the amount of ten percent to the body as a whole growing out of his August 1997 compensable injury ; that Randle's earlier 1991 compensable injury resulted in permanent-physical impairment of fifteen percent to his body as a whole; that Randle had been rendered permanently totally disabled from engaging in gainful employment when other applicable factors such as his general health, age, and degree of pain were considered; and that the Second Injury Fund was liable for the payment of permanent- disability benefits to Randle in excess of the anatomical impairment growing out of the August 1997 compensable injury.
The ALJ also discussed in his opinion several of the conclusions he had reached concerning the issues that had been addressed at the hearing. For purposes of this appeal, only his conclusions concerning the Second Injury Fund's liability and Randle's healing period are pertinent. With respect to the Fund's liability, the ALJ found no merit in the Fund's argument that our supreme court's decision in Nelson v. Timberline Int'l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998), which effectively eliminated the "same-employer" defense for the Fund, was not applicable to Randle's claim because it was delivered on March 8, 1998, which was after Randle suffered in his compensable injury in August 1997 and after he became disabled in January 1998. In rejecting the Fund's argument, the ALJ reasoned:
At the time of the Court's ruling in Timberline[,] adjudication had not commenced in the present claim. The argument raised by [the Fund] with respect to the same employer as a bar to its liability in the present claim is without merit. The Court noted in Timberline, supra:
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.
Page 1 2 3 4 Arkansas Personal Injury Attorneys
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