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Second Injury Fund v. Sedgwick James of Arkansas11/9/2005
as decided. However, because we are also affirming the Commission in the cross-appeal, discussion infra, we will use the August 28, 2001 date.
The appellees' rationale for using the date on which permanency is determined can be summarized as follows: "Ark. Code Ann. ยง 11-9-525 is couched in language in regard to a permanent disability case before the Second Injury Fund liability attaches"; the Fund did not appear at hearings in the instant case where only temporary disability was at issue; not every workers' compensation case in Arkansas is a Second Injury Fund case because "we must wait until permanent injury is assessed before any potential liability attaches to the Second Injury Fund"; the Fund's liability benefits the employer in that its existence allows the employer to hire more disabled or handicapped workers; the instant case did not become a permanent-disability case until after Timberline was decided; and accordingly, the Commission was correct in applying Timberline and refusing to allow the Fund to utilize the "same- employer" defense.
The ALJ did not cite any legal authority when he stated in his opinion that "the Court's ruling in Timberline was applicable to all claims pending at the time it was delivered, to include the present matter." However, in Baker v. Milam, 321 Ark. 234, 237, 900 S.W.2d 209, 211 (1995), our supreme court explained:
We discern the basic issue to be the propriety of the retrospective application of a decision of this court. Appellant cites Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986), and contends we should deviate from our long-standing practice of applying our decisions retrospectively. In Wiles, this court applied one of its overruling decisions prospectively because it found the parties had justifiably relied on the old rule of law. However, we find no such justifiable reliance in the present case. As appellee correctly observes, this court applied the law enunciated in the Weidrick case to the parties thereto. In addition, we observe this court has consistently applied Weidrick to suits filed after June 29, 1992, the date Weidrick was decided, but based on alleged acts of malpractice occurring prior to June 29, 1992. See, e.g., Thompson, 319 Ark. 6, 889 S.W.2d 31. We see no reason to engage in selective prospective application of Weidrick and its progeny to this case and thereby deviate from our established practice of applying Weidrick retrospectively. To do so would violate the principle of treating similarly situated parties the same.
In summary, the trial court correctly applied the decisional law of this court as it existed when it decided appellant's case.
(Emphasis added.) By the time the Fund was playing a role in this case, the Timberline case had been decided. Moreover, similar to the situation presented in the Baker case, supra, we can discern no basis upon which the Fund can be said to have "justifiably relied" upon the old law, i.e., the "same-employer" defense. We hold, therefore, that under the circumstances presented in the instant case the Commission was correct in applying the decisional law of the supreme court as it existed when this case was decided.
Cross-Appeal
In the cross-appeal, G.E. Railcar and Sedgwick James contend that the Commission erred as a matter of law in failing to find that the healing period of claimant ended as of January 14, 1999, rather than August 28, 2001. We disagree.
In determining the sufficiency of the evidence to sustain the findings of the Workers' Compensation Commission, we review the evidence in the light most favorable to the Commission's findings and affirm if the findings are supported by substantial evidence
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