*1
509
LAKE
McCARVER
MUNRO-CLEAR
Mildred
v.
INJURY FUND
SECOND
FOOTWEAR
David L.
Fund,
Second
Injury
respondent.
George
Justice. In this and a
Smith,
case
companion
Rose
we granted petitions to review decisions of the
Court Appeals
reversing
awards made
the Workers’
Commis-
McCarver,
sion.
Injury
Second
Fund
101,
17 Ark. App.
Foods,
S.W.2d
639 (1986); Fund v. Riceland
Injury
104,
whether the 20% Fund. the Second by Injury insurance carrier or statute, second underlying The reasons the the and having reemploy- to do the continued employment an were consid- injury, of workers earlier handicapped ment in the dissenting the Court opinions ered majority went The also into the basic opinions Appeals. new to add to nothing really construction. We statutory perceive the analysis presented by Appeals. the the the were in right We are of view that majority opinions on the of the statute. On language primary emphasis putting 31, 1981, both before the second in these shortly March occurred, made significant this addition to legislature cases the Workers’ section of the Law: pertinent the The Fund herein is a Injury established to insure that an designed special employ- not, worker will event such ing the worker handicapped an for a job, suffers on the be held liable greater or than occurred while the disability impairment actually in his employment. supplied.] [Italics Ann. 81-1313(i)(l) Stat. (Supp. § on sentence the in the commenting just majority quoted, case this Riceland. made observation: if as in the first sentence of provided very
Obviously, the statute —the sentence the reason and stating purpose statute —the employing handicapped worker is to or only disability impairment be liable that occurs when the worker sustains an injury during it must follow be then that such will employment, for all that occurs when while in employment. is that We find the court’s to be reasoning convincing.
Affirmed. JJ.,
Hickman Newbern, dissent. Justice, Newbern, thoroughly I dissenting. disagree David case in Second with the in this as well as opinion which is released to (86-50), being today, Riceland Foods Fund v. this decision. the extent it echoes
First, 81-1313(i)(l) Ark. Stat. Ann. majority says that 1985) contains to the effect (Supp. language persuasive should an not be liable because it precludes to other than one having any injury from pay sustained while the worker was in his The employment. simple if answer that fund has point pay case will not be in any his that statute violated way.
will not be any injury not incurred paying worked will for him. He for less than entire paying *3 disability.
Second, the is the majority by court of persuaded appeals’ reference to that same section and the of statutory appeals’ court that if reasoning only the is such employer required pay injury as the worker sustains in his employment “it must follow such that will be for all the employer liable disability that when is in occurs that employment.” I cannot follow reasoning. that must the Why be for all? Neither court of the appeals majority nor that of this court To need explains. contrary, the the employer not liable for all if the legislature has relieved the the extent the sum of greater is than disability parts by its creating second fund injury for that very purpose.
Third,
looking at the
of the court of
opinion
appeals
it
majority,
becomes
the
apparent that
for the
principal reason
result reached is
of
fear
fund.
of
insolvency
injury
this case
of
the court
cited the article
appeals
Bill Bassett
expressing his
fear of the fund’s
personal
W.
potential insolvency.
Bassett,
Law,
New,
Old
The Arkansas
1983,
Lawyer,
case,
122 at
July,
p.
124. In the
the
p.
Riceland
further,
court of
opinion goes
appeals’
citing our
in
opinion
Arkansas
Sandy,
Workmen’s Compensation Commission v.
Riceland case majority court of is Ark. Stat. Ann. appeals opinion 81-1348(a) 1985) which the (Supp. provides that if fund cease, becomes insolvent it payments from will will, 1,1983, what would not be liable to pay after have the fund. otherwise been paid Sandy case was not court of from the quotation appeals’ Rather, from the language court. it was language even the of this that case commission’s in which opinion workers’ nor Our disapproved. but neither quoted approved our opinion reverse the commission’s factual conclu- decision was not to The case of the worker. disability sions as to extent of to the from a extent stating policies respect far decision cry the cited statute do of the second fund’s Nor does injury exposure. fund’s contingency more than of the It provide insolvency. General no whatever as to the Arkansas Assem- gives guidance and, whether the creating intent bly’s specifically, created aby fund should in excess of that second pay the same who employed employment when the first occurred. Fourth, attention, if is the court of any, scant paid by appeals court, or the behind the majority, says, As Professor Larson second legislation. of apportion- funds have created to solve the dilemma been that an who loses one injury. eye ment of His is example be if lose the other is far less disabled he would he should eye than Thus, in a later to far subject higher accident. *4 rates a one eye. insurance if he hires with The person discharge thus has a financial incentive to strong who, his from the of handicap resulting virtue of loss Larson, 2 A. aggravated one causes this “kind of eye, liability.” Law, 59.31(a) (1983). Workmen’s of Compensation policy § this incentive is whether eliminating directly financial implicated considering hiring an a worker whom he handicapped or a worker who is retaining had not previously employed with injured working agree Judge while for him. I permanently Glaze’s dissent in the Riceland case to the effect that it is no this 81-1335(b) answer to to cite Stat. Ann. problem § an be sanctioned for The fact that (Repl. employer may an a workers’ claim firing employee bringing compensation to hire no on an retain a places requirement should a employee Nor handicapped employee. handicapped was in the of to show his dismissal position having wilfully put of his filed a claim when the discriminatory having on the basis to do retaliation but is intent have with employer’s may nothing a rate would be lower with a recognition that his insurance simply on the employee job. non-handicapped Sixth, I look decisions believe it is traditional and useful to have, here, we as a of first jurisdictions question other when laws Although the workers’ and impression. ours, differ detail surely statutes from may
method behind the second implementation policy in other states is State law relevant. In Workmen’s Estep Commissioner, S.E.2d (W.Va. 1982), Compensation Virginia West Court of was with Appeals faced same and said:
It is
view
the Commissioner’s
that the second injury
statute
in circumstances where the
applies
employee
injuries
suffers both
the same
employed by
as well when
injuries
as
are suffered during employ-
ment with different
We agree. “The second
employers.
statute,
23-3-1,
life award
W. Va. Code
purposely designed
encourage
to hire dis-
employers
abled workers
not
an
charging
preexisting
disabilities.” Syllabus Point Pertee v. State Workmen’s
Commissioner,
W. Va.
Therefore, an when suffers second injury, which when combined effect of a prior injury results in permanent total disability, both occurred while the claimant worked for the em- same *5 ployer, chargeable for resulting from the second
is chargeable for the remainder due the claimant. Other cases in which a second fund has held been
514 than one from more resulting Zabita v. include: single employer of a in the employ 1986); Rite, Inc., (N.J. App. A.2d 194 505 Shop Chatham (N.M. App. P.2d 3 650 Corporation, Nuclear United v.
Vaughn Co., (App. N.Y.S. 548 Rubber Seiberling 1982); Stanick v. 374 N.Y.S. Corp., v. Sealright O’Grady 1964); Div. jurisdictions from other no cases I have found Div. (App. contrary. dissent. I respectfully
Hickman, J., joins. and Barbara POLITE Glen Richard Renee THIGPEN POLITE S.W.2d 910 86-32 of Arkansas 21, 1986 delivered Opinion