{ "id": 1712539, "name": "CHICAGO MILL & LUMBER COMPANY, Employer v. Starline GREER, Employee, and STATE of Arkansas, Second Injury Fund", "name_abbreviation": "Chicago Mill & Lumber Co. v. Greer", "decision_date": "1980-07-02", "docket_number": "CA 80-104", "first_page": "895", "last_page": "907", "citations": [ { "type": "official", "cite": "269 Ark. 895" }, { "type": "parallel", "cite": "601 S.W.2d 583" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "8 Vand. L. Rev. 575", "category": "journals:journal", "reporter": "Vand. L. Rev.", "year": 1955, "opinion_index": 0 }, { "cite": "262 Ark. 695", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675866 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0695-01" ] }, { "cite": "237 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737967 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/237/0008-01" ] }, { "cite": "346 S.W. 2d 658", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1961, "opinion_index": 0 }, { "cite": "233 Ark. 786", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691761 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/233/0786-01" ] }, { "cite": "241 Ark. 498", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724159 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/241/0498-01" ] }, { "cite": "183 So. 2d 917", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9837989 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/so2d/183/0917-01" ] }, { "cite": "153 So. 2d 276", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 1828854 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/miss/247/0001-01" ] }, { "cite": "217 Ark. 821", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724659 ], "weight": 3, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0821-01" ] }, { "cite": "241 Ark. 1002", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724191 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/ark/241/1002-01" ] }, { "cite": "259 Ark. 837", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619203 ], "weight": 2, "year": 1976, "opinion_index": 1, "case_paths": [ "/ark/259/0837-01" ] }, { "cite": "256 Ark. 932", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725967 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/ark/256/0932-01" ] }, { "cite": "256 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717318 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/ark/256/0007-01" ] } ], "analysis": { "cardinality": 934, "char_count": 22371, "ocr_confidence": 0.715, "pagerank": { "raw": 3.1282580086832115e-07, "percentile": 0.8611129451948742 }, "sha256": "162af27e473cd79824639d39a59cb46287aa0838e789fae36ead577ff77f5125", "simhash": "1:5912f08799849bd9", "word_count": 3618 }, "last_updated": "2023-07-14T14:52:47.346821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Wright, C.J., and Hays and Newbern, JJ., dissent.", "Chief Judge Wright and Judge Hays join in this dissenting opinion." ], "parties": [ "CHICAGO MILL & LUMBER COMPANY, Employer v. Starline GREER, Employee, and STATE of Arkansas, Second Injury Fund" ], "opinions": [ { "text": "George Howard, Jr., Judge.\nOn January 17, 1978, claimant-appellee, a 62-year-old black man, with no formal education \u2014 claimant cannot even write his name \u2014 while in the course of his employment with appellant, was injured when a log fell on his right foot fracturing his ankle. The fracture required surgery involving the insertion of metal screws to repair the injury.\nClaimant\u2019s left leg was amputated below the knee in 1938 or 1939 as a consequence of an injury for which he received no compensation.\nThe Workers\u2019 Compensation Commission, in determining claimant\u2019s permanent disability and the application of Arkansas\u2019 Second Injury Law to such determination, made the following findings of fact:\n1. That as a result of the combined effect of the non-job-related amputation of his left leg and the 40 percent impairment to his right leg resulting from the compensable injury of January 17, 1978, the claimant is permanently and totally disabled.\n2. That payments from the Second Injury Fund as per Section 13(f)(2)(iii) are not applicable to this claim.\n3. That the non-job-related amputation of the claimant\u2019s left leg below the knee prior to the compensable injury of January 17, 1978, independently produced some degree of disability before the accident and continues to operate as a source of disability after the accident; ;and that the respondent, Chicago Mill & Lumber Company, is entitled to a credit of $10,500.00 under the Rule of Apportionment for the non-job-related amputation of the left leg and is based upon 125 weeks at $84.00 per week.\n4. That respondents\u2019 total liability for all weekly compensation benefits to the claim under Finding of Fact No. 3 amounts to $39,500.00 and represents 470.24 weeks at $84.00 per week; and that after respondents have paid weekly benefits which amount of $39,500.00, further benefits due the claimant for total disability shall be paid from the Death and Permanent Total Disability Bank Fund.\nIn explaining the Commission\u2019s posture in fixing the employer\u2019s share at $39,500.00 for claimant\u2019s disability - the Commission apportioned claimant\u2019s share at $10,-500.00 \u2014 the Commission stated:\n\u201cAs per Section 10(c)(2) of the Act, the respondent\u2019s total disability for weekly benefits in this case is $50,000.00. The claimant, prior to his compensable injury of January 17, 1978, suffered a non-job-related amputation of his left leg below the knee which would have entitled him to 125 weeks of compensation if the amputation had been the result of a compensable injury. There is no evidence in the record as to when the amputation occurred, or the amount of the claimant\u2019s earnings at the time of the amputation. In view of the lack of evidence concerning this question, we feel that a fair and reasonable method to determine the credit to be given from the prior injury is to base it on the claimant\u2019s earnings at the time of the compensable injury of January 17, 1978. The claimant\u2019s compensation rate for the injury of January 17, 1978, is $84.00 per week, and 125 weeks at $84.00 per week for the amputation of the left leg below the knee will give the respondent, Chicago Mill & Lumber Company, a credit of $10,500.00.\n\u201cSince the maximum total liability ol the respondent, Chicago Mill & Lumber Company, is $50,000.00, and giving them a credit of $10,500.00, for the non-job-related amputation of the claimant\u2019s left leg, will leave a balance to be paid by the respondent, Chicago Mill & Lumber Company, of $39,500.00 or 470.24 weeks at $84.00 per week.\u201d\nAppellant argues that the Commission erred in ruling that the second injury fund was not applicable in this proceeding.\nIn Arkansas Workmen\u2019s Compensation Commission v. Sandy, 217 Ark. 821, 233 S.W. 2d 382 (1950), the Arkansas Supreme Court made the following relevant comment in sustaining the Commission\u2019s holding that the claimant was not entitled to payment from the \u201cSecond Injury Fund\u201d:\n\u201cThis court has held that the degree of disability suffered by an injured employee is a factual question to be determined from the evidence in the case.\u201d\nThe Supreme Court commented further in Sandy by quoting from the opinion of the Commission:\n\u201c \u2018This fund, called the \u2018Second Injury Fund\u2019, is a limited and restricted fund and is created specifically for the benefit of those employees who are found to be totally and permanently disabled and who strictly comply with the provisions and requirements of \u00a7 13(f)(2)(iii). While Workmen\u2019s Compensation Acts are generally to be liberally construed the solvency of this special \u2018Second Injury Fund\u2019 requires that the provisions and requirements thereof be fully and strictly complied with. In our opinion, the \u2018loss of a member or organ\u2019, or the \u2018loss of use of a member or organ\u2019, as is provided for in \u00a7 13(f)(2)(iii) means the total loss or total loss of use. To hold otherwise would open this special fund to the point of insolvency and provide no benefit to those who do comply with its provisions and who are entitled to benefits thereunder.\u2019 \u201d\nDr. Harold H. Chakales, claimant\u2019s physician,- submitted a medical report dated October 17, 1978, which reads:\n\u201cAt this time, I feel that Mr. Greer has reached maximum healing and that he carries a physical impairment of approximately 35-40% of the right lower extremity.\u201d\nDr. Richard M. Logue, who examined the claimant at the request of the employer, stated in his medical report dated August 18, 1978:\n\u201c. . . I would anticipate that his disability relating to this injury would be in the magnitude of possibly 15 percent to the right leg below the knee.\u201d\nThe claimant testified with reference to his right leg: \u201c. . . I can\u2019t stand up on it no more, because I tries it . . that he has tried to resume work on three occasions, but was \u201ctold to go back home\u201d after working about an hour with his crutches when his foot started swelling and paining; and that his left leg is a wooden leg.\nUpon this evidence the Commission found that claimant\u2019s impairment to his right leg was 40%, and, accordingly, he has not sustained a total loss of use required under the statute governing the second injury fund.\nWe hold that there is substantial evidence to support the holding of the Commission.\nAppellant also argues that the Commission \u201cerred by apportioning the specific value of the pre-existing injury ($10,500.00) rather than the effect of the pre-existing injury upon the ultimate liability, $45,800.00.\u201d In other words, appellant is ultimately liable only for the amount of disability attributable to the injury of January 17, 1978 \u2014 the 40% impairment of claimant\u2019s right leg, an award of 50 weeks at $84.00 per week or $4,200.00. \u201cAny additional award resulting from the effect of the pre-existing injury and therefore that portion ($45,800.00) should be apportioned.\u201d\nUnder Ark. Stat. Ann. \u00a7 81-1310(c)(l)(2) (Repl. 1976), appellant\u2019s total liability for claimant\u2019s permanent total disability for weekly benefits is $50,000.00. The Commission, having found that claimant\u2019s pre-existing impairment independently produced some degree of disability before the compensable injury as well as after the injury, concluded that claimant\u2019s pre-existing disability resulting from the non-job-related amputation of his left leg should be apportioned.\nInasmuch as there was no evidence in the record specifying the exact date that claimant\u2019s left leg was amputated or the amount of the claimant\u2019s earnings at the time of the amputation, the Commission concluded that a fair and reasonable method for determing the credit to be given for the pre-existing injury was to base the calculation on claimant\u2019s earnings at the time of his compensable injury of January 17, 1978, and apply the schedule for such a member contained in Ark. Stat. Ann. \u00a7 81-1313(c). A credit of $10,-500.00 was applied against appellant\u2019s Lability of $50,000.00, thus requiring appellant to pay $39,500.00 or 470.24 weeks at $84.00 per week. At the end of this period, further payments due claimant for his total disability would be made from the Death and Permanent Total Disability Bank Fund.\nThe effect or the contribution of a pre-existing injury, when combined with a present compensable injury resulting in permanent total disability, as in the instant case, is seldom susceptible of exact proof. This determination must be left principally, if not entirely, to the discretionary estimate of the Workers\u2019 Compensation Commission which is endowed with the responsibility to develop the State\u2019s policy in industrial injury cases. Southeastern Construction Company, et al v. Dependent of S. W. Dodson, Deceased, 153 So. 2d 276 (Miss. 1963); Bill Williams Feed Service v. Mangum, 183 So. 2d 917 (Miss. 1966). The question involving a worker\u2019s total disability is to be determined as a question of fact. Eddie McNeely v. Clem Mill & Gin Company et al, 241 Ark. 498, 409 S.W. 2d 502 (1966); Arkansas Workmen\u2019s Compensation Commission v. Sandy, supra.\nPrior to claimant\u2019s compensable injury on January 17, 1978, claimant was fully employed, engaged in heavy manual labor involving mill work, his job assignment required a considerable amount of standing and walking and it is clear that claimant performed satisfactory service at Chicago Mill over a relatively long period of time in spite of the fact that he had a wooden leg. Indeed, the Commission was free to consider these factors and any inferences derived therefrom in making the apportionment in this case. We are unable to perceive, and the appellant has not demonstrated, any abuse of the Commission\u2019s discretion or manifest errors on the part of the Commission in making the apportionment in this proceeding.\nTotal disability, within the meaning of the Workers\u2019 Compensation Law, does not mean merely functional disability, but includes the varying degrees in each instance, loss of use of the body to earn substantial wages. Glass v. Edens. 233 Ark. 786, 346 S.W. 2d 658 (1961). Balancing of functional factors and loss of use of the body to earn substantial wages is a responsibility of the Commission. Mann v. Potlatch Forrests, 237 Ark. 8, 371 S.W. 2d 9 (1963).\nThe Supreme Court made the following relevant comment in Rooney & Travelers Insurance Co. v. Charles, 262 Ark. 695, 560 S.W. 2d 797 (1978), Justice, now Chief Justice, Fogleman, speaking for the Court:\n\u201cWe have long recognized that the wage-loss factor, i.e., the extent \u2018to which a compensable injury has affected a claimant\u2019s ability to earn a livelihood,\u2019 rather than the functional or anatomical loss, is generally controlling in disability determinations, which are to be made by the Workmen\u2019s Compensation Commission on the basis of medical evidence, age, education, experience and other matters reasonably expected to affect the claimant\u2019s earning power. .. .\u201d\nFinally, appellant contends that if the Second Injury Fund is not liable and appellant is required to pay benefits in excess of the scheduled allowance for the 40% impairment to claimant\u2019s right leg, $4,200.00, handicapped employees may be discharged when their employers adjust their work force to miminize their exposure.\nAppellant\u2019s argument is neither persuasive nor impressive, for studies have established that handicapped workers have a lower accident rate than workers in possession of their full functions. See: Encouragement of Employment of the Handicapped, 8 Vand. L. Rev. 575 (1955). Moreover, emphasis is now placed on the rehabilitation of employees who have sustained permanent disability in industrial accidents. Rehabilitation Within The Worker's Compensation Framework, 19 Rutgers Law Review 401 (1965). Arkansas\u2019s Rehabilitation Law, Ark. Stat. Ann. \u00a7 81-1310(f) is perhaps one of the most objective pieces of legislation designed to cope with the problems involving disabled or handicapped employees.\nMoreover, the history of claimant\u2019s performance as an employee, over the years, as well as Chicago Mill\u2019s conduct after claimant was discharged by his physician, refutes appellant\u2019s argument. After claimant had reached the maximum healing period, appellant returned claimant to his former work assignment even though claimant was even more handicapped than before. It is clear that claimant was a dependable, conscientious and dedicated employee. To limit claimant\u2019s recovery can likewise cast a deleterious effect on the efforts of the Commission and employers alike endeavoring to promote the rehabilitation of the handicapped. Needless to say, a reversal of the Commission in this case will have the effect of penalizing a handicapped employee who has sought to improve himself economically without relying solely on social agencies for assistance. Indeed, society\u2019s attitude and thinking about the handicapped in 1980 is more humane and realistic than it was fifty years ago.\nAffirmed.\nWright, C.J., and Hays and Newbern, JJ., dissent.\nClaimant\u2019s affidavit dated May 31, 1979, states:\n\u201c T was cutting timber for the Shannon Brothers in Mississippi around 1938 or 1939, when a tree fell on my left leg and crushed it. I did not receive any compensation for same; I even had to pay my own medical bills.\u2019 \u201d\nArk. Stat. Ann. \u00a7 81-1313(f)(2)(iii) provides:\n(f) Second injury: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto:\n(2) If an employee has a prior permanent total disability not occasioned by an injury resulting while in the employ of the same employer in whose employ he received a subsequent permanent injury, the amount of compensation for the subsequent injury shall be fixed as follows:\niii. If an employee who had previously incurred permanent partial disability through the loss of one [1] hand, one [1] arm, one [1] foot, one [1] leg, or one [1] eye, incurs permanent total disability through the total loss of another member, enumerated in this sentence, he shall be paid, in addition to the compensation for permanent partial disability provided in Section 13(c) (subsection (c) of this section), additional compensation during the continuance of such total disability at the rate prescribed in Section 10 [\u00a7 81-1310] of this Act applied at the time of the accident which produced the total permanent disability.\nIt has been conceded by the parties in this proceeding that claimant is totally and permanently disabled.\nAs a direct consequence of claimant\u2019s compensable injury of January 17, 1978, his earning capacity was reduced from 100% to zero.", "type": "majority", "author": "George Howard, Jr., Judge." }, { "text": "David Newbern, Judge,\ndissenting. The appellant asks only that the apportionment of its liability be done in a fair manner. The prevailing opinion (there is no majority in this case) affirms apportionment by the workers\u2019 compensation commission in a manner I view as being grossly unfair to the appellant.\nThere is no direct statutory authority for apportionment of liability for total disability. However, the Arkansas Supreme Court has approved the doctrine of apportionment, at least in cases where it is necessary to divide responsibility between two employers. International Paper Company v. Remley, 256 Ark. 7, 505 S.W. 2d 219 (1974).\nIn the Remley case Justice George Rose Smith\u2019s opinion dealt with an employee who had sustained a 20% permanent partial disability of the hand before going to work for the appellant-employer. He thereafter sustained an additional 15% permanent partial disability to the same hand a a result of a compensable injury. The commission\u2019s decision, which was affirmed by the circuit court, awarded compensation against the employer for the entire 35% disability on the theory that apportionment would be contrary to the general purposes of the act. The supreme court reversed that holding. Justice Smith said:\n. . .[W]orkers as a whole will not always benefit in the long run by a rule of non-apportionment that makes an employer liable for the total consequences of a second injury, as if the first injury had not occurred. Such a rule might easily make it hard for the victims of a first injury to find re-employment.\n. . . [T]he fact that Remley\u2019s 1934 injury did not result in a loss of earning capacity is not of paramount importance, because the act provides a fixed schedule of payments for an injury to the hand. Secondly, a rule denying apportionment as between two injuries is not necessarily a desirable one for all workmen.\nThe overall benefits to be obtained by apportionment were also noted in Corbit v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184 (1974), and Wooten v. Mohawk Rubber Co., et al., 259 Ark. 837, 536 S.W. 2d 734 (1976). Cf., O.K. Processors v. Dye, 241 Ark. 1002, 411 S.W. 2d 290 (1967).\nWe cannot tell what formula the court would have used for apportionment in the Remley case had there been total disability. The appellant-employer there contended it was responsible only for 15% disability suffered in its employ. The ultimate statement in the portion of the opinion dealing with this problem was as follows:\nTherefore the appellee\u2019s recovery for the functional loss caused by the second injury cannot under the statutory language [Ark. Stat. Ann. \u00a7 81-1313 (f) (2)i. (Repl. 1976) ], include the functional loss caused by the first injury.\nThe sentence quoted above refers to \u00a7 81-1313 (f) (2)i. That subsection applies only in instances where there has been a second injury to the \u201csame member.\u201d Subsection (f) (2)iii provides that \u201c[i]f an employee who had previously incurred permanent partial disability through the loss of one ... leg . . . incurs prmanent total disability through the total loss of another member, ... he shall be paid in addition to the compensation for permanent partial disability provided in \u00a7 13(c) . . . additional compensation. ...\u201d The \u201cadditional compensation\u201d is to be taken from the second injury fund which is not available in this case.\nThus, the legislative apportionment policy our supreme court found in the Remley case is equally prevalent in cases of total disability resulting from total loss of a second member resulting in total disability. It should apply here also, even though the total disability results from less than total loss of the second member. Despite the lack of specific statutory language, the legislative policy clearly is that the employer should not be responsible for a disabling, scheduled injury an employee sustained before going to work for the employer in question. A logical extension of that premise is that an employer should also not be responsible for that portion of total disability attributable to the previous injury.\nThe prevailing opinion affirms the commission\u2019s decision, including that portion which recognizes that, at the end of the employer\u2019s apportioned responsibility, further payments due the claimant for his total disability will be made from the Death and Permanent Total Disability Bank Fund. Ark. Stat. Ann., \u00a7 81-1310(c)(2) (Supp. 1979). This, of course, is an appropriate recognition that it should make no difference to the claimant in this case whether he is compensated by his employer or his employer\u2019s carrier or the Fund. And yet, near the conclusion of the prevailing opinion, there are references to limiting the claimant\u2019s recovery and \u201cpenalizing a handicapped employee,\u201d suggesting that an apportionment of any of the claimant\u2019s entitlement would be unfair and \u201cdeleterious\u201d to him. These remarks are inconsistent with the action taken by the commission and approved by the prevailing judges.\nIt is grossly unfair to the appellant-employer to apportion the maximum $50,000 liability so that it bears all of the responsibility for that amount except $10,500. The total disability of the employee was caused by two physical factors. First, the employee lost a leg in an accident which occurred long before he became employed by the appellant. The second factor is the 40% disability incurred to the remaining leg while the claimant was employed by the appellant. To say that the latter factor is or should be regarded as the major (79%) contributor to the total disability is to ignore reality, even though some factors other than physical may enter into the total disability determination. The prevailing opinion saddles the latest employer with the lion\u2019s share of the responsibility even though the physical injury for which he is responsible is by far the lesser of the physical causes of the disability.\nAs we have no apportionment statute, and as we cannot tell what formula our supreme court might use in a total disability case, it becomes incumbent upon us to devise a formula which will treat the parties fairly and consistently with what we can discern to be legislative policy. In this case the appellant-employer should be wholly responsible for that portion of the total disability which consists of the scheduled disability to the leg injured while the claimant was employed by the employer, i.e., 50 weeks at $84.00 per week or $4,200. As noted above, an employer whose employee sustains total disability in a case where there is no contributing scheduled disability is responsible to the maximum extent of $50,000. Ark. Stat. Ann., \u00a7 81-1310(c)(2) (Supp. 1979). By subtracting $4,200 from $50,000 we obtain a remainder of $45,800. That amount should be apportioned between the employer and the Fund.\nAs the scheduled disability to the remaining leg is 29% of the combined value of the two injuries in accordance with the schedule, [$4,200 equals 29% X ($4,200 + 10,500) ], we should apportion the remaining disability $45,800) by requiring the employer to pay 29% of that figure or $13,282. Thus, the employer should pay weekly benefits up to a total of $13,282 plus $4,200, or $17,482, with further payments to be made, as the commission held, from the Fund. The use of this formula would effectively apportion both the direct, physical and the other contributing factors in the total disability in accordance with the evaluation of the physical injuries by the statutory schedule.\nI would reverse and remand for revision of the commission\u2019s order.\nChief Judge Wright and Judge Hays join in this dissenting opinion.", "type": "dissent", "author": "David Newbern, Judge," } ], "attorneys": [ "Daggett, Daggett & Van Dover, by: Jesse B. Daggett, for appellant.", "Mike J. Etoch, Jr., for appellees." ], "corrections": "", "head_matter": "CHICAGO MILL & LUMBER COMPANY, Employer v. Starline GREER, Employee, and STATE of Arkansas, Second Injury Fund\nCA 80-104\n601 S.W. 2d 583\nCourt of Appeals of Arkansas\nOpinion delivered July 2, 1980\nReleased for publication July 8, 1980\nDaggett, Daggett & Van Dover, by: Jesse B. Daggett, for appellant.\nMike J. Etoch, Jr., for appellees." }, "file_name": "0895-01", "first_page_order": 935, "last_page_order": 947 }