¶36 (dissenting) — Under certain circumstances, a self-insured employer is allowed to avoid the full responsibility of paying benefits for an industrial injury sustained by a worker while working for that employer. To obtain relief from what is called the second injury fund, the employer must prove that the injured has a “previous bodily disability.” RCW 51.16.120(1). The majority defines this term as any condition that substantially impaired the worker’s ability to function at some point in the past, even if the worker was fully functional at the time of the most recent injury. The majority opinion is not only inconsistent with precedent, it will have the fiscally unfortunate effect of depleting the second injury fund. I respectfully dissent.
Becker, J.¶37 The employee, Robert Lee, had a strenuous 22-year career as an electrical lineman. The injury that rendered him totally unable to work occurred in October 1992, while he was working for Puget Sound Energy (PSE). Before that, he sustained several back and upper body injuries and often had the experience of working through pain. Nevertheless, he kept on working at the hardest physical jobs, those that could be performed only by people in top physical shape.
¶38 At the time of his serious injury in October 1992, Lee was in exactly the same situation as the longshoreman described in Rothschild International v. Department of Labor & Industries, 3 Wn. App. 967, 478 P.2d 759 (1970). There was no evidence that any previous injury he sustained “had been other than temporarily disabling,” and up to the time of his final injury, he was doing everything required of his job. Rothschild, 3 Wn. App. at 969. Even Dr. Gritzka, the physician whose testimony is the principal *893support for PSE’s position, agreed that Lee’s physical condition in October 1992 was not such as to disable him from work.
¶39 In Rothschild, the worker had previously sustained several back sprains and injuries to his shoulder and foot. These previous injuries had left him with a “latent” nondisabling condition — “a traumatic neurosis which was a latent threat because of his age, general frailty, and general physical condition.” Rothschild, 3 Wn. App. at 970. The employer at the time of the final injury was denied second injury fund relief because of a failure to show that the preexisting condition was actually disabling. Evidence of a prior infirmity is not enough.
¶40 The majority states that Lee’s case is different from Rothschild because a jury might conclude that he had “ongoing, intermittent symptoms from previous injuries that substantially impaired his ability to function.” Majority at 883. The record, however, shows that Lee was a fully functional worker through the years up to the time of his 1992 accident. From time to time he had nagging pains, but he did not take time off; he simply took medication, used ice packs, and kept on working.
¶41 Lee did not experience a loss of earning power as a result of his earlier injuries. When he went to work for PSE he needed no accommodations, was not suffering backache or neck pain, was not taking medications, did not feel any effects from his previous accidents, and was performing heavy manual labor without restrictions or functional impairment. Dr. Gritzka testified that before October 1992 Lee was able to continue working at his usual job “in spite of whatever might have been diagnosably wrong with him. . . . [Sjome people can have terrible looking x-rays and might even have a ratable impairment by x-ray criteria, but nevertheless go about doing whatever they want.”
¶42 PSE did not hire a handicapped person. Lee himself said there was nothing physical he could not do before the injury he sustained while working for PSE. He testified, “I have been hurt, obviously, throughout my life, but I was in *894good shape. I could do 50 one hand push-ups, do 50 on the other side, go back and do a second 50. I could do 1500 flutter kicks in the morning.”
¶43 Counsel for PSE managed to elicit from Lee his acknowledgement that after the earlier injuries, from time to time he had to call upon his union brothers to help him do lifting and tugging. PSE makes far too much of this testimony. It would be a rare individual who, after a lifetime of physical labor, would not say the same. If such evidence is enough to establish that a worker has a “previous bodily disability,” the door to second injury fund relief will be thrown wide open and there will be nothing left of it.
¶44 Following Rothschild, I would deny second injury fund relief to PSE because there is no evidence that the previous injuries suffered by Lee were more than temporarily disabling.
Review granted at 167 Wn.2d 1009 (2009).