State Treasurer, Second Injury Fund v. Coleman

Melvin Mayfield, Judge,

concurring. I want to concur in this case in order to emphasize a point that I think is important. While it is true that two doctors gave the appellee anatomical disability ratings resulting from his first injury, no witness, including the appellee, testified that the first injury was causing the appellee any loss of earning capacity at the time he sustained the second injury. Also, the fact that the owner of the business where appellee was employed at the time of his second injury testified he would not have hired appellee had he known of his first injury is not substantial evidence that appellee’s first injury was causing him any loss of earning capacity.

As we said in Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985), the purpose of Ark. Stat. Ann. § 81-1313(i) (Supp. 1985) is to encourage the employment of handicapped workers by providing that in the event of injury to those workers the employer will not have to pay for any more disability than actually incurred in his employment; see Chicago Mill & Lumber Co. v. Greer, 270 Ark. 672, 606 S.W.2d 72 (1980), and 2 Larson, The Law of Workman’s Compensation § 59.31(a) (Rel. 32-2/ 81), but the purpose is not to give a windfall or subsidy to those employers.

In the instant case, I am in complete agreement with the following statement in the Second Injury Fund’s brief:

There are very few, if any, Arkansas workers who are completely free of any degree of medical or anatomical impairment to every part of their body. Thus, to adopt Appellee’s contention and the decision of the Commission would warrant SIF exposure in virtually every Worker’s Compensation case, bankrupt the SIF, and not serve to encourage the employment of truly handicapped workers.