dissenting. I respectfully dissent. Although the majority claims it reviewed the evidence in the light most favorable to the Commission’s decision, I suggest it actually gives no credence or weight to that evidence which supports the Commission’s findings.
The Court holds no substantial evidence exists to support the Commission’s finding, that Coleman’s first injury independently produced some degree of permanent disability both before and after his last injury. It further concludes, I believe inaccurately, that there is no evidence that Coleman sustained a loss of earning capacity due to his first injury incurred while at Brown and Root, Inc.
By joint petition, Coleman settled his first injury claim with Brown and Root, Inc. for the sum of $12,000.00 plus medical expenses. While no specified anatomical loss was assigned Coleman in this petition (or the Commission’s order approving it), two doctors, DeSaussure and Thomas, later gave Coleman a partial permanent disability rating which they related to his first injury. These ratings were assigned after the doctors treated and evaluated him for his second injury, sustained at Hardwick Airmasters (Hardwick). Specifically, Dr. DeSaussure rated Coleman’s partial permanent disability from the first injury at 15%, and increased it by 10% as a result of the second injury. Dr. Thomas, who performed surgery on Coleman, gave Coleman a partial permanent disability rating of 10% as a result of the first injury, and an additional 15% as a result of the second.
In this cause, Hardwick’s owner testified he would not have hired Coleman if he had known of Coleman’s preexisting condition. See State of Arkansas, Second Injury Fund v. Girtman, 16 Ark. App. 155, 698 S.W.2d 514 (1985) (wherein this Court reversed the Commission’s decision that the Fund was liable, finding that there was no evidence that Girtman had ever been turned down for similar employment nor any evidence that his earning capacity had been reduced by his first injury). One must completely ignore Hardwick’s testimony, and the medical evidence that establishes the permanency and compensability of Coleman’s first injury, in order to hold — as did the majority — that Coleman did not suffer a loss of earning capacity or a disability or impairment required under Ark. Stat. Ann. § 81-1313(i)(l) (Supp. 1985). In sum, Coleman, after and as a result of his first injury, received compensation and medical benefits, and a partial permanent rating from two doctors — all of which caused Hardwick to say it would not have hired him if it had known of his earlier condition. Because I believe substantial evidence supports the Commission’s finding, I would affirm.
The Fund raises a second issue on appeal: In order for the Fund to be held liable, must both the employer and employee have known of the prior disability or impairment? The Fund contends that under Ark. Stat. Ann. § 81-1313(i) (Supp. 1985), any conditions not known by the employer are latent conditions for which the Fund is not liable. Section 81-1313(i), in pertinent part, provides:
It is intended that latent conditions, which are not known to the employee or employer, not be considered previous disabilities or impairments which would give rise to a claim against the Second Injury Fund. (Emphasis added.)
The Fund argues that, unless this is read as requiring both the employee and employer to know of the disability, the purpose of the Second Injury Fund is not effectuated. I disagree, but since the majority fails to reach or address this point, I will give only a condensed version of the reasons for my disagreement.
The General Assembly, in § 81-1313(i), clearly stated that latent conditions should not be known by the employer or employee. In its ordinary sense, the word, ‘or,’ is a disjunctive particle that marks an alternative, generally corresponding to ‘either,’ as ‘either this or that’; it is a connective that marks an alternative. See Beasley v. Parnell, 177 Ark. 912, 9 S.W.2d 10 (1928). The court in Beasley also remarked that when words have a settled, legal meaning, it is dangerous to conjecture that they were used in other than their legal signification. Id. at 917-18, 9 S.W.2d at 12. While “and” and “or” can be controvertible, it is well settled that such a substitution may not be made “unless the whole context of the statute requires, plainly and beyond question, that it be done in order to give effect to the intention of the Legislature.” Id. at 917, 9 S.W.2d at 12.
Next, there are good reasons to suggest that the use of “or” in § 81-1313 (i) effectuates the intent of the General Assembly. From my research, I am aware of only one state — in the absence of a statute requiring it — that requires actual employer knowledge of the employee’s previous condition. See McCoy v. Perlite Concrete Co., 53 A.D.2d 749 (1976); Greco v. Greco Electric Co., 52 A.D.2d 1011, 383 N.Y.S.2d 684 (1976). Larson criticizes the New York rule as follows:
The New York rule is defensible only if it is assumed that the exclusive purpose of the second injury principle is to encourage the hiring of the handicapped. This is, of course, the central purpose — but the principle also embraces the idea of achieving this result in a way that works hardship on neither the employer nor the employee. If one did not care about incidental hardship to the employee, one could do the hire-the-handicapped job by merely using an apportionment statute. And if one cares about the element of hardship to the employer, one could argue the employer ought to be relieved of the cost of the preexisting condition, whether he knew of it or not, purely on the ground that the cost of this impairment, not having arisen out of this employment, should not in fairness fall upon this employer.
A more down-to-earth reason for disapproving the New York rule is that, as we have seen, it involves one of those distinctions that consume far more litigation time and cost than the policy at stake is worth.
2A Larson, Larson’s Workmen’s Compensation Law, § 59.33(e) (1981) (emphasis supplied).
The Fund was established “to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker is in his employment. ...” § 81-1313(i), supra. As is noted by Larson, the employer should be relieved of the cost of the employee’s preexisting condition, regardless of whether or not the employer had knowledge of it. In sum, I would construe § 81-1313(i) just as it reads, requiring knowledge of the preexisting condition on the part of either the employee or employer, but not both.
Because I agree with the Commission, that the Fund is liable in this cause, I would affirm.