dissenting. While I dissent from the majority opinion, I might mention one point upon which all of us can agree: The Second Injury Fund law (Fund law) is poorly worded, subject to more than one reasonable interpretation and is in desperate need of remedial legislation. Because the new Fund law is ambiguous in parts, the majority has devoted most of its attention to what it believes the General Assembly intended by the law’s enactment. The basic, overall premise upon which I disagree with the majority’s opinion is that I believe my colleagues have artifically placed handicapped workers into two unequal categories: One in which the employer is induced to hire the handicapped worker who previously incurred his or her injury while employed by another employer; and a second in which that same employer, who employs a worker who sustains his or her first injury while in that employment, is induced to fire that injured or handicapped employee in an attempt to avoid liability for a prospective second injury. Under the majority’s interpretation of the new Fund law, the employer in the first category is relieved of liability for any greater disability or impairment than actually occurred while the employer employed the worker. The employer in the second category must pay for all the employee’s claims because both of the employee’s injuries were sustained when working for the same employer.
The majority court reasons that handicapped workers in the second category will not be terminated or released because the Workers’ Compensation Act (Act) contains sanctions against any employer who retaliates against an employee for filing a claim. See Ark. Stat. Ann. § 81-1335(b) (Repl. 1976). Of course, no provisions of the Act compel an employer to retain or rehire an employee. Besides, the employee is still placed in the position of showing his dismissal was the result of filing a workers’ compensation claim. The majority further reasons that an injured worker who is dismissed might be found, as a result of such disability, totally disabled. Again, the burden is the employee’s to show total disability and that burden is far greater, as we all know, than merely proving he or she was not retained after sustaining an injury.
To further support its interpretation of the new Fund law, the majority emphasizes the law was not intended to give a windfall or subsidy to employers who employ handicapped workers. I must totally disagree on this point since it is the employers themselves who contribute to the Fund. Through that Fund, the employers are sharing the risk for those employees’ second injuries which meet the specific or narrow requirements set forth in Ark. Stat. Ann. § 81-1313(i) (Supp. 1985) as interpreted by our earlier decisions in Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985) and Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985). In a companion case to the one here, Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639 (1986), our Court’s majority also infers the Fund might become insolvent if this Court adopts an interpretation of the Fund law that permits employers to seek Fund relief in instances where injured or handicapped workers sustain both the first and second injuries while with the same employer. The majority’s inference is not based on any evidence before this Court, and while I believe the Fund’s solvency might be a legitimate concern, I am of the opinion the General Assembly can and will address it if that concern becomes a reality. Under any circumstances, it is not this Court’s role to presume the General Assembly will allow the Funds to deplete so that injured workers will be precluded from benefits. In any event, we should not decide the issues presented here based upon such policy decisions when such decisions are best left to a legislative body. In sum, I cannot agree with the underlying reasons for the majority’s decision to treat differently the worker who sustained first and second injuries when employed by the same employer from the handicapped or injured worker who was employed by a second employer when the worker sustained a second injury.
Neither do I believe the statutory construction of the new Fund law dictates the result reached by the majority. Section 81-1313, as amended by Act 290 of 1981, governs the second injury sustained by appellant, Harry L. Brown, since Act 290 was effective March 3, 1981, and Brown’s second injury occurred on March 30,1981. Act 290 is compiled as section (i) of § 81-1313; that section had been newly created by Act 253 of 1979. Section 1313(i) states in pertinent part:
Commencing January 1, 1981, all cases of permanent disability or impairment where there has been previous disability or impairment shall be compensated as herein provided. (Emphasis supplied.)
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From the foregoing language, § 81-1313(1) clearly governs all claims and second injury issues after January 1,1981. It does not exempt or except claims based upon injuries in the same employment. Instead, same employment injuries are mentioned as follows in paragraphs (3) and (4) of § 1313(i):
(3) If more than one (1) injury in the same employment causes concurrent temporary disabilities, weekly benefits shall be payable only for the longest and largest paying disability.
(4) If more than one (1) injury in the same employment causes concurrent and consecutive permanent partial disability, weekly benefits for each subsequent disability shall not begin until the end of the compensation period for the prior disability.
In my opinion, § 1313(i) clearly covers and includes injuries in the same employment, and to accept the Fund’s argument, adopted by the majority court, frustrates the true, underlying purpose of the Fund law which is to encourage employers to allow injured or handicapped workers to be employed.
Because I believe the Commission correctly determined the Fund’s liability for Brown’s disability, I would affirm.
Cloninger, J., joins in this dissent.