concurring. I concur in the majority opinion in this case. The Commission has simply applied the law as declared by a panel of this court in Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985), and by the unanimous opinions of this court sitting en banc in the cases of Second Injury Fund v. Girtman, 16 Ark. App. 155, 698 S.W.2d 514 (1985), and Second Injury Fund v. Fraser-Owen, Inc., 17
Ark. App. 58, 702 S.W.2d 828 (1986).
While one might differ in judging the preponderance of the evidence in the instant case, the law applied by the Commission has been settled and the Commission’s factual finding is clearly supported by substantial evidence.
Moreover, the opinion of the Commission demonstrates that it thoroughly understands the law set out in the above cases and that it will not hesitate to hold the Second Injury Fund liable in a proper case.
Tom Glaze, Judge, dissenting. The majority decision rings the “death knell” for the Second Injury Fund (SIF). The majority claims our holding in Osage Oil Company v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985) dictates the result it reached here, but such an assertion is clearly erroneous. In Osage, we did — as the majority here points out — hold that before the SIF can become liable, the claimant must have suffered a preexisting injury which resulted in a loss of earning capacity, not a mere anatomical loss. There, the claimant presented no evidence of loss in earning capacity that resulted from an earlier injury, so we determined the SIF was not involved. Here, I submit, the evidence is overwhelming that the claimant, Harmon, sustained substantially limiting injuries prior to his July 15,1982, compen-sable injury.
In 1954, Harmon first was hurt in a truck accident and received a permanent partial disability in the amount of ten percent to the body as a whole. In 1963, he received an additional fifteen percent permanent partial rating resulting from a spinal fusion. When Harmon sustained his July 15,1982, injury, which resulted in his receiving a rating of five percent to the body as a whole, he was fifty-two years old, had a fourth grade education, and had worked only on jobs which might be described as general labor (with the exception of a mechanics job he once held). Under the rationale of Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), I believe the evidence in the instant case clearly requires a finding that Harmon suffered a wage-loss in some degree, at least, from the pre-existing injuries he sustained in 1954 and 1963. To find otherwise, I believe, is clearly erroneous. If the SIF had not been involved, I feel the Commission surely would agree with my analysis of Harmon’s prior condition.
The majority justifies its position on the basis that the record revealed that Harmon did not experience a decrease in his capacity to earn wages. Of course, it is established Workers’ Compensation law that a claimant’s earning of increased wages after an injury is not determinative of whether that claimant has suffered a loss in earning capacity. Here, Harmon obviously experienced a decrease in his capacity to earn wages. In fact, the administrative law judge determined that the combined effect of all Harmon’s injuries caused Harmon to be totally and permanently disabled, and the Commission only disagreed with the extent of disability found by the law judge, finding Harmon’s permanent disability to be seventy percent to the body as a whole. The Commission’s final award reveals its true underlying view of the severe limitations Harmon sustained by his pre-existing injuries, since the evidence reflects he received no more than a five percent disability attributable to his present or July 15, 1982, injury. Given the evidence and the Commission’s analysis of it in making its final award, I believe it is incredulous that SIF was not liable for a portion of Harmon’s benefits. If the SIF is not liable on these facts, doubtless it ever will be liable.
Cloninger, J., joins in this dissent.