dissenting. I dissent from that part of the prevailing opinion that affirms the Commission’s decision that the Second Injury Fund bears no liability in this case. In my judgment, the Commission’s opinion, as well as that of the prevailing judges, flies in the face of the Arkansas Supreme Court’s decision in Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).
In order for the Second Injury Fund to have liability, three prerequisites must be met: (1) the employee must have suffered a compensable injury at his present place of employment; (2) prior to that injury, the employee must have had a permanent partial disability or impairment-, and (3) the disability or impairment must have combined with the recent compensable injury to produce the current disability status. Mid-State Construction Co. v. Second Injury Fund, supra; Ark. Code Ann. § 11-9-525(b)(3) (1987). Here, the Commission determined that the appellant employer successfully established the first two prongs of the above test. However, the Commission concluded that the third prong had not been established because the claimant returned to work without restrictions after the 1990 injury that initially caused his disc protrusion; the claimant’s condition was apparently asymptomatic prior to the 1992 on-the-job injury; and surgery did not become necessary until after the last injury. In effect, then, the Commission held that it would not find that a prior impairment and a work-related injury had combined to produce one’s current disability status unless and until there was proof that the pre-existing impairment, alone, had resulted in some disability. This was wrong.
In Mid-State Construction Co., supra, the supreme court went to great lengths to correct an error that was consistently being made by the court of appeals. Several decisions of this court had held that, to meet the second prong of the test to determine Second Injury Fund liability, a claimant’s pre-existing condition must have involved a loss of earning capacity. In Mid-State Construction Co., the supreme court overruled those cases so holding. The court pointed out that the term “disability” is, in fact, defined to involve a loss of earning capacity. However, the court very clearly held that a prior “impairment” need not have been causing any loss of earning capacity.
Where, as here, the Commission denies relief on grounds that the party with the burden of proof has failed to sustain that burden, we should affirm under the substantial evidence standard of review only if the Commission’s opinion displays a substantial basis for the denial of relief. See Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995); Marcoe v. Bell International, 48 Ark. App. 33, 888 S.W.2d 663 (1994); Bryan v. Best Western / Coachman’s Inn, 47 Ark. App. 75, 885 S.W.2d 28 (1994). The only bases stated by the Commission for the denial of relief to the employer in this case revolve around the claimant’s ability to work without surgery or restrictions after the 1990 injury and the fact that he was relatively asymptomatic until the 1992 work-related injury. By focusing exclusively on the claimant’s physical abilities and/or lack of disabilities prior to the 1992 injury, the Commission has effectively made prior loss of earning capacity a prerequisite to Fund liability. In other words, the Commission has read into the third prong of the test and made determinative the very condition that the supreme court in Mid-State Construction Co. stated was not required. This would have the effect of rendering the holding in Mid-State Construction Co. void.
Robbins, J., and Bullion, Special Judge, join in this dissent.