dissenting. The appellant asks only that the apportionment of its liability be done in a fair manner. The prevailing opinion (there is no majority in this case) affirms apportionment by the workers’ compensation commission in a manner I view as being grossly unfair to the appellant.
There is no direct statutory authority for apportionment of liability for total disability. However, the Arkansas Supreme Court has approved the doctrine of apportionment, at least in cases where it is necessary to divide responsibility between two employers. International Paper Company v. Remley, 256 Ark. 7, 505 S.W. 2d 219 (1974).
In the Remley case Justice George Rose Smith’s opinion dealt with an employee who had sustained a 20% permanent partial disability of the hand before going to work for the appellant-employer. He thereafter sustained an additional 15% permanent partial disability to the same hand a a result of a compensable injury. The commission’s decision, which was affirmed by the circuit court, awarded compensation against the employer for the entire 35% disability on the theory that apportionment would be contrary to the general purposes of the act. The supreme court reversed that holding. Justice Smith said:
. . .[W]orkers as a whole will not always benefit in the long run by a rule of non-apportionment that makes an employer liable for the total consequences of a second injury, as if the first injury had not occurred. Such a rule might easily make it hard for the victims of a first injury to find re-employment.
. . . [T]he fact that Remley’s 1934 injury did not result in a loss of earning capacity is not of paramount importance, because the act provides a fixed schedule of payments for an injury to the hand. Secondly, a rule denying apportionment as between two injuries is not necessarily a desirable one for all workmen.
The overall benefits to be obtained by apportionment were also noted in Corbit v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184 (1974), and Wooten v. Mohawk Rubber Co., et al., 259 Ark. 837, 536 S.W. 2d 734 (1976). Cf., O.K. Processors v. Dye, 241 Ark. 1002, 411 S.W. 2d 290 (1967).
We cannot tell what formula the court would have used for apportionment in the Remley case had there been total disability. The appellant-employer there contended it was responsible only for 15% disability suffered in its employ. The ultimate statement in the portion of the opinion dealing with this problem was as follows:
Therefore the appellee’s recovery for the functional loss caused by the second injury cannot under the statutory language [Ark. Stat. Ann. § 81-1313 (f) (2)i. (Repl. 1976) ], include the functional loss caused by the first injury.
The sentence quoted above refers to § 81-1313 (f) (2)i. That subsection applies only in instances where there has been a second injury to the “same member.” Subsection (f) (2)iii provides that “[i]f an employee who had previously incurred permanent partial disability through the loss of one ... leg . . . incurs prmanent total disability through the total loss of another member, ... he shall be paid in addition to the compensation for permanent partial disability provided in § 13(c) . . . additional compensation. ...” The “additional compensation” is to be taken from the second injury fund which is not available in this case.
Thus, the legislative apportionment policy our supreme court found in the Remley case is equally prevalent in cases of total disability resulting from total loss of a second member resulting in total disability. It should apply here also, even though the total disability results from less than total loss of the second member. Despite the lack of specific statutory language, the legislative policy clearly is that the employer should not be responsible for a disabling, scheduled injury an employee sustained before going to work for the employer in question. A logical extension of that premise is that an employer should also not be responsible for that portion of total disability attributable to the previous injury.
The prevailing opinion affirms the commission’s decision, including that portion which recognizes that, at the end of the employer’s apportioned responsibility, further payments due the claimant for his total disability will be made from the Death and Permanent Total Disability Bank Fund. Ark. Stat. Ann., § 81-1310(c)(2) (Supp. 1979). This, of course, is an appropriate recognition that it should make no difference to the claimant in this case whether he is compensated by his employer or his employer’s carrier or the Fund. And yet, near the conclusion of the prevailing opinion, there are references to limiting the claimant’s recovery and “penalizing a handicapped employee,” suggesting that an apportionment of any of the claimant’s entitlement would be unfair and “deleterious” to him. These remarks are inconsistent with the action taken by the commission and approved by the prevailing judges.
It is grossly unfair to the appellant-employer to apportion the maximum $50,000 liability so that it bears all of the responsibility for that amount except $10,500. The total disability of the employee was caused by two physical factors. First, the employee lost a leg in an accident which occurred long before he became employed by the appellant. The second factor is the 40% disability incurred to the remaining leg while the claimant was employed by the appellant. To say that the latter factor is or should be regarded as the major (79%) contributor to the total disability is to ignore reality, even though some factors other than physical may enter into the total disability determination. The prevailing opinion saddles the latest employer with the lion’s share of the responsibility even though the physical injury for which he is responsible is by far the lesser of the physical causes of the disability.
As we have no apportionment statute, and as we cannot tell what formula our supreme court might use in a total disability case, it becomes incumbent upon us to devise a formula which will treat the parties fairly and consistently with what we can discern to be legislative policy. In this case the appellant-employer should be wholly responsible for that portion of the total disability which consists of the scheduled disability to the leg injured while the claimant was employed by the employer, i.e., 50 weeks at $84.00 per week or $4,200. As noted above, an employer whose employee sustains total disability in a case where there is no contributing scheduled disability is responsible to the maximum extent of $50,000. Ark. Stat. Ann., § 81-1310(c)(2) (Supp. 1979). By subtracting $4,200 from $50,000 we obtain a remainder of $45,800. That amount should be apportioned between the employer and the Fund.
As the scheduled disability to the remaining leg is 29% of the combined value of the two injuries in accordance with the schedule, [$4,200 equals 29% X ($4,200 + 10,500) ], we should apportion the remaining disability $45,800) by requiring the employer to pay 29% of that figure or $13,282. Thus, the employer should pay weekly benefits up to a total of $13,282 plus $4,200, or $17,482, with further payments to be made, as the commission held, from the Fund. The use of this formula would effectively apportion both the direct, physical and the other contributing factors in the total disability in accordance with the evaluation of the physical injuries by the statutory schedule.
I would reverse and remand for revision of the commission’s order.
Chief Judge Wright and Judge Hays join in this dissenting opinion.