dissenting:
T1 The issue in this case is whether a Crumby finding of preexisting disability qualifies an injured employee as a "previously impaired person," as defined by 85 O.S. Supp. 2005, § 171, for purposes of recovery from the Multiple Injury Trost Fund. A Crumby finding identifies preexisting disability of an injured worker and is "material in determining [the employer's] liability for injuries attributable only to the last accident." J.C. Penney Co. v. Crumby, 1978 OK 80, ¶ 16, 584 P.2d 1325, 1331. By statute, "The employer shall be liable only for the, degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment." 85 O.S. Supp. 2005, § 172. In providing this limitation, the Legislature also recognized that increased disability may result from combining preexisting disability with disability from the job-related injury, and created the Multiple Injury Trust Fund to compensate employee in certain cases of such increased disability.
12 The controversy over using a Crumby finding to determine the liability of the Fund stems from the language in § 171 that requires an employee with preexisting disability to meet the statutory definition of a "previously ' impaired person." The pertinent portion of the statutory definition applicable to the case at hand is "a person who has ... any previous adjudications of disability adjudged and determined by the Workers' Compensation Court." The Fund contends that this language means the preexisting disability of the injured employee must have been adjudicated prior to the "subsequent injury" being adjudicated. The Fund argues that a Crumby finding cannot meet this requirement, because it is made in the same proceeding where the disability due to the "subsequent injury" is determined.
183 While this is a reasonable interpretation, it assumes that the "subsequent injury" is the event or point in time that a "previous adjudication" must -precede. It is equally reasonable that the Legislature intended that the "previous adjudication" need only precede an action for the adjudication of the liability of the Fund.
T4 As the Crumby case points out, "[The] Fund's liability does not attach unless and until the extent of the [employer's] primary obligation [for the job-related injury] stands judicially determined by an award against the employer." Crumby, ¶ 10, 584 P.2d at 1329. An action or proceeding to determine the liability of the employer and to make an award for. the job-related injury comes before, and is separate and distinct from, an action or proceeding to adjudicate the Fund's liability, Workers' Compensation Court Rules 10 & 11, 85 0.8. Supp, 2010, Ch. 4, App. R
15 In an action to determine the lability of the Fund under section 172(B)(8), the issue is whether "such combined disabilities constitute permanent total disability." Use of "such" in this context refers back to a *508more specific statement identifying the "combined disabilities." This more specific delineation of "combined disabilities" is set forth in subsection A(1).
T6 This provision sets forth the elements that an employee must prove in order to "receive compensation on the basis of such combined disabilities from the Multiple Injury Trust Fund." At the time of the action or proceeding against the Fund, a claimant must show he or she (1) is a "physically impaired person" (ie. have a previous adjudication of preexisting disability, including a Crumby finding), (2) has received "an accidental personal injury compensable under the Workers' Compensation Act" (Le. the last injury), and (8) has "additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone." Again, in the case at hand, this third element is permanent total disability.
17 While it is true that Special Indemmity Fund v. Carson, 1993 OK 64, 852 P.2d 157, supports the Fund's interpretation of "previous adjudication," the dissenting opinion in Carson correctly points out that this interpretation results in different treatment of employees with preexisting disabilities who sustain job-related injuries. A classification of injured employees that creates preference for some and unequal treatment of others offends Article 5, Section 46 of the Oklahoma Constitution, Ponca Iron & Metal, Inc. v. Wilkinson, 2010 OK 75, ¶ 7, 242 P.3d 534.
T8 Based on the foregoing considerations, I would hold that a Crumby finding does qualify an injured worker as a "previously impaired person" for purposes of seeking recovery from the Multiple Injury Trust Fund. Accordingly, the Workers' Compensation Court did not err in using the Crumby finding in the case at hand to award permanent total disability. Therefore, I respectfully dissent.