Second Injury Law,
OLD AND NEW Part 11/
SECOND INJURY LAW YET TO COME by W. W. Bassett, Jr.
(Editor's Note: This article is the final of the three-part series on Second Injury Law taken from the keynote speech by W. W. Bassett, Jr. of Fayetteville, during the 1982 Worker's Compensation Institute. Part I and Part /I appeared in the January 1983 and April 1983 issues of The Arkansas Lawyer, respectively.) This brings us then to the third and final phase of Second Injury Law, that being the Second Injury Law Yet To Come. I have characterized this part of the talk as the Second Injury Law Yet To Come because very few cases interpreting the 1979 or 1981 Amendment have yet reached the administrative process much less the Court of Appeals or Supreme Court. As we all know, the Legislature first enacted Act 253 of 1979 which applies only to all cases between January 1st, 1981 and March 1st, 1981. It appears to me that the language in the amendments reveal their avowed purpose. The first paragraph is introductory in nature only but gives us insight into the probable legislative intent of the framers of the Act. The significance of this Section is that it makes it clear that the purpose of the Fund is to protect not only the claimant but the employer as well. The Act specifically states the employee is to be fully protected with the fund paying the difference between the employer's liability and the balance of disability or impairment which results from all disabilities combined. The Statute points out that the worker is to be fully protected. 122/Arkansas Lawyer/July 1983
Another important factor about the introductory paragraph is that for the first time, there is a distinction between the words of art "disability" and "impairment". In the past, when the word "disability" was used by the Commission, the Courts or for that matter the Legislature, there always arose some confusion as to whether their use of this word was "all disabilities and conditions" or whether the declarant was really referring to "impairment" only. By use of the word "disability" or "impairment" throughout the entire text of the new law, the Framers of the Act seem to emphasize that the concepts of "disability" and "impairment" are separate and distinct and should be treated as such. You should also particularly note that latent conditions, not known to the employee or employer may not be considered previous disabilities or impairments which will trigger or give rise to a claim against the Fund. Now, keep in mind that the 1979 Act was in effect for approximately 60 days. Most probably, there were several hundred injuries occurring during this period of time and perhaps only a few will ultimately involve the application of the Second Injury Fund. In my opinion, the 1981 Act was an attempt by the Legislature to clear up some of the ambiguities that were raised between when the 1979 Act was first written and when it was to go into effect. The actual new, sweeping, revolutionary legislation was contained in the 1979 Act. All the 1981 Act did was merely "track" the 1979 Act with only minimal changes but, these changes were indeed significant. We
have already mentioned one such significant change and that is the use of the words "impairment" after the word disability. The significance of adding the word "impairment" is that this addition clearly limits the liability of a second employer to merely the impairment (not disability) as a result of the second injury. Let's say our Pal Harry had an injury in 1971 and received a 10% functional assessment and then had a second or subsequent injury in 1981 for which he received an additional permanent disability of 10%. Very simply, Harry's 1971 injury is added to his 1981 injury and he is determined to have a combined disability. However, the combination of these two disabilities (and after all this is the underlying reason for the Second Injury Concept at all) is in excess of what the functional or anatomical disability would be. Very simply, 10 and 10 equal 20 from an "impairment" or anatomical standpoint but 10 and 10 do not equal 20 from a "Disability" or a loss of earning capacity standpoint. Harry's permanent disability (not impairment now) could be, say, 80% to the body when loss of earning capacity is considered. Under the new Law, the employer at the time of the second injury pays only for the "anatomical impairment" as a result of that injury and the second injury fund pays for any increase in "disability". Under the 1979 Act, it was indeed unclear as to how much disability the second employer was obligated to pay. Again, the effect of the 1981 Amendment is substantial. Now I should add that under the old Law, Harry's claim was