Ark. Code Ann. § 11-9-525 (2026)

Research References

Ark. L. Rev.

Case Note, Del Monte Frozen Foods, Inc. v. Harmon: Second Injury Fund Liability for Previous “Impairment” after Osage Oil, 40 Ark. L. Rev. 589.

Leflar, Compensation for Work-Related Illness in Arkansas, 41 Ark. L. Rev. 89.

U. Ark. Little Rock L.J.

Survey—Workers' Compensation, 10 U. Ark. Little Rock L.J. 251.

Survey—Workers' Compensation, 11 U. Ark. Little Rock L.J. 269.

Seventeenth Annual Survey of Arkansas Law — Workers' Compensation, 17 U. Ark. Little Rock L.J. 453.

Case Notes

Constitutionality.

Statutes limiting recovery for permanent total disability resulting from a second injury while working for the same employer, but leaving open ended the recovery for permanent total disability from a single injury are not unconstitutional as an unreasonable classification, since the purpose is to encourage employers to retain injured employees. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974).

In General.

Second Injury Fund liability is premised on the fact that the prior disability is in esse at the time of employment and is neither caused nor contributed to by the employment. Prier Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1988).

Construction.

The term compensation as used in this section refers to money benefits paid to the injured employee for disability. Brooks v. Arkansas-Best Freight Sys., 247 Ark. 61, 444 S.W.2d 246 (1969).

Impairment means loss of earning capacity due to a nonwork-related condition. Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985). But see Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988); State Treasurer, Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985).

The definition of “impairment” no longer includes “non-work-related condition”; there seems to be no real justification for limiting “impairment” to a non-work-related condition. White Consol. v. Rooney, 44 Ark. App. 78, 866 S.W.2d 838 (1993), aff'd, Second Injury Trust Fund v. White Consol., 317 Ark. 26, 875 S.W.2d 834 (1994).

The legislature added the words “or impairment” to make it clear that “non-work-related” conditions were included; by implication, at least, this suggests that “work-related” conditions were already included in the term “disability.” White Consol. v. Rooney, 44 Ark. App. 78, 866 S.W.2d 838 (1993), aff'd, Second Injury Trust Fund v. White Consol., 317 Ark. 26, 875 S.W.2d 834 (1994).

A preexisting impairment under subdivision (b)(5) of this section can be either work related or non-work related. Second Injury Trust Fund v. POM, Inc., 316 Ark. 796, 875 S.W.2d 832 (1994).

Defining “impairment” to necessarily include wage loss is wrong since it would undermine the purpose of the Second Injury Trust Fund to encourage the hiring of handicapped persons. Second Injury Trust Fund v. POM, Inc., 316 Ark. 796, 875 S.W.2d 832 (1994).

The term “impairment” in subdivision (b)(5) of this section is not limited to a condition resulting from a previous injury which caused wage loss, and thus the Second Injury Fund may be liable for a portion of a worker's total disability when permanent total disability results from a second injury to one who suffered “impairment” from a previous injury which did not result in wage loss when it occurred. Second Injury Trust Fund v. White Consol., 317 Ark. 26, 875 S.W.2d 834 (1994).

In construing statutes relating to the Second Injury Fund, the appellate court will interpret them strictly in light of the limited and restricted nature of the Fund and the need to ensure its solvency. Stucco, Inc. v. Rose, 52 Ark. App. 42, 914 S.W.2d 767 (1996), rev'd, Stucco Plus v. Rose, 327 Ark. 314, 938 S.W.2d 556 (Ark. 1997).

Where the claimant has a preexisting injury and incurs a subsequent injury entitling him to total disability benefits, the employer's liability for the claimant's benefits is limited to the subsequent injury alone, and thus its liability is at the permanent partial disability rate. Stucco Plus v. Rose, 327 Ark. 314, 938 S.W.2d 556 (Ark. 1997).

Because § 11-9-1001 discourages judicial lawmaking and because the Court of Appeals must defer to decisions of the Supreme Court, the Appeals Court could not broaden the scope of workers' compensation law so that the Second Injury Fund would become liable for wage-loss disability benefits payable to a disabled worker in the event of successive injuries during the same employment. Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328 (2000).

Purpose.

The purpose of the Second Injury Fund is to encourage the employment of handicapped workers by providing that in the event of injury to those workers the employer will not have to pay for any more disability than actually occurred in his employment, and the purpose is not to give a windfall or subsidy to those employers. Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985). But see Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

The first two sentences of this section expressly state the purposes of the Second Injury Fund statute to limit the employer's liability and simultaneously fully protect an already handicapped employee where he is subsequently injured on the job. State Treasurer, Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985).

The purpose of this section is to ensure that an employer employing a handicapped worker will not be required to pay for a greater amount of disability or impairment than that which the worker sustains while in the employment of that employer. Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639, aff'd, 289 Ark. 509, 715 S.W.2d 429 (1986).

Stretching this section to assume liability for part of the disability or impairment sustained by a handicapped worker while in an employer's employment relieves that employer of part of his statutory liability and grants him a windfall of subsidy; it was not the legislature's intent to give employers that type of encouragement to hire or retain handicapped or injured workers. Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639, aff'd, 289 Ark. 509, 715 S.W.2d 429 (1986).

The very purpose of the Second Injury Fund is to provide relief to an employer who hires a person with prior impairment so that the employer is not to be held responsible for more disability than that caused by that workplace. Prier Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1988).

The underlying purpose of this section is to limit the employer's liability to the amount of disability or impairment suffered by the employee during his employment with that employer, and to thereby encourage hiring of the handicapped. Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990).

The Fund was created by the General Assembly to see to it that a subsequent employer does not become responsible for disability of an employee when a part of his or her condition results from an injury which occurred in previous employment with a different employer. Hawkins Constr. Co. v. Maxell, 325 Ark. 133, 924 S.W.2d 789 (1996).

Applicability.

Second injury compensation provisions do not apply where previous injuries had not contributed to the final permanent total disability. Cooper Indus. Prods., Inc. v. Worth, 256 Ark. 394, 508 S.W.2d 59 (1974).

In order for the second injury provision to apply, it must be found that the previous injury or injuries, combined with a second injury, caused the disability complained of. Wooten v. Mohawk Rubber Co., 259 Ark. 837, 536 S.W.2d 734 (1976); Nall v. Maynard, 271 Ark. 643, 609 S.W.2d 352 (1980).

This section did not apply to injury which occurred prior to the effective date of this section. A.O. Smith-Inland, Inc. v. Dodd, 15 Ark. App. 108, 690 S.W.2d 367 (1985).

The Second Injury Fund is not liable when an employee sustains a second injury while still working for the employer in whose employment he or she sustained the first injury. McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), overruled, Nelson v. Timberline Int'l, 332 Ark. 165, 964 S.W.2d 357 (1998).

If successive injuries in the same employment cause total and permanent disability, the employer or his or her insurance carrier is responsible to the employee for all benefits; however, if the previous disability or impairment does not arise out of the employment by the same employer, the Second Injury Fund must pay the benefits. Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986), overruled, Nelson v. Timberline Int'l, 332 Ark. 165, 964 S.W.2d 357 (1998); Death & Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992).

Liability of the Second Injury Fund comes into question only after three hurdles have been overcome: (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 Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

Once the workers' compensation commission has made a determination of the existence of permanent partial disability, whether as a result of a hearing after the issues have been controverted or on a hearing to approve a joint petition, the issue is not subject to reexamination in the context of the Second Injury Fund statute. Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).

In order to establish liability of the Second Injury Trust Fund, it is necessary to satisfy the three-part test set out in Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988). Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995); Hawkins Constr. v. Maxell, 52 Ark. App. 116, 915 S.W.2d 302 (1996), rev'd, 325 Ark. 133, 924 S.W.2d 789 (1996).

Pursuant to subdivisions (3) and (4), the Second Injury Fund may be subjected to liability if a claimant suffers from a permanent impairment, whether or not the impairment is the result of a compensable injury; it is immaterial whether or not the impairment resulted in any wage-loss disability. Second Injury Fund v. Furman, 60 Ark. App. 237, 961 S.W.2d 787 (1998).

Consistent with the legislative intent to encourage employers to retain employees with disabilities or impairments resulting from a prior injury, the Second Injury Fund is liable for wage-loss benefits resulting from the cumulative effect of successive injures when the claimant sustains injuries in the same employment. Nelson v. Timberline Int'l, 332 Ark. 165, 964 S.W.2d 357 (1998).

Attorney's Fees.

Where Workers' Compensation Commission Second Injury Fund did not controvert claimant's entitlement to compensation, it was not responsible for an attorney's fee in any amount. Buckner v. Sparks Regional Medical Ctr., 32 Ark. App. 5, 794 S.W.2d 623 (1990).

Compensation.

Employees of cleaning establishment who worked for the most part at a ranch owned by insured which was maintained primarily for advertising value were entitled to compensation. Great Am. Indem. Co. v. Bailey, 221 Ark. 469, 254 S.W.2d 322 (1953).

If claimant would have been able to work longer if his injuries had not occurred he is entitled to compensation. Minor v. Poinsett Lumber & Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962).

The full commission's reversal of an award by a referee for inadequacy with direction that the claimant return to a doctor for further treatment and that the matter of the termination of the healing period and the extent of the permanent partial disability be held in abeyance was justified where the medical testimony indicated need for further treatment. Singer Co. v. Johnston, 243 Ark. 679, 421 S.W.2d 341 (1967).

Where the claimant sustained a compensable injury while working at one job, his compensation benefits were properly based on wages from that job rather than on the combined incomes of that job and another held by claimant. Hart's Exxon Serv. Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ct. App. 1980).

In considering the question of Second Injury Fund liability, the claimant's former condition need not have met all elements of compensability under workers' compensation law, former condition and the recent compensable injury cannot both have occurred in the course of the employee's employment with the same employer. Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

There is no specific statutory authority providing for the total exclusion of workers' compensation benefits when a claimant is eligible for or is drawing social security benefits. Curry v. Franklin Elec., 32 Ark. App. 168, 798 S.W.2d 130 (1990).

Computation.

The formula used to determine Second Injury Fund liability in Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990), which involved permanent partial disability (governed by subdivisions (b)(3) and (4) of this section) is not applicable in cases involving permanent total disability (governed by subdivision (b)(5) of this section). Jeffcoat v. Second Injury Fund, 935 S.W.2d 309 (1996).

Evidence.

Evidence insufficient to support award from Second Injury Fund. Arkansas Workmen's Comp. Comm'n v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950); Davis v. Stearns-Rogers Constr. Co., 248 Ark. 344, 451 S.W.2d 469 (1970); Gibson's Disct. Ctr. v. Bornmann, 252 Ark. 24, 477 S.W.2d 171 (1972); Cooper Indus. Prods., Inc. v. Worth, 256 Ark. 394, 508 S.W.2d 59 (1974); Great Plains Bag Corp. v. Ray, 267 Ark. 943, 593 S.W.2d 51 (Ct. App. 1979); Hammer v. Intermed N.W., 270 Ark. 262, 603 S.W.2d 913 (1980); Baldwin v. Club Prods. Co., 270 Ark. 155, 604 S.W.2d 568 (1980); Nall v. Maynard, 271 Ark. 643, 609 S.W.2d 352 (1980); Kemper Ins. Co. v. Buchheit, 271 Ark. 458, 609 S.W.2d 660 (1980); Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985). But see Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988); Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985); State Second Injury Fund v. Girtman, 16 Ark. App. 155, 698 S.W.2d 514 (1985); Masonite Corp. v. Mitchell, 16 Ark. App. 209, 699 S.W.2d 409 (1985); Second Injury Fund v. Fraser-Owens, Inc., 17 Ark. App. 58, 702 S.W.2d 828 (1986). But see Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

Evidence sufficient to support award from Second Injury Fund. Dacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W.2d 713 (1971); Gibson's Disct. Ctr. v. Bornmann, 252 Ark. 24, 477 S.W.2d 171 (1972); Wooten v. Mohawk Rubber Co., 259 Ark. 837, 536 S.W.2d 734 (1976); Browning's Restaurant v. Kuykendall, 263 Ark. 374, 565 S.W.2d 33 (1978); Springston v. Jones Truck Lines, 268 Ark. 653, 595 S.W.2d 247 (1980); City of Magnolia v. Caswell, 269 Ark. 708, 600 S.W.2d 32 (1980); Marshall v. Ouachita Hosp., 269 Ark. 958, 601 S.W.2d 901 (Ct. App. 1980), overruled in part, Harrison Furn. v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981); Chicago Mill & Lumber Co. v. Greer, 270 Ark. 672, 606 S.W.2d 72 (1980); Little v. Delta Rice Mill, Inc., 11 Ark. App. 114, 667 S.W.2d 373 (1984).

In cases where the medical testimony is so uncertain that it could clearly lead the finder of fact to either of two contrary conclusions, the courts will not reverse the commission, as the substantial evidence supports whichever determination it makes; accordingly, where medical evidence was equivocal as to whether claimant's disease was aggravated by a work-related accident, the court would not disturb commission's decision that there was no aggravation of a preexisting malady. Johnson v. Valmac Indus., 269 Ark. 626, 599 S.W.2d 440 (1980).

Where the employee did not experience a decrease in his capacity to earn wages as a result of either his congenital condition or the previous pelvis fracture, there was substantial evidence to support the Workers' Compensation Commission's findings that the employee did not have an “impairment” within the meaning of this section prior to the compensable injury and that the Second Injury Fund was not liable for any of the benefits which were a consequence of the compensable injury. Del Monte Frozen Foods, Inc. v. Harmon, 19 Ark. App. 51, 716 S.W.2d 784 (1986).

The Workers' Compensation Commission did not err in holding that worker's congenital dyslexia was not “a previous disability or impairment” which gives rise to a claim against the Second Injury Fund under this section, where the worker entered the labor market as an unskilled manual laborer, he was pursuing that employment without diminished earning capacity at the time of his injury, and there was no evidence that the claimant could not have continued in the same or similar employment at the same wage he had always earned had it not been for his injury. Holley Enters. v. Nicholls, 19 Ark. App. 97, 717 S.W.2d 495 (1986).

Before the fact finder may consider the final question of whether a claimant's former condition combined with a recent compensable injury to produce the current disability status, it must be determined whether the claimant's former condition constituted an “impairment.” In determining whether the claimant's former condition constituted an “impairment,” the question which would be posed in each case is: Is the physical quality of the claimant's former nonwork related condition such that, were all other elements of compensability present, it would be capable of supporting an award? Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

Commission's decision which found an aggravation of a prior injury, as opposed to a recurrence, was supported by substantial evidence. Curry v. Franklin Elec., 32 Ark. App. 168, 798 S.W.2d 130 (1990).

Where there was strong medical testimony showing that employee's first injury did not create a physical condition which contributed to the ultimate disability, it was permissible for the Commission to consider employee's lack of wage-loss disability as some corroboration of that medical testimony. POM, Inc. v. Taylor, 325 Ark. 334, 925 S.W.2d 790 (1996).

The Second Injury Fund was liable for payment of wage-loss benefits where (1) all parties agreed that the claimant suffered a compensable injury, (2) the claimant was 8% permanently impaired prior to the compensable injury, and (3) the prior impairment combined with the compensable injury to produce the claimant's current disability status. Douglas Tobacco Prods. Co. v. Gerald, Inc., 68 Ark. App. 304, 8 S.W.3d 39 (1999).

Fund Participation.

The insurance carrier and the employer are the parties who benefit from Second Injury Fund involvement in appropriate cases, and it should be their responsibility to join the fund where their defense is based on the theory that an initial injury is contributing to the total amount of disability following the second injury. State, Second Injury Fund v. Mid-State Constr. Co., 16 Ark. App. 169, 698 S.W.2d 804 (1985).

This section does not provide any limitation on the Second Injury Fund's right to defend against a claim. Jackson v. Circle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).

Where the Second Injury Fund becomes a party to an action after the making of a stipulation, it is not bound by that stipulation. Jackson v. Circle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).

A claimant can draw wage-loss disability from the fund even if the claimant's employer did not carry workers' compensation insurance. Second Injury Fund v. J & S Trucking, 71 Ark. App. 218, 30 S.W.3d 112 (2000).

Impairment.

One may be impaired without being disabled; an “impairment” may or may not be work-related, meaning that it may or may not have an effect on the injured worker's ability to perform. Hawkins Constr. Co. v. Maxell, 325 Ark. 133, 924 S.W.2d 789 (1996).

A person who loses one eye becomes impaired but not disabled in a wage loss sense; if the person then loses the other eye, the person becomes disabled. Hawkins Constr. Co. v. Maxell, 325 Ark. 133, 924 S.W.2d 789 (1996).

The term “impairment” in this section includes results of work-related injuries as well as non-work-related injuries. POM, Inc. v. Taylor, 325 Ark. 334, 925 S.W.2d 790 (1996).

Investigation of Claim.

Filing interrogatories and participating in the taking of depositions are methods of gathering information for the investigation the fund must make in any case in which it has been made a party, and this investigation does not mean that the claim is controverted by the fund. Buckner v. Sparks Regional Medical Ctr., 32 Ark. App. 5, 794 S.W.2d 623 (1990).

Knowledge.

The language in this section referring to latent conditions “which are not known to the employee or employer” requires knowledge by either the employee or the employer, but not both. Second Injury Fund v. Yarbrough, 19 Ark. App. 354, 721 S.W.2d 686 (1986).

Latent Condition.

“Latent condition” is not defined by statute. An injury is latent until its substantial character becomes known or until the employee knows or should reasonably be expected to be aware of the full extent and nature of his injury. Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992).

The fact that there were visible signs of the claimant's underlying disorder did not preclude a finding that the condition which disabled him was latent at the time of the injury. Until the injury, the claimant was able to perform normally, therefore the evidence supported a finding that, at the time of the injury, the full extent and nature of his childhood illness and its effect was not known to him or to his employer. Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992).

As substantial evidence failed to support a finding that the substantial character or full extent of claimant's pulmonary disease was known when he suffered the second injury, his condition was latent and did not qualify as a prior disability or impairment which would trigger Second Injury Fund liability. Second Injury Fund v. James River Corp., 53 Ark. App. 204, 920 S.W.2d 869 (1996).

Liability for Second Injury.

Decision of the Arkansas Workers' Compensation Commission that the second-injury fund had no obligation to an employee's injury was remanded for more findings of fact because although the Commission correctly found that the employee previously worked unrestricted, that single finding was inadequate to support the Commission's conclusion that the employee failed to prove that her previous disability or impairment combined with her recent compensable injury to produce her disability status; there was much testimony and evidence elicited at the hearing that was related to the combination issue. St. Vincent Health Servs. v. Bishop, 2010 Ark. App. 141 (2010).

—In General.

If the second injury is recurrence of the original injury, compensation therefor must be paid by the employer and insurance carrier at the time of the first injury. Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528 (1963).

When symptoms of an injury persist and culminate in a second disability without the intervention of a new injury, the second disability is properly classified as a recurrence of the first injury and the insurance carrier and employer at the time of the original injury remain liable. Halstead Indus. v. Jones, 270 Ark. 85, 603 S.W.2d 456 (Ct. App. 1980); Allen Canning Co. v. McReynolds, 5 Ark. App. 78, 632 S.W.2d 450 (1982).

Where the second complication is found to be natural and probable result of the first injury, the employer remains liable and only where it is found that the second episode has resulted from an independent intervening cause is that liability affected. While there may be some variance in the words used to describe the principle, there has been no departure from the basic test, i.e., whether there is a causal connection between the two episodes. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

When an accidental injury aggravates a prior one, the one in whose employ the second injury occurs is liable for all of the consequences naturally flowing from that incident; and it is only when the employee suffers merely a recurrence of a former injury without an intervening cause that the employer at the time of the initial injury is liable for the recurring disability. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. Home Ins. Co. v. Meeker, 9 Ark. App. 201, 657 S.W.2d 215 (1983).

All of the logical consequences flowing from an initial injury are the responsibility of the carrier at the time of the initial incident. Where the second complication is a natural and probable result of the first injury it is deemed a recurrence and the original carrier remains liable. Only where it is found that a second episode has resulted from an independent intervening cause is liability imposed upon the second carrier. Aetna Ins. Co. v. Dunlap, 16 Ark. App. 51, 696 S.W.2d 771 (1985).

The test for liability of the Second Injury Fund is whether the prior impairment was effectively producing disability in the compensation sense (diminished earning capacity) before the accident and continued to do so afterwards. Masonite Corp. v. Mitchell, 16 Ark. App. 209, 699 S.W.2d 409 (1985).

The Workers' Compensation Commission did not err in finding that employee was guilty of unreasonable conduct in connection with a work-related disability where employee's failure to wear his wrist splint, resulting in a second injury, constituted an independent intervening event relieving insurer of further liability. Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993).

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 combine with the recent compensable injury to produce the current disability status. Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).

If the more recent injury alone would have caused claimant's current disability status, the Second Injury Fund has no liability. Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).

A prior condition need not cause a loss of wage-earning capacity in order to constitute an “impairment” and thereby meet the second prong of the test for Second Injury Fund liability. Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).

The lack of prior “disability” is not a determining factor, but the extent of one's physical abilities prior to a compensable injury is not necessarily irrelevant to the decision whether the Second Injury Fund is liable. Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).

Where there was evidence that although claimant sustained an injury in 1990, he had no surgery, he returned to the work force doing manual labor, and he had no problem doing his work until his injury more than two years later while working for the employer, claimant's preexisting disability and his most recent injury did not combine to produce a greater disability than would have been caused by the last injury considered alone. Hawkins Constr. v. Maxell, 52 Ark. App. 116, 915 S.W.2d 302 (1996), rev'd, 325 Ark. 133, 924 S.W.2d 789 (1996).

—Apportionment.

Where injury had resulted in no impairment of worker's earning capacity, the employer and its insurance carrier when the employee sustained a later, second injury were not entitled to claim any theory of apportionment to reduce the amount that worker was entitled to receive as the first attack had resulted in no impairment of earning capacity nor was it claimed as an industrial injury. Wilson Hargett Constr. Co. v. Holmes, 235 Ark. 698, 361 S.W.2d 634 (1962).

Where claimant was awarded permanent partial disability to the body as a whole for previous injuries, only an injury to the same part of the body would have any effect on a subsequent permanent partial disability to the body as a whole, the previous award for the similar injury being deducted. O.K. Processors, Inc. v. Dye, 241 Ark. 1002, 411 S.W.2d 290 (1967).

Where the claimant had suffered two injuries to the same area, the case was remanded to the commission for a determination of the degree of disability suffered by the claimant as a result of her first injury and for the degree of disability that would have resulted from her subsequent injury if the previous disability, if any, had not existed. Gibson's Disct. Ctr. v. Bornmann, 252 Ark. 24, 477 S.W.2d 171 (1972).

Where an employee accident created permanent partial disability and a second accident with another employer increased that disability, the second employer was responsible for only that portion of the disability created by the second accident. International Paper Co. v. Remley, 256 Ark. 7, 505 S.W.2d 219 (1974).

Apportionment does not apply unless the prior impairment was independently causing disability prior to the second injury and continues to operate as such after the accident; the fact that the prior disability was not job related and did not arise out of or in the course of a covered employment does not affect the duty to apportion. Harrison Furn. v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981).

Workers' Compensation Commission erred in holding that apportionment was not authorized on the grounds that the employee's preexisting disability resulted from a congenital abnormality and was not work related, since there is no requirement that the first injury be a compensable one before apportionment will apply and since the prior impairment was independently causing disability prior to the second injury and continued to do so after the accident. Harrison Furn. v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981).

While apportionment does not depend upon the preexisting disability being job related, apportionment does not apply unless the prior impairment was independently causing disability prior to the second injury and continued to do so after that injury. Craighead Mem. Hosp. v. Honeycutt, 5 Ark. App. 90, 633 S.W.2d 53 (1982).

Application of the doctrine of apportionment requires a finding that there was a second episode resulting from an independent intervening cause. Aetna Ins. Co. v. Dunlap, 16 Ark. App. 51, 696 S.W.2d 771 (1985).

In order to be apportionable under subsections (a) and (b), the condition must have been independently causing a disability prior to the second injury and continue to do so after the second injury. State Treasurer, Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985).

—Preexisting Condition.

A claim is compensable, without proof of unusual strain or exertion, when the claimant's ordinary work aggravates a preexisting condition and thus contributes to the injury. Black v. Riverside Furn. Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982)Criticized byCox v. Nashville Livestock Com., 28 Ark. App. 138, 771 S.W.2d 786 (1989); Colonial Nursing Home v. Harvey, 9 Ark. App. 197, 657 S.W.2d 211 (1983).

A preexisting disease or infirmity of an employee does not disqualify a claim under the arising out of employment requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).

While a prior condition need not have been a compensable injury, it must be independently producing some degree of disability before the second injury and continue to operate as a disability after the second injury in order for it to constitute a previous disability or impairment. State Second Injury Fund v. Girtman, 16 Ark. App. 155, 698 S.W.2d 514 (1985).

“Previous disability of impairment” does not refer to a condition which occurred while in the employment of the second-injury employer; the Second Injury Fund is not liable where all of the claimant's disability or impairment results from injuries occurring while in the employment of the same employer. Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 704 S.W.2d 635 (1986), aff'd, 289 Ark. 528, 715 S.W.2d 432 (1986); Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639, aff'd, 289 Ark. 509, 715 S.W.2d 429 (1986).

Before the Second Injury Fund is liable, one must have a preexisting condition that is independently causing a loss of earning capacity at the time of the second injury, and which continues to do so. Second Injury Fund v. Yarbrough, 19 Ark. App. 354, 721 S.W.2d 686 (1986).

Claimant's prior impairment must have been of a physical quality sufficient in and of itself to support an award of compensation had the elements of compensability existed as to the cause for the impairment. It is the substantial nature of the impairment which is emphasized, and the elements of compensability, none of which may have existed as to the particular claimant, merely assist the fact finder in his determination as to whether the former condition was sufficient in degree to constitute an impairment qualifying the claimant as one of the “handicapped” for whose benefit this section was enacted. Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

When it is determined that through the combination of a preexisting condition which is not work-related and a current compensable injury the claimant has sustained a disability greater than would have resulted from either of them alone, this section provides that the claimant shall be fully compensated for his current disability, but does not provide that the Second Injury Fund shall compensate the claimant for his preexisting non-work related condition. Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990).

Claimant's pre-existing impairment did not combine with his work-related injury to produce his current disability status; claimant's current disability status was solely the result of his compensable injury, and the Second Injury Fund had no liability. Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).

In addressing Second Injury Fund liability, the determination of whether an employee suffered preexisting impairment in addition to any disability which resulted from a work-related injury is a factual one and is to be made by the Commission. Chamberlain Group v. Rios, 45 Ark. App. 144, 871 S.W.2d 595 (1994).

Where employee's preexisting diabetes did not affect his ability to work prior to his admitted compensable injury, the diabetes was not a preexisting impairment sufficient to trigger Second Injury Fund liability. Chamberlain Group v. Rios, 45 Ark. App. 144, 871 S.W.2d 595 (1994).

Since it is well-settled that the aggravation of a pre-existing noncompensable condition by a compensable injury is itself compensable, the commission's decision not to award compensation because there were other possible causes for claimant's condition, was erroneous. Hubley v. Best Western-Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996), superseded by statute as stated in, Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). But see Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000).

Repeal of Prior Provisions.

Section 81-1313(f)(1) of the Arkansas Statutes Annotated, which was not codified in the Arkansas Code of 1987 (now codified as §§ 11-9-519 — 11-9-526), was not repealed or superseded by Acts 1981, No. 290, now codified, in part as subdivision (b)(1) of this section. Death & Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992).

Scheduled Injury.

Arkansas Court of Appeals, Division Four, holds that a claimant with a scheduled injury is not entitled to permanent partial disability benefits, and this applies whether the claimant is seeking benefits from an employer, an insurer, or the Arkansas Second Injury Fund. Therefore, a claimant, who lost four fingers in an accident, was unable to obtain wage-loss disability over and above the impairment rating to her hand based on a previous diagnosis of foot ulcers, even if the Fund was liable. Crelia v. Rheem Mfg. Co., 99 Ark. App. 73, 257 S.W.3d 115 (2007).

Separate Injuries.

Employee's similar compensable back injury six years earlier did not combine with the second compensable back injury to produce his current disability status. POM, Inc. v. Taylor, 325 Ark. 334, 925 S.W.2d 790 (1996).

Wage Earning Loss.

The wage-loss factor rather than the functional or anatomical loss is controlling in disability determinations which are to be made by the commission on the basis of medical evidence, age, education, experience and other matters reasonably expected to affect the claimant's earning power. Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985).

A worker may be entitled to additional wage loss disability even though his wages remain the same or increase after the injury. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).

A claimant's nonwork related condition suffered prior to the recent compensable injury need not have involved a loss of earning capacity. Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

In determining what is an “impairment,” loss of earning capacity becomes nothing more than one of the elements of compensability which, though possibly lacking in the particular case, constitutes a point of reference in determining whether the claimant's former nonwork related condition would be capable of supporting an award. Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).

Prior wage-earning loss is not a prerequisite to finding that an impairment and work-related injury have “combined” to produce one's level of disability. Arkansas Hwy. & Transp. Dep't v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993).

Cited: Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S.W.2d 450 (1952). But see Looney v. Sears, Roebuck & Co., 236 Ark. 868, 371 S.W.2d 6 (1963); McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W.2d 608 (1961); Abbott v. C. H. Leavell & Co., 244 Ark. 544, 426 S.W.2d 166 (1968); Bibler Bros. Lumber Co. v. Allen, 251 Ark. 593, 474 S.W.2d 116 (1971); Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W.2d 408 (1971); Coleman's Bar-B-Que v. Fuller, 262 Ark. 645, 559 S.W.2d 714 (1978); Randall, Burkart/Randall Div. of Textron, Inc. v. Daniels, 266 Ark. 1060, 599 S.W.2d 392 (1979); Model Laundry & Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (Ct. App. 1980); Weeks v. Coca Cola Bottling Co., 270 Ark. 151, 604 S.W.2d 566 (1980); Midwest Steel Co. v. Mulanax, 270 Ark. 914, 606 S.W.2d 606 (1980); Mountain Valley Superette, Inc. v. Bottorff, 4 Ark. App. 251, 629 S.W.2d 320 (1982); Vann v. Dow Chem. Co., 561 F. Supp. 141 (W.D. Ark. 1983); Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983); Sanders v. Alan White Co., 10 Ark. App. 322, 663 S.W.2d 939 (1984); Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984); C.J. Horner Co. v. Stringfellow, 14 Ark. App. 138, 685 S.W.2d 533 (1985); Gerber Prods. v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985); Franklin Collier Farms v. Chapple, 18 Ark. App. 200, 712 S.W.2d 334 (1986); General Indus. v. Gibson, 22 Ark. App. 217, 738 S.W.2d 104 (1987); Quality Serv. Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991); Ellison v. Therma-Tru, 66 Ark. App. 286, 989 S.W.2d 927 (1999); Rice v. Georgia-Pacific Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000).