Employers Commercial Union Ins. Group v. Christ, 1576
| Decision Date | 12 September 1973 |
| Docket Number | No. 1576,1576 |
| Citation | 513 P.2d 1090 |
| Parties | EMPLOYERS COMMERCIAL UNION INSURANCE GROUP, a foreign corporation, and the State of Alaska, Appellants, v. James CHRIST, and the Alaska Workmen's Compensation Board, Appellees. |
| Court | Alaska Supreme Court |
Charles Hagans, Keith E. Brown, Anchorage, for appellants.
Martin A. Farrell, Jr., of Hahn, Jewell & Farrell, Anchorage, for James Christ.
John E. Havelock, Atty. Gen., Juneau, Charles K. Cranston, Asst. Atty. Gen., Anchorage, for appellee, Alaska Workmen's Compensation Bd.
Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.
This is a workmen's compensation case in which we are called upon to interpret the statutes pertaining to the second injury fund. The question is whether the absence of an arm is such a pre-existing physical impairment as to entitle the employer, as a matter of law, to reimbursement from the fund.
James Christ lost his arm by amputation in 1937 when he was 20-years old. In 1961 he commenced his employment with the State of Alaska, Division of Lands. On October 12, 1968, while so employed, he was injured in a motor vehicle accident, suffering lacerations of the head and face, and fractures of the vertebral bodies of the dorsal-lumbar spine. Christ's treating physician later testified that the absence of the left arm combined with the back injury to produce a permanent, partial impairment which he estimated at 50% to 60% of the whole man.
The evidence presented at the hearing before the Alaska Workmen's Compensation Board shows that for most of his adult life, Christ's primary type of work was constructing buildings, running road makers, and operating dump trucks. He had no difficulty obtaining employment. During his eight years of employment with the Division of Lands, Christ did park maintenance work, warehouse work, operated various types of machinery, and did other construction work such as prefabrication, building fireplaces, and pouring cement. In the summers, he worked in the field and operated heavy equipment. He had taken a physical examination prior to his employment with the Division of Lands. According to his supervisor, Christ, before the injury, was adept at operating heavy equipment, and was capable of performing all field and shop duties with only one arm. He performed better than some employees with two arms.
None of Christ's initial employment papers indicate that he had lost an arm. The first written acknowledgment of the existence of Christ's handicap, the loss of an arm, was in a personnel evaluation report dated December 13, 1966, and this report noted that the loss of arm did not slow his work.
The board found Christ to be permanently and totally disabled by the 1968 injury and awarded compensation on that basis. In its decision, the Alaska Workmen's Compensation Board observed that the loss of an arm did not prevent Christ from being gainfully employed nor was it of such seriousness as to constitute a hindrance to his obtaining employment. As a result, the board concluded that the employer, the State of Alaska, was not entitled to reimbursement from the second injury fund. The State's insurance carrier appealed to the Superior Court, which affirmed the order of the board. The insurance carrier seeks a final determination from this court.
Our Workmen's Compensation Law, AS 23.30.205, provides a system of reimbursement to the employer of a handicapped person, where that person receives a second injury. The following provisions of AS 23.30.205 are pertinent to this appeal:
'(a) If an employee who has a permanent physical impairment from any cause or origin incurs a subsequent disability by injury arising out of and in the course of his employment resulting in compensation liability for disability that is substantially greater by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation provided by this chapter, but the employer or his insurance carrier shall be reimbursed from the second injury fund for all compensation payments subsequent to those payable for the first 104 weeks of disability.
'(C) In order to qualify under this section for reimbursement from the second injury fund, the employer must establish by written records that the employer had knowledge of the permanent physical impairment before the subsequent injury and that the employee was hired or retained in employment after the employer acquired that knowledge.
'(d) As used in this section, 'permanent physical impairment' means any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed. No condition may be considered a 'permanent physical impairment' unless
(1) it is one of the following conditions:
(AA) spondylolisthesis, or
(2) it would support a rating of disability of 200 weeks or more if evaluated according to standards applied in compensation claims.'
The insurance carrier qualifies generally for reimbursement under the terms of the statute. Although the initial employment records contained no statement about Christ's handicap, a report written prior to his second injury did contain a statement that he was missing an arm. Thus, the employer has satisfied the statutory requirement that Christ was retained in employment after knowledge of the handicap, established by written record. AS 23.30.205(c).
The only question to be resolved is whether Christ's lack of an arm is 'of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if (he) should become unemployed.' AS 23.30.205(d). The carrier argues that an amputated arm is such a hindrance as a matter of law; to hold otherwise is to defeat the purpose of the second injury fund. Appellees argue that because Christ's prior impairment did not affect his ability to obtain employment and to remain employed, there was not in fact an impairment serious enough to qualify as a hindrance or obstacle to employment under the concept expressed in the statute.
The law in other jurisdictions is not uniform on this question. Some states have statutes cast in rather general terms, leaving wide scope for judicial decision on the applicability of the second injury fund. Others have statutes carefully and specifically drawn, leaving fewer doubtful cases for decision.
In some states the courts require a showing, before the second injury fund...
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