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Second Injury Fund v. Arctic Bowl (12/13/96), 928 P 2d 590
NOTICE: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501; (907) 264-0607; Fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
SECOND INJURY FUND, )
) Supreme Court Nos. S-7092/7152
Appellant and )
Cross-Appellee, ) Superior Court No.
) 4FA-94-555 CI
JOHANNA DELONG, ) O P I N I O N
Appellant, ) [No. 4444 - December 13, 1996]
ARCTIC BOWL and ALASKA )
NATIONAL INSURANCE COMPANY, )
Appellees and )
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Toby N. Steinberger, Assistant
Attorney General, Anchorage, and Bruce
Botelho, Attorney General, Juneau, for
Appellant and Cross-Appellee Second Injury
Fund. Allan E. Tesche, Russell, Tesche &
Wagg, Anchorage, for Appellees and Cross-
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and
Shortell, Justice pro tem.
This case is an appeal from the superior court acting as
an intermediate court of appeal from a decision of the Worker's
Compensation Board. Second Injury Fund (SIF) appeals the superior
court's decision granting reimbursement from the fund to Arctic
Bowl (EN1) and its insurer, Alaska National Insurance Company, for
payments made to Johanna DeLong, a former employee of Arctic Bowl.
SIF argues that Arctic Bowl is not entitled to
reimbursement from the fund because its request for reimbursement
was untimely, and because it did not make 104 weeks of compensation
payments to DeLong for the injury on which the claim in question
II. FACTS AND PROCEEDINGS
Johanna Delong worked for Arctic Bowl from November 30,
1982, through July 18, 1988, as its snack bar manager. Her job
included running errands and ordering for the snack bar as well as
performing the duties of cook and cashier.
On December 25, 1983, Delong noticed a lump in her lower
abdomen near the site of a surgical incision which had been made
several years earlier during a hysterectomy. James Borden, M.D.,
diagnosed a ventral hernia and performed surgery to repair it.
In December 1986 DeLong felt her hernia "come out"after
she lifted heavy soup pots while working at Arctic Bowl. William
Montano, M.D., surgically repaired the ventral hernia on January 7,
1987. DeLong described her condition after the surgery as
"considerably pretty fair." She returned to work at Arctic Bowl.
On November 8, 1987, DeLong was hospitalized because of
work-related back pain. She was diagnosed with lumbosacral strain
and "either nearly midline placed disc at L5 and S1 or laterally
placed L4-5 disc on the right." This back injury constituted a
qualifying pre-existing permanent physical impairment under AS
DeLong returned to work at Arctic Bowl after missing
approximately two weeks of work because of the back injury.
Sometime between April and July of 1988, DeLong's hernia recurred.
On July 19, Dr. Montano again repaired the hernia. Though the
operation was considered successful, it weakened DeLong's abdominal
wall, restricting her from heavy lifting.
DeLong never returned to work at Arctic Bowl. Her
physical condition prevented her from being able to perform the
work of a cook or waitress.
On August 30, 1989, Lee Glass, an attorney for Arctic
Bowl, took DeLong's deposition. On December 10, 1990, the Worker's
Compensation Board approved a compromise and release agreement
between DeLong and Arctic Bowl. On July 31, 1991, Dr. Montano met
with an Arctic Bowl attorney. Dr. Montano explained that DeLong's
July 19, 1988, surgery had weakened her abdominal wall. He signed
an affidavit confirming his opinion on August 30.
On September 5, 1991, Arctic Bowl filed a new notice of
injury with the Worker's Compensation Board and a Notice of
Possible Claim against Second Injury Fund. On February 6, 1992,
Arctic Bowl filed a Petition to Join Second Injury Fund and Claim
for Reimbursement. The administrator of SIF denied Arctic Bowl's
claim for reimbursement due to untimeliness. The administrator
determined that Arctic Bowl had knowledge of the injury by August
30, 1989, the date of DeLong's deposition by Arctic Bowl's
attorney. Given this date, Arctic Bowl would have had to file its
Notice of Possible Claim within 100 weeks - by July 31, 1991. Its
claim was filed on September 5, over a month late by SIF's
On July 22, 1992, Arctic Bowl submitted additional
information and a revised affidavit by Dr. Montano, along with a
renewed request for SIF reimbursement. On May 11, 1993, SIF
answered Arctic Bowl's renewed request, rejecting the application
because Arctic Bowl had not reported 104 weeks of payments for the
July 19, 1988, injury.
The Petition for Second Injury Fund Reimbursement was
submitted to the Worker's Compensation Board. The Board found that
DeLong had experienced a second work-related injury on July 19,
1988, that Arctic Bowl had met the "combined effects"test of AS
23.30.205(a), and that the nature of the injury was discovered by
Arctic Bowl on July 31, 1991. The Board further found that Arctic
Bowl's notice of a possible claim against SIF was timely. However,
the Board determined that under the terms of the compromise and
release agreement, 104 weeks of payments had not been made on the
Arctic Bowl appealed the Board's decision to the superior
court and SIF cross-appealed. The superior court affirmed the
Board's determination that Arctic Bowl's notice of a possible claim
had been timely, and reversed the Board's decision that Arctic Bowl
had not made 104 weeks of payments as required by AS 23.30.205(a).
The case was remanded to the Board for a determination of the
amount of compensation for which Arctic Bowl was entitled to
Thereafter, a final Decision and Order of the Board was
entered by stipulation, setting the final amount of compensation
benefits for which Arctic Bowl would be entitled to SIF
reimbursement if the superior court's decision were to be upheld on
appeal. (EN2) Final judgment was then entered by the superior
court. This appeal and cross-appeal followed.
A. Was Arctic Bowl's Notice of Possible Claim Timely? (EN3)
SIF's first argument in support of its contention that
Arctic Bowl is not eligible for reimbursement from SIF is that
DeLong did not suffer a new injury from the surgery on July 19,
1988. SIF convincingly, and uncontroversially, demonstrates that
harm suffered during medical treatment of a compensable injury is
considered a consequence of the original injury, as opposed to a
new, separate injury. (EN4) Arctic Bowl does not directly
contradict this proposition, but instead casts the injury as an
ongoing or progressive injury, culminating in the July 19, 1988,
surgery. This would make the July 19 surgery a part of the injury,
specifically reflecting the final date of the injury, rather than
a separate injury.
SIF does not claim that no SIF-compensable injury
occurred, but instead argues that Arctic Bowl did not inform SIF
within 100 weeks of discovering the injury. At some point in the
spring or summer of 1988, DeLong, in the course of her employment,
suffered a recurrence of her hernia. The corrective surgery caused
further damage to DeLong's abdominal wall. It is uncontested that
Arctic Bowl knew of the existence of that recurrence and of the
surgery more than 100 weeks before it filed notice of a possible
claim against SIF. Therefore, if simple knowledge that an
injurious event has occurred is sufficient for the purpose of
triggering the 100-week time period, then Arctic Bowl's claim is
Thus, there is little relevance to the question of
whether the July 19, 1988 surgery constitutes a part of an ongoing
injury, or is simply a consequence of a workplace injury. The
relevant question is whether the time limit for reporting a
progressive or degenerative injury begins running from the moment
of the employer's knowledge of the injury, or from the moment of
the employer's knowledge that an injury rises to a potentially SIF-
DeLong suffered a workplace injury in the spring or
summer of 1988 which would not qualify for SIF reimbursement, but
which later became aggravated to the point where it does qualify
for such reimbursement. Though the aggravation is considered a
compensable consequence of the original injury, it is not a new
Under SIF's proffered analysis, the 100-week period began
to run from the time DeLong's hernia recurred, or at the latest
from the time Arctic Bowl knew of the hernia recurrence. SIF
argues that the hernia itself was the injury -- and the post-
surgical inflammation merely a consequence thereof -- so that as
soon as the employer knew of that injury, its time to notify SIF
began -- regardless of whether her injury, on that date, actually
qualified under the SIF statute.
SIF contends that the term "injury"as used in AS
23.30.205(f) (EN5) is simply and entirely defined by AS
23.30.265(17), (EN6) which states: "■injury■ means accidental
injury or death arising out of and in the course of employment."
SIF notes that "[t]here is nothing in the definition of ■injury■
that provides that the term ■injury■ for SIF purposes means ■when
the combined effect test is met.■"
However, SIF's proposed reliance on AS 23.30.265(17) is
much broader than is warranted. The "definition"provided in this
section is not a true definition of "injury"at all -- instead, it
is a delimitation of injuries covered by the statute. A true
definition does not use the word being defined to define itself.
This section is only intended to make clear that the word "injury,"
when used in this chapter, refers only to those particular injuries
which are work-related. (EN7) That is all this "definition"
conveys; nothing more. What constitutes an injury in the first
place is not addressed. Therefore, it is impossible to draw
substantive legal conclusions about the basic meaning of the term
"injury"from this description of the chapter's use of the word.
Since the statutory description is not decisive on this
issue, the word "injury"as used in AS 23.30.205(f) must be
understood in light of the common meaning of the word in the
context of the statute.
The way "injury"is used in the SIF section clarifies its
use in subsection (f). Subsection (f) provides that the notice may
be no later than 100 weeks after the employer has knowledge of "the
injury or death." The use of the definite article implies that the
section has already addressed the issue of which injury or death.
Subsection (a) confirms this by indicating which injuries are
covered by this section:
If an employee . . . incurs a subsequent
disability by injury arising out of and in the
course of the employment resulting in
compensation liability for disability that is
substantially greater by reason of the
combined effects of the preexisting impairment
and subsequent injury . . . than that which
would have resulted from the subsequent injury
alone . . . .
(Emphasis added.) Thus, "the"injury refers to an injury "arising
out of and in the course of the employment resulting in
compensation liability for disability that is substantially greater
by reason of the combined effects . . . ."
As the superior court stated in its December 16 Opinion
and Order, "an ■injury■ does not become an ■injury■ for SIF
purposes until the ■combined effects■ test of AS 23.30.205(a) is
met. (EN8) Injuries subsequent to the underlying impairment, but
which do not result in a greater disability than existed before, do
not give rise to a claim for SIF reimbursement." Since the
"combined effects"test was not satisfied until July 19, 1988, the
date of injury for SIF purposes can be no earlier. The mere
knowledge that an injury has occurred does not suffice to trigger
the 100-week notice period. (EN9)
Only after knowledge of the possibly SIF-compensable harm
to the employee can the employer be expected to notify SIF.
Otherwise the employer would be required to report every injurious
event to SIF, even if that harm clearly failed to meet the
DeLong's injury became a possible claim against SIF when
the "combined effects"test was satisfied. Though the hernia
recurred earlier, the "combined effects"test was not satisfied
until DeLong's abdominal wall suffered damage in the July 19, 1988,
surgery. Since the SIF statute imposes a time limit on the notice
of possible claim only from the time that the employer has
knowledge of an injury which gives rise to a possible SIF claim,
the date of Arctic Bowl's discovery of the inflammation and
weakening of DeLong's abdominal wall is the starting point for the
SIF places Arctic Bowl's date of knowledge at August 30,
1989 -- more than 100 weeks before Arctic Bowl notified SIF of a
possible claim. On August 30, 1989, Arctic Bowl's attorney, Glass,
took DeLong's deposition. Glass is also a physician. SIF contends
that because Glass is a physician, his deposition of DeLong
informed him of the medical status of her abdominal wall.
SIF asserts that since Glass has medical training, he
could not have failed to have learned of DeLong's medical condition
when he conducted her deposition. It relies on a statement in Dr.
Montano's affidavit that "[t]ypically, an adequate understanding of
such mechanisms and response in the surgical patient is obtainable
only with a medical education." Noting that Glass has a medical
education, SIF concludes that having interviewed DeLong regarding
medical issues, and having had access to at least some of her
medical records, Glass could not have failed to learn of the
"mechanisms and response"she underwent after surgery.
Arctic Bowl responds not that Glass was incapable of
understanding the medical issues, but rather that he did not in
fact learn of the particular response to surgery that DeLong had
suffered. Unless this is an unreasonable interpretation of the
events, we are bound to accept the Board's findings of fact.
The Board's conclusion was not unreasonable. First, it
is not the case that a non-treating physician always comes to a
complete understanding of a person's medical condition from an
interview with that person. In fact, in some cases the person may
simply not know enough details for the physician to draw a reliable
conclusion, thus making it impossible to reach an understanding of
that person's medical condition from an interview. Glass had never
examined DeLong's abdomen, nor had he ever talked to a doctor who
had. It was not unreasonable to conclude that he lacked sufficient
information to form an opinion as to the response of DeLong's
abdominal tissue to surgery.
Furthermore, the deposition transcript indicates no
awareness on Glass's part of a complex post-surgical response.
Glass comments only on the effects of a recurrent hernia, not on
the abdominal inflammation and weakening that may be caused by
surgery. Arctic Bowl, through its attorney Glass, was made aware
of the fact that DeLong had undergone surgery, but there is no
suggestion that it was also made aware that DeLong had been somehow
damaged by that surgery. Glass may have had the training to
understand how surgery can affect the abdominal wall in certain
cases, but there is no evidence in the record that makes
unreasonable the Board's conclusion that Glass lacked the requisite
information to deduce that surgery had affected DeLong's abdominal
wall in this way.
If the August 30, 1989 deposition did not inform Arctic
Bowl of the damage to DeLong's abdominal wall, Arctic Bowl could
only have learned of the damage on July 31, 1991, when Dr. Montano
met with an Arctic Bowl representative; on August 9, 1991, the date
of Dr. Montano's affidavit regarding his medical opinion; or on
August 30, 1991, the date Arctic Bowl says it received Dr.
Montano's affidavit. All of these dates are well within 100 weeks
of Arctic Bowl's September 5, 1991, notice to SIF. (EN10)
B. Did Arctic Bowl Make at Least 104 Weeks of Payments on
the Qualifying Second Injury? (EN11)
The Board found that under the terms of the compromise
and release (C&R) approved in December 1990 by DeLong and Arctic
Bowl, Arctic Bowl made compensation payments toward the 1986
hernia, not the second injury, in 1988. The superior court,
however, reversed this finding, holding that the C&R did include
payment for the 1988 injury.
The C&R is ambiguous, and necessarily so. "The primary
goal of contract interpretation is to give effect to the parties'
reasonable expectations." Aviation Assocs. v. TEMSCO Helicopters,
Inc., 881 P.2d 1127, 1130 n.4 (Alaska 1994). But the parties here
could not have had any expectations regarding the harm caused to
DeLong in July 1988, since they did not know of its existence at
the time they entered the C&R. Therefore, an overly rigid reading
of the terms of the C&R will be deceptive. The C&R does not
explicitly refer to the July 1988 injury -- nor could it have.
However, as the superior court noted, the C&R, after
referring to the 1986 injury, states that DeLong
may have sustained other recurrences of the
preexisting ventral hernia during the time she
was employed by the employer . . . . This
Compromise and Release is intended to resolve
any claims for any injuries to or aggravations
of employee's recurrent ventral hernia
sustained by her during employment with the
Furthermore, the C&R notes that "the employee's injuries
and disability . . . are or may be continuing and progressive in
nature and . . . the nature and extent of said injuries and
resulting disability may not be fully known at this time." It goes
on to state that the employer is released from "any known or as yet
undiscovered disabilities, injuries or other damages associated
with said accident."
Thus, though the parties obviously could not have had any
specific expectations about payments for post-surgical inflammation
and weakening of the abdominal wall, they did have a general
expectation that some of the money paid under the C&R would cover
possible undiscovered injuries.
Additionally, as the superior court noted, the C&R states
that the employee had received vocational rehabilitation benefits
and compromised any future benefits to which she might have been
entitled. Since the 1986 injury did not rise to a level entitling
her to vocational rehabilitation, the 1988 injury must provide the
basis for this compensation. Moreover, DeLong received Temporary
Total Disability payments from January 6 to March 5, 1987, and from
July 18, 1988, to September 29, 1990 (over 114 weeks). The 1987
payments were for the 1986 injury, but the 1988-1990 payments stem
from the 1988 injury. (EN12)
In short, the superior court correctly determined that
the C&R provided for over 104 weeks of payments stemming from the
C. Should the Superior Court Have Granted Attorney's Fees to
On cross-appeal, Arctic Bowl argues that the superior
court should have awarded it attorney's fees against SIF in Arctic
Bowl's appeal. SIF asserts that it should not be liable for
attorney's fees upon having its refusal to pay an employer
SIF quotes Providence Washington Insurance Co. v. Busby,
721 P.2d 1151 (Alaska 1986), to support its assertion that
attorney's fees cannot be awarded against it. SIF's reliance on
Providence is misplaced. Providence dealt with whether SIF should
reimburse an employer for the employer's fees incurred in
litigating against an employee. Thus, the statement in Providence
that the SIF was established as a "limited reimbursement scheme for
disability payments only"referred only to the reimbursement
function of the SIF. Id. at 1152. It had nothing to do with SIF's
status with respect to its own litigation.
The statute under which Arctic Bowl is seeking attorney's
fees, AS 23.30.145(c), (EN13) taken in conjunction with Appellate
Rule 508(e), (EN14) can properly be construed to authorize an award
of attorney's fees. SIF, as the losing appellee, is thus liable
for partial fees.
D. Can SIF be a Party to an Appeal?
Arctic Bowl also contends that because of SIF's status in
relation to the Board and the Department of Labor, SIF cannot take
appeals from Board decisions. Arctic Bowl's position is without
merit. SIF is administered by the Commissioner of Labor, and is
not merely an arm of the Board. Though SIF is bound to make
payments in accordance with Board awards, AS 23.30.040(a), (EN15)
this is no more than is required of any party properly before the
Board, and has no bearing on the right to appeal.
The superior court's Opinion and Order of December 16,
1994 is AFFIRMED. The amount owed by SIF was stipulated by the
parties and accepted by the Board and judgment was entered by the
superior court. This April 14, 1995 judgment is AFFIRMED. The
superior court's January 4, 1995 Order Denying Motion for
Attorney's Fees is VACATED. The issue of attorney's fees is
REMANDED for determination under AS 23.30.145(c) and Appellate Rule
1. "Arctic Bowl"in the context of this litigation and appeal
refers collectively to Arctic Bowl and its carrier, Alaska National
2. Reimbursement of $20,035.70 was ordered. This amount was
calculated by multiplying 104 weeks times $224.72 (the compensation
rate) resulting in a figure of $23,370.88. Total disability
payments made by Arctic Bowl were $43,406.58. Thus, subtracting
$23,370.88 from $43,406.58 resulted in a reimbursement figure of
3. Whether Arctic Bowl's time to file its Notice of Possible
Claim runs from its discovery that an injury had occurred or from
its discovery that an SIF-eligible injury had occurred is a
question of law not within the special expertise of the Worker's
Compensation Board, and therefore this court will substitute its
judgment for that of the Board. Sokolowski v. Best Western Golden
Lion Hotel, 813 P.2d 286 (Alaska 1991).
The timeliness of Arctic Bowl's Notice of Possible Claim also
rests on disputed factual issues. As a question of fact, the
Board's decision is subject to review under the "substantial
evidence"standard. Handley v. State, Dep't of Revenue, 838 P.2d
1231, 1233 (Alaska 1992).
The superior court's decision as an intermediate court of
appeal is given no deference. We independently review the Board's
decision. Hester v. Pub. Emp. Retirement Bd., 817 P.2d 472, 474
4. See, e.g., Sanders v. General Motors Corp., 358 N.W.2d 611
(Mich. App. 1984); Lahue v. Missouri State Treas., 820 S.W.2d 561
(Mo. App 1991). Though harm caused by medical treatment for a
compensable injury is not considered a separate work-related
injury, it is compensable as a consequence of the original injury.
1 Arthur Larson, The Law of Workmen's Compensation Law sec.
13.21(a) (1993) ("It is now uniformly held that aggravation of the
primary injury by medical or surgical treatment is compensable.").
See also Ribar v. H & S Earthmovers, 618 P.2d 582, 584 (Alaska
1980) ("[T]he general rule is that the consequences of medical
negligence committed while treating a compensable injury are
5. AS 23.30.205(f) provides:
An employer or the employer's carrier shall
notify the commissioner of labor of any
possible claim against the second injury fund
as soon as practicable, but in no event later
than 100 weeks after the employer or the
employer's carrier have knowledge of the
injury or death.
6. AS 23.30.265(17) provides:
"[I]njury"means accidental injury or death
arising out of and in the course of
employment, and an occupational disease or
infection which arises naturally out of the
employment or which naturally or unavoidably
results from an accidental injury; "injury"
includes breakage or damage to eyeglasses,
hearing aids, dentures, or any prosthetic
devices which function as part of the body and
further includes an injury caused by the
wilful act of a third person directed against
an employee because of the employment;
"injury"does not include mental injury caused
by mental stress unless it is established that
(A) the work stress was extraordinary and
unusual in comparison to pressures and
tensions experienced by individuals in a
comparable work environment, and (B) the work
stress was the predominant cause of the mental
injury; the amount of work stress shall be
measured by actual events; a mental injury is
not considered to arise out of and in the
course of employment if it results from a
disciplinary action, work evaluation, job
transfer, layoff, demotion, termination, or
similar action, taken in good faith by the
7. Or, in other words, that this statute does not cover non-work-
8. In this regard the superior court said:
The court finds that the proper date for
calculating the 100-week notice requirement is
July 19, 1988, the date of surgery, but not
necessarily for the same reasons articulated
by the Board. Not all compensable injuries
are "injuries"for purposes of reimbursement
from the SIF. For an injury to give rise to
reimbursement from the SIF, the injury must
combine with a previous permanent physical
impairment creating a greater disability than
would exist from the injury alone. See AS
23.30.205(a). In other words, an "injury"
does not become an "injury"for SIF purposes
until the "combined effects"test is met.
Injuries subsequent to the underlying
impairment, but which do not result in a
greater disability than existed before, do not
give rise to a claim for SIF reimbursement.
9. In Industrial Accident Board v. Parker, 348 S.W.2d 188, 196
(Tex. Civ. App. 1961), the court held that an employee's failure to
timely notify the Board and make a claim on the Second Injury Fund
would be excused until he became aware that his injuries met the
combined effect test.
10. SIF points out that there was a long delay between the date of
DeLong's surgery and the date of Arctic Bowl's interview of Dr.
Montano. SIF provides little argument and no law regarding the
effect of delay in investigation or discovery on the time limit for
giving notice. Since SIF only cursorily argues this point, and
since it is not included in the points on appeal, this argument is
considered waived. See Petersen v. Mutual Life Ins. Co., 803 P.2d
406, 410 (Alaska 1990); Hootch v. Alaska State-Operated Sch. Sys.,
536 P.2d 793, 808 n.58 (Alaska 1975).
11. This issue revolves around the interpretation and legal effect
of a compromise and release entered into by Arctic Bowl and DeLong.
Interpretation of a contract is a question of law for which this
court will use its independent judgment. Alaska Energy Auth. v.
Fairmont Ins. Co., 845 P.2d 420 (Alaska 1993).
AS 23.30.205(a) provides:
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 the 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 the
insurance carrier shall in the first instance
pay all awards of compensation provided by
this chapter, but the employer or the
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.
12. This does not contradict Arctic Bowl's claim that it lacked
knowledge of DeLong's injury until August 1991. Arctic Bowl does
not argue that it did not know DeLong was hurt, but rather that it
did not know that she had suffered an SIF-eligible injury.
13. AS 23.30.145(c) reads as follows:
If proceedings are had for review of a
compensation or medical and related benefits
order before a court, the court may allow or
increase an attorney's fees. The fees are in
addition to compensation or medical and
related benefits ordered and shall be paid as
the court may direct.
14. Appellate Rule 508(e), applicable to the superior court under
Rule 601, provides that "[a]ttorney's fees may be allowed in an
amount to be determined by the court."
15. AS 23.30.040(a) states:
There is created a second injury fund,
administered by the commissioner. Money in
the second injury fund may only be paid for
the benefit of those persons entitled to
payment of benefits from the second injury
fund under this chapter. Payments from the
second injury fund must be made by the
commissioner in accordance with the orders and
awards of the board.