Opinion
CLAIM NO. E615744
ORDER FILED MAY 26, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented pro se.
Respondent represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Both parties appeal opinions and orders of the administrative law judge filed on June 7, 1999 and on February 11, 2000. After conducting a de novo review of the entire record, we find that the claimant, Raymond L. Armstrong, established entitlement to temporary total benefits from August 30, 1996 through May 30, 1997. In addition, we find that Ashley Armstrong, the claimant's minor child, is entitled to receive the claimant's award of temporary total benefits for the period of the claimant's incarceration. We also find that the claimant's correct compensation rate is $209.00 for temporary total benefits. Therefore, the findings of the administrative law judge are affirmed.
I. What is the correct compensation rate for the claimant?
A.C.A. § 11-9-518 states:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident, and in no case shall be computed on less than a full-time work week in the employment.
(2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period, not to exceed fifty-two (52) weeks preceding the week in which the accident occurred, and by multiplying this hourly wage by the number of hours in a full-time work week in the employment.
(b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two (52) weeks preceding the accident.
(c) If, because of exceptional circumstances, the average weekly wage can not be fairly and justly determined by the above formulas, the Commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
In the present case, the claimant contends that at the time of his injury he was making $10.00 per hour working a 40-hour week, which would calculate to an average weekly wage of $400.00. The respondent contends that the claimant has an average weekly wage of $261.94. Considering the evidence impartially and without giving either party the benefit of the doubt, we find that the claimant has an average weekly wage of $314.15, which calculates to a compensation rate of $209.00 for temporary total benefits and $157.00 for permanent partial benefits.
In this regard, we note that the only documentary evidence submitted by the parties for determining the average weekly wage was the AR-W provided to the Workers' Compensation Commission. From that document, it appears the claimant had been employed for at least twelve consecutive weeks prior to the date of injury while working a portion of a thirteenth week. Week 13, as indicated on the AR-W, should be excluded in determining the claimant's average weekly wage, since the claimant did not work a full week that week. The claimant earned a total of $3,769.65 in the 12-week period. The claimant therefore for the 12-week period prior to the injury, had an average weekly wage of $314.15, with a compensation rate of $209.00 for temporary total disability and $157.00 for permanent partial disability.
II. What are the correct criteria for determining temporary total benefits for scheduled injuries that occurred after July 1, 1993?
This appears to be a case of first impression on the precise legal issue presented. Prior to the amendments of Act 796 of 1993, Ark. Code Ann. § 11-9-521 (a) provided in relevant part:
(a) An employee who sustains a permanent injury scheduled in this section shall receive, in addition to compensation for the healing period, weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period of time set out in the following schedules. . . . [Emphasis ours]
On at least one occasion, the Full Commission construed the Pre-Act 796 law on temporary benefits for scheduled injuries as providing for compensation for the duration of the injured workers' healing period (1) regardless of whether the employee was experiencing a total incapacity to earn and (2) regardless of whether the employee had returned to work. See, Rena Finley v. Munsey Products, Full Workers' Compensation Commission, Op. filed July 5, 1990 (Claim No. D513279) [Finley I]; Rena Finley v. Munsey Products, Full Workers' Compensation Commission, Op. filed August 14, 1990 (Claim No. D513279) [Finley II]. The Full Commission explained its rationale in Finley II as follows:
On this date comes on for hearing the Motion for Reconsideration filed by Munsey Products and Rena Finley's objection thereto. In an opinion and order filed March 15, 1989, the administrative law judge found that Rena Finley's period of temporary total disability ended March 30, 1987. The Full Commission affirmed and adopted his opinion on August 30, 1989. However, the Arkansas Court of Appeals, in an opinion filed May 9, 1990, reversed and remanded the case with instructions to determine the date on which the healing period ended. In a second opinion filed July 5, 1990, the Full Commission found that the healing period had not yet ended, and temporary total disability benefits were awarded to a date to be determined in the future. Attorney's fees were also awarded.
Munsey does not challenge the determination that the healing period has not ended. Instead, its Motion for Reconsideration alleges that the Commission was without jurisdiction to award the temporary total disability benefits and attorney's fees. We cannot agree, inasmuch as the authority to award appropriate benefits was implicit in the instructions to determine the duration of the healing period. It would be an absurd interpretation of the Court of Appeals' opinion to hold that the Full Commission is authorized to find that the healing period continued beyond March 30, 1987, but not to make an award in connection therewith.
Munsey also argues that Ms. Finley is not entitled to benefits after July 11, 1988, on which date she returned to work. However, the injury was a scheduled one to the hand. The argument that benefits should not be paid for a scheduled injury once the worker is able to resume normal activities was specifically rejected in International Paper Company v. McGoogan, 255 Ark. 1025, 504 S.W.2d 739 (1974) where the temporary employee was a student who returned to school before his injury healed. In Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), involving return to work, the Arkansas Supreme Court defined the period of temporary total disability as "that period within the healing period in which the employee suffers a total incapacity to earn wages." Breshears had suffered a back injury, and the Court held that benefits were payable for the period of temporary total disability and not for the entire healing period unless the two periods happened to coincide. However, the Court also said, "We hold that the term `disability' as defined below controls compensation awards in all cases of temporary disability except where compensation is statutorily based upon the `healing period'." [Emphasis supplied.] McGoogan was cited as a case which discussed the law as pertaining to scheduled injuries. We have specifically found that Breshears did not overrule McGoogan. Keith Scott v. BJK Industries, WCC No. D504645 (7-29-86). Because the compensation in a scheduled injury case is based upon the healing period rather than the period of temporary total disability, Rena Finley's entitlement to benefits continues.Act 796 of 1993 amended Ark. Code Ann. § 11-9-521(a), which now provides in relevant part:
(a) An employee who sustains a permanent compensable injury scheduled in this section shall receive, in addition to compensation for temporary total and temporary partial benefits during the healing period or until the employee returns to work, whichever occurs first, weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period of time set out in the following schedules. . . . [Emphasis ours]
We agree with the respondents that in Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), the Arkansas Supreme Court established the following definition of temporary total disability: "Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages". The respondents and the dissent argue on appeal that the language added to Section 521 (a) by Act 796 of 1993 was intended to codify the Arkansas Supreme Court holding in Breshears. The respondents and the dissent therefore assert that the Breshears standard is now embodied in Section 521 (a) and now applies to scheduled injury cases.
The Arkansas Supreme Court discussed the following tenets of strict construction applicable to Act 796 as follows in Lawhon Farm Services v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998):
We construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Vanderpool v. Fidelity Casualty Ins. Co., 327 Ark. 407, 415, 939 S.W.2d 280 (1997); Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 55, 922 S.W.2d 718, 720 (1996). The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the General Assembly. Id. As a guide in ascertaining legislative intent, we often examine statutory history as well as conditions contemporaneous with the time of the enactment, the consequences of interpretation, and all other matters of common knowledge within the courts, here the commission's, jurisdiction. Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 261, 926 S.W.2d 432, 435 (1996). In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Hercules, Inc. v. Pledger, 319 Ark. 702, 706, 894 S.W.2d 576, 578 (1995).
Strict construction means narrow construction. Arkansas Conf. Seventh Day Adventists v. Benton Cty. Bd. Of Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990). In Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993), we wrote that strict construction requires that nothing be taken as intended that is not clearly expressed. The doctrine of strict construction is to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). Even when statutes are to be strictly construed, however, they must be construed in their entirety, harmonizing each subsection where possible. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).
Strictly construing the law, as we are required to do, we do not find persuasive the respondents' argument that the Brashears definition of temporary total disability is now embodied in Section 521 (a) for the following reasons. First, and foremost, conspicuously absent from the amendments of Act 796 is any use of the term "disability" or the phrase "incapacity to earn wages". If the Legislature had intended to amend the law to now require a claimant to specifically prove "an incapacity to earn" or a "disability" as a prerequisite to temporary benefits for a scheduled injury, we believe the Legislature would have used some language to that effect or, at the very least, have referenced theBreshears decision.
Second, to the extent that the Legislature may have had some prior decision in mind in amending Section 521 (a) in 1993, the plain language of the amendments made by Act 796 indicates to us that the Legislature intended to address the Full Commission's statutory interpretation in Finley I and Finley II, which had permitted a worker to receive temporary total benefits even after returning to work, rather than somehow attempting to embody theBreshears test in Section 521 (a), as the dissent argues.
Third, to the extent that the respondents argue that a claimant must prove disability to be entitled to an award of benefits for a scheduled injury, we also note that this argument appears to be contrary to the recent finding of the Arkansas Supreme Court that a loss in earnings on account of a scheduled injury is conclusively presumed under Ark. Code Ann. § 11-9-521 (a). See, Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
Therefore, for the reasons discussed herein, as we interpret the amendments of Act 796, the claimant must establish two requirements by a preponderance of the evidence in order to be entitled to temporary benefits for a scheduled injury: (1) that he remains within his healing period; and (2) that he has not returned to work.
III. For what period has the claimant established entitlement to temporary benefits?
The relevant facts are not in dispute. On August 8, 1996, the claimant suffered a compensable injury to his right arm when it was burned by hot tar. The claimant was initially seen for medical treatment at the Ouachita County Medical Center emergency room on August 9, 1996. The claimant continued medical treatment at the medical center through the month of August, 1996. Also during that time, the claimant's regular wages were paid to him by the respondent based on the amount of work conducted at the construction location. On or about August 30, 1996, the claimant was incarcerated in the Arkansas Department of Corrections system.
While in the Faulkner County Detention Center, the claimant was treated by Dr. George T. Gray for his compensable right upper extremity injury. Dr. Gray performed a myriad of medical treatment in an attempt to eliminate problems the claimant was experiencing as a result of the burn to his right upper extremity. Subsequently, the claimant was transferred to the Cummins Unit of the Arkansas Department of Corrections where he was treated by various physicians for his compensable injury.
The claimant was ultimately released from prison whereupon he sought additional medical treatment from Dr. Gray. However, the claimant testified that he was unable to locate Dr. Gray and filed his request for benefits which initially included a request for additional medical treatment. Prior to the hearing, as well as at the hearing, the respondent stated that it was not denying claimant reasonable and necessary treatment. At the hearing it was determined that this administrative law judge would select a physician to continue claimant's medical treatment, which was done by letter correspondence to the claimant and the respondent immediately subsequent to the hearing on May 3, 1999.
The healing period continues until the employee is as far restored as the permanent character of his injury will permit. If the underlying condition causing the disability has become stable, and if nothing further in the way of treatment will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present case, we find that the preponderance of the evidence clearly indicates that the claimant remained within the healing period for his compensable right upper extremity burn injury during the entire period at issue from August 30, 1996 through May 30, 1997. Although the dissent argues that the claimant's healing period ended prior to surgery in February of 1997, and that the claimant entered a new healing period following that surgery, we note that the claimant continued to seek medical treatment to resolve the loss of function as a result of his injury. Further, no medical reports indicate that the claimant ever reached the end of his healing period or achieved the best result possible under the circumstances for his burn injury and complications at any time during the period.
We do not reach the issue as to when, if ever, the claimant's healing period ended after May 30, 1997, as the claimant only sought temporary benefits through May 30, 1997 at the hearing held on May 3, 1999.
In finding that the claimant remained within his healing period continuously from August 30, 1996, through May 30, 1997, and did not undergo two distinct healing periods before and after laser surgery, as the dissent suggests, we are particularly persuaded by Dr. Gray's following narrative indicative of a single scarring/healing process for which laser surgery was eventually deemed necessary:
As you know, he received second and third degree burns to the right arm in August of 1996. This was acutely treated with debridement, antibiotics and analgesics. Dressing changes were performed and the patient was given instructions on how to take care of this and infection prophylaxis. Over time he developed a significant and thick keloid which is not uncommon in Afro-Americans. He began having a significant amount of pain, especially over the keloid at the level of the wrist, palmar surface. We tried for quite some time to treat this with topical florinated cortocosteroids [sic], which did not help. I injected Kenalog on at least two occasions over a fairly large surface area of keloid which again did not help. At that time I simply opted to laser destroy part of this keloid tissue so that he could regain some range of motion at the wrist. [Emphasis added.]
Consequently, we find that the claimant has established the two requirements necessary to establish entitlement to temporary total benefits for his scheduled injury for the period he seeks from August 30, 1996, through May 30, 1997.
There does not appear to be any dispute on appeal that Ashley Armstrong was the proper person to petition the Commission to receive the benefits at issue pursuant to Ark. Code Ann. § 11-9-812(a)(1). Her petition having been filed, we find that Ashley Armstrong is entitled to receive the temporary benefits for the period of the claimant's incarceration.
IT IS SO ORDERED.
____________________________________ ELDON F. COFFMAN, Chairman
____________________________________ PAT WEST HUMPHREY, Commissioner
CONCURRING DISSENTING OPINION
I concur in part and dissent in part from the majority's opinion finding that the claimant proved by a preponderance of the evidence that he was entitled to temporary total disability benefits for the period August 30, 1996 to May 30, 1997. I can concur with the majority's finding that the claimant is entitled to temporary total disability benefits for the period February 20, 1997 through May 30, 1997. I can also concur in the majority's finding that the claimant's average weekly wage is $314.15. However, I must dissent from the majority's finding that the claimant is entitled to temporary total disability benefits for the period August 30, 1996 to February 19, 1997. In my opinion, the claimant has failed to prove by a preponderance of the evidence that he was within his healing period or incapacitated from working during this time period.
The claimant sustained a burn injury to his right arm on August 8, 1996. The claimant received medical treatment from Ouachita County Medical Center. On August 30, 1996, the claimant was incarcerated in the Arkansas Department of Correction. The respondent employer paid the claimant his regular wages from the date of his injury until the date of his incarceration. While he was incarcerated, the claimant was treated by Dr. George Gray. Dr. Gray performed laser surgery on the claimant's arm to remove keloid formations from the claimant's right wrist on February 20, 1997. The medical reports generated prior to the claimant's incarceration on August 30, 1996, fail to indicate that the claimant should be off work. Dr. Gray initially treated the claimant on September 4, 1996, and his reports fail to establish that the claimant was in his healing period and totally incapacitated from earning wages until after the laser surgery on February 20, 1997. The evidence indicates that the claimant did no work at the Arkansas Department of Correction from August 30, 1996 to June 9, 1997. However, no evidence was entered into the record to indicate why the claimant was unable to work for the period of August 30, 1996 to February 20, 1997.
Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Supp. 1999). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
Temporary total benefits do not, in all cases, correspond to the healing period; temporary disability is not based on the claimant's healing period, but is awarded where the claimant's injury-caused incapacity prevents him from earning the wages he was receiving at the time of the injury. County Mkt. v. Thornton, 27 Ark. App. 235, 770 S.W.2d 156, Supp. Op. reh'g denied. 27 Ark. App. 241-A, 771 S.W.2d 793 (1989).
I must disagree with the majority's finding that the criteria set forth in Breshears is not required for a scheduled injury under Ark. Code Ann. § 11-9-521. The requirements set forth inBreshears state that the claimant must be within his healing period and totally incapacitated to earn wages. AlthoughBreshears was decided prior to the enactment of Act 796 1993, it is now codified at Ark. Code Ann. § 11-9-521(a) (Supp. 1999) which reads:
An employee who sustains a permanent compensable injury scheduled in this section shall receive, in addition to compensation for temporary total and temporary partial benefits during the healing period or until the employee returns to work whichever occurs first, weekly benefit. . .
The Breshears standard was added to that section of the statute with the passage of Act 796. The requirements are clearly embodied in the statute and do apply to scheduled injury cases. In my opinion the majority has erred as a matter of law when it found that the claimant was entitled to an award of temporary total disability benefits from August 30, 1996 through June 9, 1997, because the claimant did not work during this time period even though he was in his healing period only from February 28th through June 9, 1997. The claimant should not be entitled to an award of benefits for time outside the healing period. At the most, the claimant is only entitled to benefits for the period ofcomplete incapacitation. Breshears squarely holds this.
The majority finds that the claimant is entitled to an award of temporary total disability benefits from August 30, 1996, until May 30, 1997, because the claimant did not work during this period of time and because he remained within his healing period. It is my opinion that he was in his healing period and totally incapacitated from earning wages only from February 20, 1997 until May 30, 1997.
The majority's finding that a claimant need only prove that he remains within his healing period and that he has not returned to work in order to receive temporary total disability benefits allows an inequitable result. In my opinion the claimant must prove he remains within his healing period and he has an incapacity to earn. The claimant can only show incapacity to earn for the period February 20 through May 30, 1997. In my opinion, the claimant must prove that he is in his healing period and he has an incapacity to earn wages in order to receive temporary total disability benefits for scheduled as well as unscheduled injuries.
In my opinion, the claimant cannot be entitled to an award of benefits for time outside the healing period. The evidence tends to show that the claimant's healing period ended prior to February 20, 1997, the date of the laser surgery performed by Dr. Gray. That surgery was required because the claimant's burn healed in a way that resulted in a keloid formation. The claimant did re-enter his healing period after the surgical procedure was performed on February 20, 1997.
The evidence clearly shows that the claimant could not be entitled to any benefits prior to the time of the laser surgery. It is clear from the evidence that the claimant was not earning wages due to his incarceration not because of his injury. The respondent employer was paying the claimant his salary at the time of his injury and continued to pay the claimant until he was incarcerated. Had the claimant not been incarcerated, there is every reason to believe that he would have been returned to some type of light-duty work. In fact, the evidence shows that the claimant was being paid his regular salary up through the date of his incarceration.
Just because the claimant did not work at the Department of Correction, he still fails to establish that he is entitled to temporary total disability benefits. The factors that are considered by the Department of Correction in deciding when an inmate may do a particular job are not known at this time and are not set forth in the record. The Commission should not assume that Department of Corrections decisions are based on the same grounds that the respondent employer would have considered had the claimant been available to resume employment.
Accordingly, I find that the claimant re-entered his healing period and became totally incapacitated to earn for the period February 27, 1997 through May 30, 1997, and is entitled to temporary total disability benefits for that period of time only. Therefore, I respectfully dissent from the majority opinion awarding benefits for the period August 30, 1996 through February 19, 1997.
______________________________ MIKE WILSON, Commissioner