Opinion
CLAIM NO. E402532
OPINION FILED AUGUST 14, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE WILLIAM KROPP, III, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE NATHAN CULP, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on November 15, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a 20% permanent partial disability to the body as a whole, with 5% representing permanent physical impairment and 15% attributable to the loss of earning capacity. The judge found that, based on the offset provision in Ark. Code Ann. § 11-9-522(f) (Repl. 1996), the claimant is not entitled to the payment of any weekly compensation benefits for the 15% permanent partial "disability." The judge found, however, that this offset does not apply to the weekly benefits that represent permanent partial "impairment."
After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed in part and reversed in part. We find that the claimant has sustained a permanent physical impairment of 5% to the body as a whole and an impairment attributable to additional loss of earning capacity of 15% to the body as a whole. Therefore, we affirm the administrative law judge's finding in this regard. We find, however, that the respondents are entitled to an offset of all disability benefits. In this regard, we reverse the administrative law judge's determination that the offset provision does not apply to the benefits that represent "impairment."
The claimant sustained an admittedly compensable injury to his neck on November 26, 1993, while working for the respondent as a security guard. At the time of his injury, the claimant was working 24 hours a week. He testified that on that day, while making rounds on the campus, he slipped and fell on the ice and injured his neck. The claimant reported his injury and sought medical attention. He was eventually referred to Dr. Peter Irwin, an orthopaedic specialist, who assigned the claimant a permanent impairment rating and permanent restrictions on December 6, 1994. The claimant returned to work after this, but he was told that there was no job available with the specified restrictions. The claimant received a letter January 10, 1995, terminating his employment because of these restrictions.
Claimant is 69 years old. He has 10 1/2 years of formal education, but he has no high school diploma or GED. The claimant testified that he has a private investigator or security license. While in the military, about 50 years ago, the claimant received training in truck driving, cooking, and telephone line work. Between 1946-54, the claimant worked as a truck driver, and from 1954-85, he was a co-owner of a pest control company, where he worked in the field. In June 1986, the claimant began working as a security guard with the respondent.
The claimant contends that he is entitled to more than 15% permanent partial disability attributable to a loss or reduction in earning capacity. He also contends that Ark. Code Ann. § 11-9-522(f) (Repl. 1996) is unconstitutional in that it unlawfully discriminates against claimants based on age. The respondents accepted a 5% permanent impairment rating, and it was stipulated that the claimant's compensation rate is $119.
As the injury sustained by this claimant was to his neck, a portion of his body not scheduled under the Act, his entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522 (Repl. 1996). Thus, when determining the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, as well as other factors such as the worker's age, education, work experience, and other matters which may affect the worker's future earning capacity. Id.; Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989).
As a result of the compensable injury, the claimant has been permanently restricted from engaging in any activities that require standing for long periods of time, bending or stooping, or lifting more than 15 pounds. Dr. Irwin also noted that the claimant should not get involved in any situations which might require the use of physical force by or against him. These restrictions would preclude the claimant from obtaining most positions in the areas of private security and private investigating.
After consideration of the foregoing restrictions, along with the claimant's physical limitations, his age, education, and previous work experience, we find that the claimant has sustained a 15% impairment to his earning capacity in excess of the 5% permanent physical impairment established by the medical evidence. In that regard, he has a limitation that would prohibit him from obtaining some positions for which he would be qualified if not for his injury. However, other employment positions exist that are within his restrictions and ability, even in the field of private security. He testified as such in the hearing, indicating that he has sought numerous positions in the private security field and in the janitorial field that would accommodate him.
Therefore, after reviewing the entire record de novo, we affirm the administrative law judge's finding that although the claimant is permanently disabled from the injury, he is not permanently totally disabled, and we affirm the administrative law judge's determination that the claimant sustained a 15% impairment to his earning capacity in excess of the 5% permanent physical impairment. Accordingly, we find that the claimant has sustained a permanent partial disability of 20% to the body as a whole, with 5% representing the permanent anatomical impairment to the body as a whole and 15% representing the impairment attributable to the loss or decrease in earning capacity.
The claimant also raises the constitutionality of Ark. Code Ann. § 11-9-522(f) (Repl. 1996). In a recent Court of Appeals opinion, the Court of Appeals held that it is proper for the Commission to address and resolve constitutional issues. Green v. Smith Scott Logging, CA94-724, opinion delivered June 5, 1996. Therefore, it is appropriate for us to address the constitutionality of Ark. Code Ann. § 11-9-522(f) (Repl. 1996) which provides:
Any permanent partial disability benefits payable to an injured worker age sixty-five (65) or older shall be reduced in an amount equal to, dollar-for-dollar, the amount of benefits the injured worker received or is eligible to receive from a publicly or privately funded retirement or pension plan but not reduced by the employee's contributions to a privately funded retirement or pension plan. The purpose and intent of this subsection is to prohibit workers' compensation from becoming a retirement supplement.
On it's face, Ark. Code Ann. § 11-9-522(f) sets out a classification between persons sixty-five years of age and older and those sixty-four years of age and younger. In addressing the constitutionality of age classifications set forth in Arkansas statutes, the Arkansas Supreme Court has stated:
At the outset, we observe that an Arkansas act is presumed constitutional, and the burden rests upon the party challenging that constitutionality. In addition, if a classification exists in an Arkansas statute and that classification has a rational basis and is neither unreasonable nor arbitrary, that statute will not be struck down on equal protection grounds. Carney v. State, 305 Ark. 431, ___ S.W.2d ___ (1991).
In previous Full Commission opinions, we held that a claimant was barred from receiving wage loss benefits when a claimant is drawing retirement benefits such as a pension plan or social security disability benefits. However, those holdings preceded the enactment of A.C.A. § 11-9-522(f) in Act 796. On appeal the Arkansas Court of Appeals reversed our decision which denied permanent and total disability benefits or wage loss disability benefits when our findings were based upon the receipt of social security or pension benefits due to the claimant's age. In those cases, the Court of Appeals said:
Furthermore, in 1986, the legislature made extensive amendments restricting the receipt of wage loss disability benefits. See, Act 10 of 1986, now codified at Ark. Code Ann. § 11-9-522 (1987). Nowhere in these amendments is there a reference to the prohibition of workers' compensation benefits when a claimant is receiving or is entitled to received social security benefits. . . [A]t this time, we have 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. . . . By this opinion, we do not mean to imply that the receipt of social security benefits could not be a factor in wage loss determinations. We state only that such benefits may not act as an absolute bar in the calculation of wage loss disability benefits.
Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); Reed v. Reynolds Metals, 33 Ark. App. 89, 801 S.W.2d 661 (1991). Faced with this and similar holdings, the General Assembly passed and enacted sweeping changes to the Arkansas Workers' Compensation Statute. Act 796 of 1993 in Section 24 attempted to correct the problem addressed by the Arkansas Court of Appeals by specifically setting forth statutory authority providing for the reduction in permanent partial disability benefits when a claimant is receiving benefits or is eligible to receive benefits from a publicly or privately funded retirement or pension plan.
Contrary to the allegations of the claimant, the Equal Protection Clause of the 14th Amendment is not violated simply because the Workers' Compensation Act treats claimants sixty-five years of age and older differently than those sixty-four years of age and younger. The question which must be addressed is whether this classification of injured workers' bears a rational relationship to a legitimate state objective. As previously noted, "If a classification exists in an Arkansas statute and that classification has a rational basis and is neither unreasonable nor arbitrary, that statute will not be struck down on equal protection grounds. Carney v. State, supra. The classification will be upheld if any state of facts reasonably may be conceived to justify it." Peterson v. Garvey Elevators, Inc., 850 P.2d 893 (Kan. 1993). The receipt of workers' compensation benefits is not a fundamental right. Thus, the rational basis test applies in determining whether classifications for providing benefits violate the equal protection guarantees of the constitution. Industrial Claims Appeals Office of the State of Colorado v. Ramaro, 912 P.2d 62 (Col. 1996).
In Ark. Code Ann. § 11-9-101(B), the Legislature set forth the following:
The primary purposes of the workers' compensation laws are to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom and then to return the worker to the workforce, and to improve workplace safety through safety programs; improve health care delivery through the use of managed care concepts; encourage the return to work of injured workers; deter and punish frauds of agents, brokers, solicitors, employers and employees relating to procurement of workers' compensation coverage or the provision or denial of benefits; curtail the rise in medical costs associated with the provision of workers' compensation benefits; and emphasize that the workers' compensation system in this state must be returned to a state of economic viability. (Emphasis added.)
Furthermore, § 11-9-1001 states:
The Seventy-Ninth General Assembly realizes that the Arkansas Workers' Compensation statutes must be revised and amended from time to time. Unfortunately many of the changes made by this act were necessary because Administrative Law Judges, the Workers' Compensation Commission, and the Arkansas Courts have continually broadened the scope and eroded the purpose of the Workers' Compensation statutes of this state. The Seventy-Ninth General Assembly intends to restate that the major and controlling purpose of Workers' Compensation. . . When, and if, the Workers' Compensation statutes of this state need to be changed the General Assembly acknowledges its responsibility to do so. It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any Administrative Law Judge, the Workers' Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act. In the future if such things as the Statute of Limitations; the standard of review by the Workers' Compensation Commission or courts; the extent to which any physical condition, injury or disease should be excluded from or added to coverage by the law; or the scope of the Workers' Compensation statutes need to be liberalized, broadened, or narrowed it shall be addressed by the General Assembly and should not be done by Administrative Law Judges, the Workers' Compensation Commission or the courts.
Moreover, Ark. Code Ann. § 11-9-522(f)(2), specifically stated that "[t]he purpose and intent of [the reduction in benefits] is to prohibit workers' compensation from becoming a retirement supplement." Thus, the Legislature has not only stated that the Arkansas Workers' Compensation system must be returned to a state of economic viability, it also specifically stated that a reduction in permanent partial disability benefits by the amount of benefits an injured worker receives or is eligible to receive from a publicly or privately funded retirement or pension plan is to prohibit workers' compensation from becoming a retirement supplement. Moreover, the line drawn at age sixty-five is neither unreasonable nor arbitrary. In most cases, one does not become eligible for full social security retirement benefits or from privately funded retirement pension benefits until one reaches the age of sixty-five. Thus, the line drawn at age sixty-five does not approach the level of irrationality or arbitrariness.
Moreover, the purpose of Act 796 is to see that an injured worker is fully compensated for his injury and disability, but not to collect overlapping awards. A claimant drawing pension benefits has declared himself retired from the workforce. To allow wage loss disability for the loss of earning capacity is contrary to this declaration.
Accordingly, we find that the offset provision in Ark. Code Ann. § 11-9-522(f) does not offend the Equal Protection Clause. After retirement age, the protection from wage loss afforded by compensation benefits is provided by social security benefits and pension plans. One's loss of earnings is due to retirement or the reaching of retirement age, and not to disability. Accordingly, the legislative classification of those sixty-five years of age and older is based upon a reasonable and rational basis.
Although we affirm the administrative law judge with respect to the finding of permanent partial disability of 20% to the body as a whole, we find that the administrative law judge's application of the law as set forth in Ark. Code Ann. § 11-9-522 (Repl. 1996) must be reversed. More specifically, it is in the application of subsection (f) that the administrative law judge's findings should be reversed.
Since the claimant's injury occurred after July 1, 1993, the provisions of Act 796 of 1993 apply to this claim, and resolution of this claim involves the interpretation of a provision added to the Arkansas Workers' Compensation Law by Act 796 which has not yet been interpreted. Prior to Act 796, the Arkansas Workers' Compensation Law was to be construed liberally, in accordance with the remedial purposes of the law. The liberal construction of a statute "expands the meaning of the statute to meet cases which are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such an interpretation is not inconsistent with the language used."Black's Law Dictionary, 283 (5th ed 1979).
As amended by Act 796, however, the provisions of the Arkansas Workers' Compensation Law are now to be strictly construed. Ark. Code Ann. § 11-9-704(c)(3) (Cumm. Supp. 1995). A strict construction "is construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes nothing that is not expressed, takes the language used in its exact and technical meaning and admits no equitable considerations or implications."Black's Law Dictionary, sura at 283; see also, Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); (1993); Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980); Arkansas State Highway Commission v. S.W. Bell, 206 Ark. 1099, 178 S.W.2d 1002 (1944)(McFaddin, J., dissenting).
Furthermore, the General Assembly expressly admonished this Commission not to liberalize, broaden, or narrow the workers' compensation statutes. Ark. Code Ann. § 11-9-1001 (Cumm. Supp. 1995). Thus, applying the strict construction doctrine and considering this legislative admonishment, we cannot read anything into the Act that is not clearly stated in its language, unless the failure to do so would do manifest violence to the intent of the General Assembly.
However, even when a statute is to be strictly construed, the first rule of any statutory interpretation is to construe the language just as it reads, giving the words their ordinary and usually accepted meaning in common language. Mountain Home School District v. T.M.J. Builders, 313 Ark. 661, 858 S.W.2d 661 (1993). Moreover, the basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); Mountain Home School District. Consequently, where the language of the statute is plain and unambiguous, the legislative intent is determined from the ordinary meaning of the language used. Id. When the General Assembly uses words that have a fixed and well known legal significance they are presumed to have been used in that sense. Young v. Energy Transportation Systems, Inc. of Arkansas, 278 Ark. 146, 644 S.W.2d 266 (1983).
In addition, where ambiguous language is used or the context is uncertain, unless a particular sentence or phrase clearly conveys the legislative intent, the entire Act or section dealing with the subject matter must be looked to as a guide to interpretation. Fiser v. Clayton, 221 Ark. 528, 254 S.W.2d 315 (1953). However, even where statutes are to be construed strictly, common sense may be used in determining the legislative intent. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994);Clark v. State, 304 Ark. 84 (1992). Moreover, statutes are not to be so strictly construed that the interpretation leads to absurd results or defeats the plain purpose of the law. Thomas v. State,supra; Hice v. State, supra; Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985).
In interpreting statutes, we must look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, contemporaneous legislative history, or other appropriate matters that throw light on the matter. Hanford Produce Co. v. Clemons, 242 Ark. 240, 412 S.W.2d 828 (1976). Applying the foregoing law to the facts as presented in this case, it appears that the administrative law judge's interpretation of Ark. Code Ann. § 11-9-522(f) (Repl. 1996) as it applies to permanent disability benefits is contrary to the existing case law and the plain language of the statute.
This jurisdiction has historically recognized two components of permanent disability benefits for unscheduled injuries. The first is the permanent physical impairment component, or the anatomical impairment to the body as a whole. The second, that commonly referred to as the wage loss component, is that component which represents impairment as a result of the loss of earning capacity which is caused by the injury and other factors.
These two components are not separate and distinct types of benefits payable to an injured worker who has sustained a permanent compensable injury. Indeed, "disability," within the meaning of the workers' compensation law, includes loss of use of the body to earn substantial wages, as well as anatomical impairment. Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). A person can be disabled if the injury has caused a physical loss or an inability to earn as much as he was earning when he was hurt. Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985); Bragg v. Evans-St. Clair, Inc., 15 Ark. App. 53, 688 S.W.2d 956 (1985).
Indeed, the court, in Terrell v. Austin Bridge Co., 10 Ark. App. 1, 660 S.W.2d 941 (1983), noted that "we think it clear that a person injured on the job may suffer disability because of a physical loss or because of an inability to earn as much as he was earning when he was hurt and that a person can be disabled who has lost either or both." Therefore, despite there being no reference to "physical impairment" in the definition of disability, it is clear that "disability," as expressed in the Act, encompasses both anatomical impairment and impairment attributable to earning capacity.
The Supreme Court has also held that the Legislature's use of the term "loss of use of the body as whole" in Ark. Code Ann. § 522 (then codified at Ark. Stat. Ann. § 81-1313) does not mean merely functional disability but includes loss of use of the body to earn substantial wages. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Terrell, 10 Ark. App. 1, 660 S.W.2d 941 (1983); Glass, 233 Ark. 786, 346 S.W.2d 685 (1961). In Arkansas Best Freight v. Brooks, 244 Ark. 191, 424 S.W.2d 377 (1968), the court found the following:
The pronouncement in Glass . . . settled the law with reference to nonscheduled injuries. "Loss of the use of the body as a whole" involves two factors. The first is the functional or anatomical loss. That percentage is fixed by medical evidence. Secondly, there is the wage-loss factor, that is, the degree to which the injury has effected claimant's ability to earn a livelihood.
See also Cook v. Alcoa, 35 Ark. App. 16, 811 S.W.2d 329 (1991);M.M. Cohn v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark.App. 1979).
In addition, just as "loss of use of the body as a whole" involves two factors, so does "disability," as both terms encompass both components of permanent partial disability. In this regard, it is widely recognized that these two components are indeed components and not separate and distinct types of disability payments.
The key to the understanding of this problem is the recognition, at the outset, that the disability concept is a blend of two ingredients, whose recurrence in different proportions gives rise to most controversial disability questions: the first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything.
The two ingredients usually occur together; but each may be found without the other. . . The proper balancing of the medical and the wage loss factors is, then, the essence of the "disability" problem in workmen's compensation.
A. Larson, Law of Workmen's Compensation, § 57.10 (1996). Likewise, the Supreme Court has held that permanent partial disability can consist of functional disability or loss in earning capacity or a combination of both. Dacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W.2d 713 (1971); Wilson Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968).
Based on the analysis of case law, it is clear that in determining permanent partial disability, two separate components or "ingredients" are to be considered. That principle is well settled in Arkansas. However, as illustrated by the holdings of many of the cases cited above, the two components of permanent partial disability are just that — components. They are not separate and distinct compensation benefits payable to one who suffers a permanent compensable injury. Therefore, since there are two factors to consider in determining an injured worker's permanent partial disability compensation, it logically follows that the term "disability" then encompasses both factors, or components. "Disability" does not, therefore, simply refer to one component, the loss of earning capacity.
In interpreting this statute, we should also note that it is permissible to examine, among other things, the title of the statute. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992); Morely v. Capital Transp. Co., 217 Ark. 583, 232 S.W.2d 641 (1950); Roscoe v. Water Sewer Improvement Dist. No. 1, 216 Ark. 109, 224 S.W.2d 356 (1949). The title of Ark. Code Ann. § 11-9-522 (Repl. 1996) is "Compensation for disability — Unscheduled permanent partial disability." The title explicitly covers unscheduled permanent partial disability as a whole and includes subsections that cover both the anatomical impairment and impairment attributable to additional loss of earning capacity. This would certainly support the proposition that "disability" itself refers to both components, and that the entire statute is designed to cover both components.
In light of the foregoing analysis, the interpretation of subsection (f) easily follows. Subsection (f) provides the following:
Any permanent partial disability benefits payable to an injured worker age sixty-five (65) or older shall be reduced in an amount equal to, dollar-for-dollar, the amount of benefits the injured worker received or is eligible to receive from a publicly or privately funded retirement or pension plan but not reduced by the employee's contributions to a privately funded retirement or pension plan. The purpose and intent of this subsection is to prohibit workers' compensation from becoming a retirement supplement.
In his opinion, the administrative law judge found that by its specific wording, the provisions of Ark. Code Ann. § 11-9-522(f) (Repl. 1996) limit the application of this subsection to permanent partial disability benefits. That is the plain language of the statute and a correct interpretation. The administrative law judge went a step further, however, and found that although the legislature recognizes that permanent benefits may be awarded for permanent physical impairment, it did not see fit to specifically apply the set off to this form of benefits.
That holding, however, is inconsistent with the preceding conclusion that permanent partial disability compensation refers to both anatomical impairment and impairment attributable to the loss of earning capacity. The stated purpose of subsection (f) is to prohibit workers' compensation from becoming a retirement supplement. The General Assembly, in enacting Act 796, also provided a declaration that admonished the Commission not to liberalize or broaden the scope and purpose of the workers' compensation statutes.
The Seventy-Ninth General Assembly realizes that the Arkansas workers' compensation statutes must be revised and amended from time to time. Unfortunately, many of the changes made by this act were necessary because administrative law judges, the Workers' Compensation Commission, and the Arkansas courts have continually broadened the scope and eroded the purpose of the workers' compensation statutes of this state. . .
Ark. Code Ann. § 11-9-1001 (Repl. 1996).
Accordingly, it is clear that subsection (f), by its plain language, refers to permanent partial disability benefits, which represents two components — one which is based on a functional or anatomical impairment, and the other which is based on an impairment attributable to a lack of earning capacity. Therefore, we find that the offset provided in subsection (f) applies to both components of permanent partial disability.
Applying the law to the facts in the instant case, the evidence shows that the claimant is receiving social security retirement benefits in the amount of $575 per month, or $132.69 per week. This would exceed the claimant's weekly compensation rate of $119. Therefore, after applying the dollar-for-dollar offset mandated in Ark. Code Ann. § 11-9-522(f) (Repl. 1996), the claimant is not entitled to any actual payments from the respondents for his permanent partial disability. Therefore, the respondents are entitled to an offset of all disability benefits.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we affirm the administrative law judge's determination that the claimant is permanently partially disabled, and that the claimant has sustained a permanent partial disability of 20% to the body as a whole. We find, however, that the offset provision in Ark. Code Ann. § 11-9-522(f) (Repl. 1996) applies to all permanent partial disability benefits. Therefore, we find that the claimant is not entitled to any payments from the respondents based on the dollar-for-dollar offset. Consequently, we find that the administrative law judge's decision in this regard must be reversed.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (1987). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715(b) (1987).
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant has sustained no more than a 15% wage loss disability.
Claimant is sixty-nine years old and does not have a high school diploma or a GED. He received his only vocational training some fifty years ago while in the army and, in any event, can no longer perform the task for which he was then trained (driving heavy trucks). Claimant's work experience consisted of truck driving and route cigarette sales from 1946-54, and he co-owned and operated a pest control company from 1954-85. He began his employment with respondent as a security guard in 1986. Claimant's physician has imposed restrictions that prohibit frequent bending and stooping, lifting of more than fifteen pounds, prolonged standing or walking, stair climbing, or situations which involve the potential for the use of physical force.
Taking claimant's degree of anatomical impairment in conjunction with the facts outlined above, as we are permitted to do by Ark. Code Ann. § 11-9-522(b), I am of the opinion that claimant has sustained far more than a 15% wage loss disability. He can no longer perform his pre-injury employment duties as a security guard, and respondent employer did not have a light-duty position to offer. Consequently, claimant received a termination letter on January 10, 1995. Despite his considerable efforts to look for work (not limited to inquiries in the security field), claimant has been unable to obtain a new position.
In addition, claimant's tenure as the owner-operator of a pest control business consisted primarily of labor-intensive supervisory work on job sites, and his office management skills appear to be minimal. His sales experience is antiquated and truck driving is no longer compatible with his medical restrictions.
In sum, assuming he could even find available positions in light of his age, claimant is all but physically precluded from working in any of his previous fields or utilizing what experience he has. Claimant has thus been put in the unfortunate position of having to pursue a form of employment, e.g. sedentary, that his education and background have not equipped him to obtain.
II.
To diminish their liability, respondents have relied on the offset provision of Ark. Code Ann. § 11-9-522(f)(1) and (2), which state:
(1) Any permanent partial disability benefits payable to an injured worker age sixty-five (65) or older shall be reduced in an amount equal to, dollar-for-dollar, the amount of benefits the injured worker received or is eligible to receive from a publicly or privately funded retirement or pension plan but not reduced by the employee's contributions to a privately funded retirement or pension plan.
(2) The purpose and intent of this subsection is to prohibit workers' compensation from becoming a retirement supplement.
The majority has concluded that this provision applies to both the anatomical and wage loss components of permanent partial disability. In light of our controlling case law, this result is virtually inescapable. However, it should not be left unsaid that the above statute is capable of extremely harsh results, and its proffered justification in subsection (2) amounts to little more than a disincentive for elderly workers to remain in or rejoin the work force.
When judged by its practical effects, the statute takes on the appearance of a punitive measure levied against Arkansas' elderly workers. The result in the instant case perfectly illustrates what can often happen when one of the "legitimately injured workers" Act 796 is designed to assist (See Ark. Code Ann. § 11-9-101(b) falls prey to an offset.
Claimant sustained an unquestionably compensable injury which has resulted in a 5% permanent anatomical impairment and a wage loss disability determined by the majority to be 15%. Claimant's total partial disability is thus 20%. However, because his $575 monthly Social Security income exceeds the monetary amount that a 20% rating translates into, the dollar-for-dollar offset of Ark. Code Ann. § 11-9-522(f) operates to leave claimant with no disability award (while he is at the same time left with no job) — simply because he is over sixty-five years old.
Oddly enough, the statute does not apply to early retirees who draw from private retirement funds. Only those sixty-five or older are arbitrarily set aside as members of a caste whose permanent partial disability awards are subject to diminution. These older workers, whose injuries will be no less real than those of others who are under sixty-five years of age, will nonetheless receive different treatment under the law.
In addition, I do not think permanent partial disability benefits can be properly viewed as a "retirement supplement" when received by an injured elderly worker. One component of such benefits, the anatomical impairment rating, compensates an injured worker only for the physical loss to the body caused by a work-related injury, and can thus in no way be construed as "supplement" to retirement benefits.
The other component, a claimant's wage loss factor, is designed to compensate an injured worker for the loss to his earning capacity occasioned by a nonscheduled work-related injury. Most elderly people who work are already trying to supplement their sometimes insufficient retirement income. Ark. Code Ann. § 11-9-522(f) allows a compensable injury to possibly eradicate wages that an elderly claimant was presently earning at the time of injury and may have been relying on heavily. Unfortunately, when an injury detracts from one's wage earning ability, it does not, at the same time, reduce one's need for those wages. It is disappointing that those who are often among the most needy of claimants, and who have usually already contributed a lifetime to Arkansas' work force, are also among the most harshly dealt with under the new Act.
For the reasons set forth hereinabove, I must respectfully dissent.
PAT WEST HUMPHREY, Commissioner