Opinion
CLAIM NO. E004991
OPINION FILED JUNE 14, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE SCOTT LAUCK, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Vacated and Remanded.
OPINION AND ORDER
The respondents appeal an order filed by the administrative law judge on October 20, 1994. In that order, the administrative law judge directed the respondents to suspend the payment of permanent partial disability compensation and to reinstate temporary total disability compensation payments for a six week period while the claimant is being evaluated for vocational rehabilitation. After considering this matter, we find the administrative law judge's order must be vacated and that the claim must be remanded.
The claimant sustained a compensable injury on March 10, 1990, and the respondents apparently have paid temporary total disability compensation, compensation for a permanent physical impairment, and medical benefits to him. The claimant has filed a request for vocational rehabilitation, and the respondents have agreed to provide a rehabilitation evaluation at their expense. However, a dispute has arisen regarding whether the respondents should suspend the payment for a permanent physical impairment and pay the claimant temporary total disability compensation while his rehabilitation potential is explored.
Under the Arkansas Workers' Compensation Law, injured workers are entitled to permanent disability compensation based on the degree to which the permanent physical impairments impair his earning capacity, and the extent of permanent physical impairment is generally established by the medical evidence. Ark. Code Ann. § 11-9-522 (Cumm. Supp. (1993). However, in addition to compensation for the extent of permanent physical impairment, the injured worker may be entitled to permanent disability compensation based on the extent that the permanent consequences of the injury have combined with other factors to impair his earning capacity. Ark. Code Ann. § 11-9-522 (b). The factors which may affect the workers' earning capacity include his age, education, training, and work experience. Id.
In addition to the benefits provided elsewhere in the Arkansas Workers' Compensation Law, injured employees may receive compensation for expenses attributable to a program of vocational rehabilitation. Ark. Code Ann. § 11-9-505 (1987). The goal of this statute is to ameliorate the workers' loss of earning capacity by restoring him to the maximum usefulness that he can attain under his physical impairment. Thus, the claimant is compensated as his pre-injury earning capacity is restored to the extent his physical impairment will allow. Obviously, where an injured worker pursues a program of vocational rehabilitation, the extent of permanent impairment to his earning capacity cannot be determined until the program is completed. Therefore, permanent partial disability benefits are to be suspended during the period that the injured employee participates in the program of rehabilitation. Ryan v. Genuine Parts Co., 268 Ark. 1065, 598 S.W.2d 443 (Ark.App. 1980). However, since a program of vocational rehabilitation will not affect the degree of permanent physical impairment sustained by the injured worker, compensation paid for a permanent physical impairment need not be suspended.
Ark. Code Ann. § 11-9-505 does not provide for the payment of additional indemnity compensation while the injured worker participates in a program of vocational rehabilitation. In this regard, the benefits which an injured employee is entitled to receive under this section are limited to the "reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation." Thus, the injured employee's entitlement to benefits under this section is limited to those expenses related to, or necessitated by, the program of vocational rehabilitation. See, e.g., Model Laundry and Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (1980); Gray v. Armour Co., 268 Ark. 1072, 598 S.W.2d 434 (1980); Ryan, supra. However, the statute does provide for the payment of indemnity compensation during the time that the injured employee's potential for rehabilitation is explored by the parties. In this regard, Ark. Code Ann. § 11-9-505 (d) (1987) provides the following:
In addition to the benefits previously enumerated in this section, an employee, if not working or receiving other weekly benefits under this chapter, shall be entitled to payment of his regular weekly benefit rate commencing on the date a request for a rehabilitation program is received by the commission, carrier, or employer and continuing during the period the parties are exploring rehabilitation potential, the period not to exceed six (6) weeks.
Thus, the entitlement to the benefits provided under this subsection commences when the request for a rehabilitation program is received by the Commission, carrier, or employer. Moreover, although a worker's right to these benefits is limited to a maximum of six weeks, the entitlement to these benefits is based on the actual amount of time necessary for the parties to explore the claimant's rehabilitation potential after the request was received. Furthermore, the worker is entitled to compensation under this section only if he is not "working or receiving other weekly benefits under this chapter." Under the Arkansas Workers' Compensation Law "weekly benefits" are paid for temporary disability and for permanent disability. Obviously, the receipt of temporary disability benefits would preclude an award of benefits under Ark. Code Ann. § 11-9-505 (d). Likewise, the receipt of benefits for a permanent physical impairment would also preclude an award under this subsection. However, as discussed, the payment of benefits for permanent disability other than for the degree of permanent physical impairment must be suspended while the claimant's rehabilitation potential is explored.
In short, an award of benefits under this subsection requires the parties to present proof, and for the administrative law judge to make findings regarding the date on which the claimant's entitlement to benefits under this subsection commenced, the length of the period which was required for the parties to explore the claimant's rehabilitation potential, and whether an award is precluded by the claimant's employment or receipt of weekly benefits. In the present claim, the parties did not present proof, and the administrative law judge made no findings, related to these questions. Therefore, we find that the administrative law judge's order must be, and hereby is, vacated and that the claim must be remanded with instructions for the administrative law judge to conduct such proceedings as are necessary to afford the parties an opportunity to present evidence pertaining to all relevant questions related to the claimant's entitlement to benefits under Ark. Code Ann. § 11-9-505 and for the administrative law judge to then file an opinion and order making all necessary findings of fact and conclusions of law. Specifically, the administrative law judge is instructed to make findings of fact and conclusions of law regarding when the commencement of the claimant's potential entitlement to benefits under this statute, the length of time necessary after the commencement of this period for the parties to explore the claimant's rehabilitation potential, and whether the claimant is precluded from receiving benefits under Ark. Code Ann. § 11-9-505 (d) because he was working or receiving weekly benefits in accord with our discussion of that issue in this opinion.
IT IS SO ORDERED.
Commissioner Humphrey dissents.