Opinion
CLAIM NO. F100487
OPINION FILED MAY 4, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE STEVEN MCNEELY, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by the HONORABLE DAVID C. JONES, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE JUDY RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent No. 2, Death and Permanent Total Disability Trust Fund, appeals an administrative law judge's opinion filed October 25, 2004. The administrative law judge found that an actuarial valuation study proffered by Respondent #2 was not admissible, because it was "not relevant to the substantive issue in this case." The administrative law judge found that Respondent #1 was entitled to a "credit" for the amount of permanent anatomical impairment rating against the first $75,000.00 of permanent and total disability benefits Respondent #1 must pay to the claimant. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that the claimant sustained a compensable injury on November 14, 2000, and that the claimant reached the end of his healing period on December 10, 2002. The parties stipulated that the claimant received a 29% permanent anatomical impairment rating, and that the claimant's impairment rating was being paid by Respondent No. 1.
A pre-hearing order was filed on April 13, 2004. The parties agreed to litigate the following issues:
(1) Whether the claimant was permanently and totally disabled;
(2) In lieu of permanent and total disability, whether the claimant was entitled to wage-loss disability; and
(3) Whether Respondent No. 1 was entitled to credit for payment of permanent partial anatomical disability benefits against its $75,000.00 maximum (Ark. Code Ann. § 11-9-502(b)(1)).
A hearing was held on July 28, 2004, at which time the parties stipulated that the claimant was permanently and totally disabled. The parties stipulated that Respondent No. 1 had controverted the claimant's entitlement to permanent total disability. The attorney for Respondent No. 1 indicated at hearing that Respondent No. 1 had paid "about $28,096.00 towards the PPD. . . . And for the record, the total amount due for the 130.5 weeks, Judge, comes to a total of $38,628.00, if that would be of help to you. . . . So, in other words, there's a balance due towards that cap of $36,372.00 from our position."
Respondent No. 2 proffered an "Actuarial Valuation" concerning "the financial soundness of the trust fund."
The administrative law judge found, in pertinent part:
10. The actuarial valuation study dated June 30, 2003, proffered by Respondent #2, is not admissible because it is not relevant to the substantive issue in this case.
11. Respondent #1 is entitled to a credit for the amount of permanent anatomical impairment rating benefits ultimately paid to Claimant, against the first $75,000.00 of permanent and total disability benefits Respondent #1 must pay, thereby reducing the balance of the $75,000.00 due from Respondent #1. This finding is compelled by the continuing applicability of Death Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992).
Respondent No. 2, the Death and Permanent Total Disability Trust Fund, appealed to the Full Commission. The parties presented oral arguments before the Full Commission on April 13, 2005.
II. ADJUDICATION
A. Actuarial Evaluation
The administrative law judge found, "The actuarial valuation study dated June 30, 2003, proffered by Respondent #2, is not admissible because it is not relevant to the substantive issue in this case." Respondent No. 2 contends that the Full Commission should reverse this finding. Respondent No. 2 cites Ark. Code Ann. § 11-9-101, which includes among the purposes of Arkansas Workers' Compensation Law, "the workers' compensation system in this state must be returned to a state of economic viability." Respondent No. 2 argues that the actuarial study is relevant and admissible in order to show the ability of the Death and Permanent Total Disability Trust Fund "to make timely payments and its overall economic status as a component of Arkansas' workers' compensation system."
Respondent #2 also argues that the Arkansas General Assembly intended for the Commission to consider the Fund's solvency in determining "whether the respondent-carrier is required to pay only $75,000 in permanent total disability benefits or $75,000 in permanent total disability benefits plus the permanent partial anatomical impairment rating." Nevertheless, Respondent No. 2 does not refer the Commission to a statute or other authority indicating that we are to consider the Fund's solvency in adjudicating claims. Nor is the Commission aware of any such authority. The Full Commission therefore affirms the administrative law judge's finding that the actuarial valuation study is not admissible and not relevant to the substantive issue in this case.
B. Weekly Benefits
Ark. Code Ann. § 11-9-502 describes Limitations on compensation — Exceptions.:
(a) The benefits shall be paid for a period not to exceed four hundred fifty (450) weeks of disability, except that this limitation shall not apply in cases of permanent total disability or death.
(b)(1) For injuries occurring on and after March 1, 1981, the first seventy-five thousand dollars ($75,000) of weekly benefits for death or permanent total disability shall be paid by the employer or its insurance carrier in the manner provided in this chapter.
(2) An employee or dependent of an employee who receives a total of seventy-five thousand dollars ($75,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this chapter, but all benefits in excess of seventy-five thousand dollars ($75,000) shall be payable from the Death and Permanent Total Disability Trust Fund.
In the present matter, the parties stipulated that the claimant sustained a compensable injury on November 14, 2000, and that the claimant reached the end of his healing period on December 10, 2002. The parties stipulated that the claimant received a 29% permanent anatomical impairment rating, and that Respondent No. 1 was paying the claimant's impairment rating. The parties stipulated at hearing that the claimant was permanently and totally disabled. Ark. Code Ann. § 11-9-519(a) provides that "In case of total disability, there shall be paid to the injured employee during the continuance of the total disability sixty-six and two-thirds percent (66 2/3%) of his or her average weekly wage." Counsel for Respondent No. 2, the Death and Permanent Total Disability Trust Fund, argued before the Full Commission that benefits for anatomical impairment paid by Respondent No. 1 could not be considered in the $75,000 paid by the employer or its insurance carrier pursuant to Ark. Code Ann. § 11-9-502(b). Counsel for Respondent No. 2 cited Ark. Code Ann. § 11-9-519(e)(1) and Ark. Code Ann. § 11-9-522, which statutes generally apply to wage-loss disability rather than anatomical impairment. Counsel for the Fund contended that the anatomical impairment benefits paid by Respondent No. 1 were a "prerequisite" to wage-loss disability rather than a component of same, and that therefore the payments representing anatomical impairment could not be considered as part of the $75,000 in Ark. Code Ann. § 11-9-502(b).
Nevertheless, the Full Commission notes the provision of Ark. Code Ann. § 11-9-501(c):
(2) Any weekly benefit payments made after the commission has terminated temporary total benefits shall be classified as warranted by the facts in the case and as otherwise provided for in this chapter.
The parties in the present matter stipulated that the claimant was permanently and totally disabled. The parties also stipulated that claimant's healing period ended on December 10, 2002. Respondent No. 1 must therefore pay the claimant "weekly benefits" representing permanent total disability pursuant to Ark. Code Ann. § 11-9-502(b) from the date of the end of claimant's healing period, until the respondent-carrier has paid the claimant $75,000. Benefits paid pursuant to Ark. Code Ann. § 11-9-522(a) are partial benefits and once a determination of permanent and total disability has been made, the benefits due a claimant are no longer governed by 11-9-522 but are found in Ark. Code Ann. § 11-9-502(b) and Ark. Code Ann. § 11-9-519(e). Thus, when a determination of permanent total disability has been made, the benefits paid by a respondent after the end of the healing period are classified as permanent and total disability benefits under Ark. Code Ann. § 11-9-502(b). The statute then provides, "all benefits in excess of seventy-five thousand dollars ($75,000) shall be payable from the Death and Permanent Total Disability Trust Fund."
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge's finding that the actuarial valuation study proffered by Respondent No. 2 is not admissible and not relevant to the substantive issue in the case. The Full Commission affirms the administrative law judge's finding, "Respondent #1 is entitled to a credit for the amount of permanent anatomical impairment rating benefits ultimately paid to Claimant, against the first $75,000.00 of permanent and total disability benefits Respondent #1 must pay, thereby reducing the balance of the $75,000.00 due from Respondent No. 1." The claimant's attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002).
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ SHELBY W. TURNER, Commissioner
________________________________ KAREN H. McKINNEY, Commissioner