Henson v. General Electric

257 S.W.3d 908, 99 Ark. App. 129, 2007 Ark. App. LEXIS 404
CourtCourt of Appeals of Arkansas
DecidedMay 30, 2007
DocketCA 06-1356
StatusPublished
Cited by10 cases

This text of 257 S.W.3d 908 (Henson v. General Electric) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henson v. General Electric, 257 S.W.3d 908, 99 Ark. App. 129, 2007 Ark. App. LEXIS 404 (Ark. Ct. App. 2007).

Opinion

Robert J. Gladwin, Judge.

Appellant James R. Henson appeals the August 31, 2006 decision of the Arkansas Workers’ Compensation Commission (Commission) finding that he was entitled to wage-loss-disability benefits of thirty-five percent. The Commission also gave appellee Second Injury Fund (Fund) a dollar-for-dollar credit for both long-term-disability benefits and disability-retirement benefits from their obbgation to pay permanent-disabihty benefits. Further, the Commission ordered the Fund to reimburse the employer, appellee General Electric (GE), for any overpayment of temporary-total-disability benefits up to a maximum of the Fund’s liability to pay appellant wage-loss-disability benefits. On appeal, appellant contends that he should be awarded total and permanent-disability benefits, or at a minimum, sixty percent wage-loss-disability benefits. Also, he claims that appellees should not receive a credit for disability-retirement benefits from their obligation to pay permanent-disability benefits. We reverse and remand in part, and affirm in part.

Appellant is fifty-four years old and has a high school education. He began working for GE in 1970 as a utility person, and he later moved into the maintenance department prior to becoming a machine operator. Appellant also obtained vocational training in hydraulics through GE. Appellant sustained a compensable injury on June 12, 2001. At that time, he was earning $19.00 per hour. His total wages exceeded $50,000 per year because he worked considerable overtime. Appellant sustained injuries and surgeries prior to the June 12, 2001 injury. He underwent his first back surgery on December 12, 1995, and he had a second back surgery on April 15, 1996. Further, appellant sustained a knee injury that required surgery on or about June 13, 2002. Due to his compensable back injury on June 12, 2001, appellant underwent a third back surgery on August 15, 2001, followed by an extensive fusion surgery at the L4-L5 level on January 10, 2002. He has not been gainfully employed since the fusion surgery. He takes a number of prescription medications, including Neurontin, Metra-dose, and Lexapro. He testified that he cannot sit for more than ten to fifteen minutes at a time. He has to move from standing to sitting to reclining in order to relieve his pain. He has a difficult time sleeping and sometimes has to roll out of bed onto the floor in order to get up in the morning. He claims that he is unable to lift anything, and he cannot sit or stand without pain becoming an issue. GE provided appellant with job-placement assistance through Rehabilitation Management, Inc. Ms. Heather Naylor, a vocational-rehabilitation consultant, found job opportunities for the appellant; however, appellant did not obtain a job as a result.

Appellant claimed before the Administrative Law Judge (ALJ) that he was permanently-totally disabled or, alternatively, that he had sustained wage-loss disability in excess of the thirty-five percent to the body as a whole, which had been accepted by the Fund. GE claimed that any wage-loss disability over and above the twelve-percent permanent-anatomical-impairment rating was the responsibility of the Fund. GE requested reimbursement from the Fund for any payments made beyond its obligation to pay the twelve- percent permanent-anatomical-impairment rating. It further maintained that any and all wage loss was the responsibility of the Fund, including, but not limited to, the thirty-five percent accepted by the Fund. The Fund maintained that it was not responsible for reimbursement of any overpayment of temporary-total disability as its liability was limited to wage-loss-disability benefits only. The Fund conceded that it had controverted any wage-loss disability in excess of thirty-five percent for purposes of attorney’s fees.

By order filed July 27, 2005, the ALJ made the following findings of fact and conclusions of law:

1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim.
2. The stipulations agreed to by the parties are hereby accepted as fact.
3. The claimant has failed to prove, by a preponderance of the credible evidence, that he is permanently totally disabled.
4. The claimant has shown, by a preponderance of the credible evidence, that he has sustained a wage-loss disability of sixty percent to the body as a whole which was caused by the combined disabilities or impairments, together with the June 12,2001 compensable injury.
5. Respondent # 2 [the Fund] is responsible for all wage-loss disability, specifically, the sixty percent wage-loss disability awarded herein.
6. Respondent # 1 [GE] is not entitled to any reimbursement for overpayment of permanent impairment benefits. Respondent # 1 [GE] did not obtain a final impairment rating from the primary treating physician until April 28,2004, and is estopped from asserting a credit for any alleged overpayment. Furthermore, respondents have failed to prove that any alleged overpayments were considered advanced payments of compensation within the meaning of Ark. Code Ann. § 11-9-807.
7. Respondent # 2 [the Fund] is not entitled to a credit or offset pursuant to Ark. Code Ann. § 11 -9-411.
8. Respondent # 2 [the Fund] has accepted a thirty-five percent wage-loss disability in this claim. Respondent # 2 [the Fund] has controverted all wage-loss in excess of the thirty-five percent acknowledged.
9. Respondent # 1 [GE] has paid all appropriate benefits for which it is hable, including continued, reasonably necessary medical treatment and is not obligated for payment of any attorney’s fees.

By order of August 31, 2006, the Commission reversed in part and modified in part the ALJ’s decision. The Commission found that the evidence demonstrated that appellant was capable of working a job that pays $12.35 an hour. Accordingly, the Commission found that appellant’s loss-of-earning capacity was thirty-five percent. Further, the Commission determined that appellant did not have a financial incentive to work. The Commission found that GE was entitled to be reimbursed by the Fund the $37,136 that GE overpaid the appellant in compensation. Further, appellant was not required to reimburse GE for the overpayment he received. Finally, the Commission found that the Fund should be given a dollar-for-dollar credit for the long-term-disability benefits and disability-retirement benefits received by the appellant.

The Fund filed a motion for the Commission to reconsider its decision that GE was entitled to be reimbursed $37,136 by the Fund for GE’s overpayment to appellant. After considering the motion, the Commission, by order of September 29, 2006, found that its finding should be modified, stating:

Our original finding with respect to [GE’s] entitlement to reimbursement is correct. In addition, our original finding that [the Fund] is entitled to a credit for benefits claimant received pursuant to § 411 is also correct.

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Bluebook (online)
257 S.W.3d 908, 99 Ark. App. 129, 2007 Ark. App. LEXIS 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henson-v-general-electric-arkctapp-2007.