Wheeler Construction Co. v. Armstrong

41 S.W.3d 822, 73 Ark. App. 146, 2001 Ark. App. LEXIS 214
CourtCourt of Appeals of Arkansas
DecidedMarch 14, 2001
DocketCA 00-875
StatusPublished
Cited by50 cases

This text of 41 S.W.3d 822 (Wheeler Construction Co. v. Armstrong) 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
Wheeler Construction Co. v. Armstrong, 41 S.W.3d 822, 73 Ark. App. 146, 2001 Ark. App. LEXIS 214 (Ark. Ct. App. 2001).

Opinion

Olly NEAL, Judge.

Appellant, Wheeler Construction Company, appeals the Workers’ Compensation Commission’s award of benefits to appellee, Raymond Armstrong, for a burn injury he received while working for appellant. Appellant makes two arguments in this appeal. For its first point on appeal, appellant contends that the Commission erred in determining that Armstrong is entitled to temporary total disability benefits because he failed to demonstrate a total incapacity to earn wages during his healing period. For its second point on appeal, appellant argues that Arkansas Code Annotated section 11-9-812 (Repl. 1996) should be interpreted to permit an inmate’s spouse or minor dependent child to receive permanent disability benefits or permanent partial disability benefits, but not temporary total disability benefits, since the latter are intended to replace the earnings of a worker who, but for his injury, would be able to earn income.

Both parties agreed that Armstrong suffered a compensable injury on August 8, 1996, when he spilled hot tar on his right arm. Armstrong initially sought medical treatment at the Ouachita County Medical Center emergency room. He continued medical treatment at the medical center through the month of August. During that period, appellant continued to pay Armstrong regular wages based on the amount of work performed by his coworkers. Appellant discontinued paying Armstrong wages after he was incarcerated in the Arkansas Department of Correction on August 30, 1996.

Dr. George Gray III treated Armstrong while he was incarcerated. Dr. Gray treated Armstrong’s burn with debridement, antibiotics, and analgesics. Over the course of the treatment, Armstrong developed a keloid over his forearm which Dr. Gray initially attempted to treat with topical florinated corocosteroids. After this course of treatment proved unsuccessful, Dr. Gray injected the keloid with Kenalog on at least two occasions. Because Armstrong’s condition remained stagnant, Dr. Gray resorted to C02 laser destruction of the keloid in February 1997. Dr. Gray surmised that Armstrong would need at least three months before he could return to work and that he could not determine when Armstrong could return to work with no restrictions. While incarcerated, Armstrong returned to the workforce operating a sewing machine at the prison on June 9, 1997. Armstrong contends that he is entitled to temporary total disability benefits from August 8, 1996, through May 30, 1997.

Pursuant to Arkansas Code Annotated section 11-9-521 (a) (Kepi. 1996), the Commission determined that Armstrong was entitled to the benefits that he sought because he remained in his healing period from August 8, 1996 through May 30, 1997, and because he had not returned to work. The Commission also determined that his dependent daughter, Ashley Armstrong, properly petitioned the Commission to receive the benefits to which her father was entitled while he was incarcerated pursuant to Arkansas Code Annotated section ll-9-812(a)(l).

When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Ritchie Grocery v. Glass, 70 Ark. App. 22, 16 S.W.3d 289 (2000). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). The Commission’s decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Johnson v. Democrat Printing & Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997).

Entitlement to Disability Benejits

In this appeal, appellant argues that Armstrong is not entitled to disability benefits because he has failed to demonstrate an incapacity to earn wages during the entire period of August 8, 1996, until May 30, 1997. Appellant correctly notes that there is no mention of Armstrong’s ability or inability to work in any documents prior to Dr. Gray’s note regarding the laser surgery performed in February 1997.

Prior to the amendments of Act 796 of 1993, Arkansas Code Annotated section 11-9-521 (a) provided:

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 supplied.)

Before the passage of Act 796, our supreme court defined temporary total disability as “that period within the healing period in which the employee suffers a total incapacity to earn wages.” Arkansas State Highway & Transp. Dep’t v. Breshears, 272 Ark. 244, 246, 613 S.W.2d 392, 393 (1981). Thus, the healing period and the period of temporary total disability are not one and the same.

Arkansas Code Annotated section 11-9-521 (a) now provides:

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 schedule....(Emphasis supplied.)

Appellant contends that the amendment to section 11-9-521 (a) codified the supreme court’s decision in Breshears and requires a claimant seeking temporary total disability benefits to show (1) that he remains in his healing period, (2) that he is totally incapacitated to earn wages, and (3) that he has not returned to work.

The Commission disagreed with appellant’s interpretation of the General Assembly’s intentions in amending section 11-9-521 (a). The Commission concluded that the legislature did not intend to codify Breshears based on three distinct reasons. First, the Commission explained that notably absent from the amended statute is any use of the term “disability” or the phrase “incapacity to earn wages.” The Commission concluded that if the General Assembly had intended to amend the law to require a claimant to specifically prove “an incapacity to earn” or a “disability” as a prerequisite to temporary benefits for a scheduled injury, it would have used some language to that effect or would have at least referenced the Breshears decision. Second, the Commission determined that to the extent the General Assembly had some prior decision in mind when amending the section, it clearly meant to overrule the Commission’s decisions interpreting the section to permit a worker to receive temporary total benefits even after returning to work.

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Bluebook (online)
41 S.W.3d 822, 73 Ark. App. 146, 2001 Ark. App. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-construction-co-v-armstrong-arkctapp-2001.