BERNARD v. CITY OF WEST HELENA, 1994 AWCC 176

CLAIM NO. E215129

CONNIE BERNARD, EMPLOYEE, CLAIMANT v. CITY OF WEST HELENA, EMPLOYER, RESPONDENT and MUNICIPAL LEAGUE — WCT, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 28, 1994

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by ROBERT J. DONOVAN, Attorney at Law, Marianna, Arkansas.

Respondent represented by J. CHRIS BRADLEY, Attorney at Law, No. Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on November 19, 1993. In said order, the Administrative Law Judge found among other things that claimant has proven by a preponderance of the credible evidence that she is entitled to temporary total disability benefits from August 5, 1992 through December 7, 1992.

[3] After carefully conducting a de novo review of the entire record, we find that claimant is not entitled to payment of temporary total disability benefits from respondent. Therefore, we reverse the decision of the Administrative Law Judge.

[4] Claimant began working for the City of West Helena in 1987. In January of 1991, claimant was elected City Clerk. On August 4, 1992, claimant sustained an admittedly compensable injury. However, claimant did not begin missing work as a result of this injury until August 15, 1992. Claimant was unable to return to work until December 2, 1992. During this time period, claimant’s medical bills were paid by the city’s workers’ compensation carrier. The carrier did not pay temporary total disability benefits because the city continued to pay claimant’s full salary until it was discovered she was embezzling municipal funds. At no time did claimant object to the payment of her salary by the city during this time period.

[5] The city quit issuing salary checks to claimant because it discovered that she had embezzled municipal funds. In February of 1993, claimant was charged with Theft of Property and Abuse of Office. On June 7, 1993, claimant pled guilty to the charges filed.

[6] Claimant presently maintains that she is entitled to temporary total disability benefits for the time period she received her full salary.

[7] It is undisputed that claimant was incapacitated from earning wages from August 15, 1992 through December 2, 1992. However, during part of this time period, the city continued to pay claimant full wages. The payment of the money to the claimant was not payment under a disability insurance policy. Furthermore, the payments were not under any employment benefit “plan”. Rather, the city continued to pay the wages pursuant to A.C.A. § 14-42-113 (1987) which provides that “the salaries of officials of the first . . . class . . . may be increased, but not decreased, during the term for which officials have been elected or appointed.” Consequently, claimant had the legal right to the clerk’s salary regardless of whether she was capable of earning wages. Obviously, claimant was not receiving her wages as a gratuity.

Arkansas Code Ann. § 11-9-807 (1987) provides:

If the employer has made advance payment of compensation, he shall be entitled for reimbursement out of any unpaid installment or installments of compensation due. If the injured employee receives full wages during disability. he shall not be entitled to compensation during the period.
(Emphasis added.)

[8] This is not a case in which the employer is seeking reimbursement of compensation payments. This is a case in which claimant received full wages during disability. The second sentence of A.C.A. § 11-9-807 is clearly controlling. The Administrative Law Judge erred in relying upon the first sentence. Furthermore, the cases cited by the Administrative Law Judge, Emerson Electric Co.v. Cargo, 5 Ark. App. 123, 633 S.W.2d 389 (1982) and Varnellv. Union Carbide American Motorists, 29 Ark. App. 185, 779 S.W.2d 542 (1989), are distinguishable from the case at bar.

[9] The issue and the facts in Cargile are distinguishable. In Cargile, claimant’s private group insurance policy for which he had paid began making payments. Respondent sought to reduce its liability by the amount paid by claimant’s private insurance policy. As stated, claimant, in the case at bar, was not receiving benefits paid under an insurance policy or a plan. Respondent continued to pay wages pursuant to a mandatory statute. Respondent is not attempting to seek a credit for payments or to offset an award of additional compensation benefits under a claimant’s own group policy for which he or she paid.

[10] Also, the Varnell case is distinguishable. InVarnell, the issue was whether payments made by a respondent were advance payments for compensation where a setoff could be allowed or whether the payments were merely sick paid benefits for which there could be no setoff. Again, inVarnell, claimant was receiving payments under an occupational group insurer plan. The court ruled that this does not constitute advance payment of compensation.

[11] We find that the Administrative Law Judge erred by relying on the aforementioned cases and by disregarding the second sentence of A.C.A. § 11-9-807 which is clearly controlling in this case. Therefore, we reverse the decision of the Administrative Law Judge and find that claimant is not entitled to payment of temporary total disability benefits from the respondent during the time period of August 7, 1992 through December 2, 1992.

[12] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[13] Commissioner Humphrey dissents.