ARMSTRONG v. WHEELER CONSTRUCTION, 2000 AWCC 2

CLAIM NO. E615744

RAYMOND L. ARMSTRONG, EMPLOYEE CLAIMANT v. WHEELER CONSTRUCTION, EMPLOYER RESPONDENT and CNA INSURANCE CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 4, 2000

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

Claimant appeared Pro Se.

Respondent represented by FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Remanded.

OPINION AND ORDER
[1] The respondent appeals and the claimant cross-appeals a decision of the Administrative Law Judge filed on June 7, 1999, finding that the claimant proved by a preponderance of the evidence that he was entitled to temporary total disability benefits. The Administrative Law Judge found that the claimant was incarcerated during the period he was to receive temporary total disability benefits and was not eligible to receive these benefits. The Administrative Law Judge also found that the spouse or the minor dependent children are entitled to receive these benefits but they must petition the Commission for an award of the benefits for the period that the claimant was incarcerated. No petition was filed in this claim, therefore the claimant’s benefits were not awarded to the claimant’s minor children or to the claimant’s spouse. We hereby remand this case back to the Administrative Law Judge to make a determination if the claimant’s minor child, who has subsequently intervened in this case, is the proper recipient of the claimant’s workers’ compensation benefits.

[2] The claimant sustained an admittedly compensable injury on August 8, 1996, and received workers’ compensation benefits. On August 30, 1996, the claimant was incarcerated at the Arkansas Department of Correction. The evidence indicates that the claimant did not start a prisoner work detail at the Department of Correction until sometime in June of 1997. The claimant contends that he was within his healing period at that time and was entitled to temporary total disability benefits from August 30, 1996 to June 7, 1997. The respondents have appealed the Administrative Law Judge`s decision awarding temporary total disability benefits to the claimant for the period of August 30, 1996 to June 7, 1997. Subsequent to the Administrative Law Judge’s decision, a petition was filed with the Commission requesting that a child by the name of Ashley Armstrong be allowed to intervene as a party to this case. The petition stated that Kathy Armstrong was Ashley Armstrong’s mother. The petitioner was requesting the benefits that the claimant would have received when he was incarcerated. On August 13, 1999, the Full Commission granted the petition.

[3] We hereby remand this matter to the Administrative Law Judge to make a determination as to whether or not the petitioner, Ashley Armstrong, or any other children of the claimant are entitled to the temporary total disability benefits awarded by the Administrative Law Judge to the claimant. No determination has been made that Ashley Armstrong is the minor child of the claimant. Under Ark. Code Ann. § 11-9-812(a)(1):

When any person who receives Workers’ Compensation benefits is incarcerated in an institution under the control of the Department of Correction, the inmates spouse or, if no spouse, the inmates minor dependent children, may petition the Workers’ Compensation Commission to award to the spouse or minor dependent children the inmates’ Workers’ Compensation weekly disability benefits for the period of the claimant’s incarceration.
Until a determination has been made that the claimant’s child or children are proper parties to this action, the Commission cannot hear the merits of the respondent’s appeal. The respondents contend on appeal that the claimant has failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits for the period he was incarcerated.

[4] The Commission hereby reserves the substantive issues of this appeal until a determination has been made whether or not the claimant’s child or children are proper parties to this claim. The Commission hereby remands this case to the Administrative Law Judge to consider all issues consistent with this opinion. We caution the respondents to ensure there are no other minor children of the claimant other than Ashley Armstrong.

[5] IT IS SO ORDERED.

[6] _______________________________
ELDON F. COFFMAN, Chairman

_______________________________
MIKE WILSON, Commissioner

[7] Commissioner Humphrey concurs.