CLAIM NO. E108137
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 1, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOHN W. GOODSON, Attorney at Law, Texarkana, Arkansas.
Respondent No. 1 represented by the HONORABLE RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] Respondent No. 2, the Death and Permanent Total Disability Trust Fund, appeals an opinion and order filed by the administrative law judge on December 11, 1997. In that opinion and order, the administrative law judge found that Respondent No. 1, the Public Employee Claims Division, is entitled to a credit of $9,702.00 paid in permanent disability benefits as a result of the claimant’s October 5, 1988 injury against its maximum liability. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be reversed. [3] The claimant in this case suffered two injuries while employed by the respondent. The first of these injuries occurred on October 5, 1988, and the second was on March 26, 1991. Both injuries were either accepted as compensable by the respondent or were found to be compensable by the Commission as the result of litigation. An opinion from the administrative law judge found that the claimant was permanently and totally disabled as a result of the 1991 injury. An appeal of that decision was subsequently dismissed. [4] The Public Employee Claims Division paid the claimant a total of $9,702.00 in permanent partial disability compensation as a result of the claimant’s 1988 injury. The Public Employee Claims Division asserts that it is entitled to a credit of $9,702.00 toward the statutory limit of $75,000.00 that must be paid by a respondent-carrier in cases of permanent total disability. The Public Employee Claims Division cites as authority for its alleged credit the Court of Appeals decision in Death and Permanent TotalDisability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992), and Ark. Stat. Ann. § 81-1313(f)(i) (Repl. 1976), which states in relevant part;
[5] The Death and Total Disability Trust Fund challenged the credit sought by the Public Employee Claims Division on two grounds. First, the Death and Permanent Total Disability Trust Fund asserted that in order to establish entitlement to a credit pursuant to Ark. Stat. Ann. § 81-1313(f)(1), the respondent carrier must establish that the employee’s two injuries combined(f) Second injury: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto:
(1) If an employee receives a permanent injury after having previously sustained another permanent injury in the employ of the same employer, for which he is receiving compensation, compensation for the subsequent injury shall be paid for the healing period and permanent disability by extending the period and not by increasing the weekly amount. When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability as provided in § 10(a) [§ 81-1310] of this Act.
In determining when Fifty Thousand Dollars ($50,000) in weekly benefits has been paid for permanent total disability awarded under Section 10(a) [§ 81-1310] of this Act, the weekly benefits paid for the prior injury shall be added to the weekly benefits paid for the subsequent injury.
to cause permanent and total disability, and that the facts in this case indicate that claimant’s permanent and total disability was attributable solely to his second injury. Second, the Death and Permanent Total Disability Trust Fund asserted that the Public Employee Claims Division’s method of calculating the start of the Death and Permanent Total Disability Fund’s liability was also contrary to Ark Stat. Ann. § 1313(f)(l) on the assertion that the Public Employee Claims Division’s calculation incorporates periods when the claimant in effect, concurrently received permanent partial disability benefits for his first injury and temporary total disability benefits for his second injury. Neither of these aspects of Ark. Stat. Ann. § 81-1313(f)(1) were specifically decided by the Court of Appeals in Whirlpool, supra. [6] Subsequent to the administrative law judge’s decision in this case, the Arkansas Supreme Court decided Nelson v. TimberlineInternational, Inc., 332 Ark. 165, ___ S.W.2d ___ (1998). In that decision, the Supreme Court found “that Ark. Stat. Ann. § 81-1313(f)(1) is in conflict with Act 290 [of 1981], and accordingly, is deemed repealed by Act 290 from the time of this decision.” We sought and received supplemental briefs from the parties pursuant to an order dated June 23, 1998, on whether theTimberline decision has rendered moot the interpretations of Ark. Stat. Ann. § 81-1313(f)(1) requested in the present case. [7] The Public Employee Claims Division asserts the Supreme Court’s Timberline decision delivered March 5, 1998, is not applicable to the present litigation on the ground that “substantive rights vested and positions were taken by parties, under existing law.” In addition, the Public Employee Claims Division asserts that, even if the repeal of Ark. Stat. Ann. § 81-1313(f)(1) as indicated by the Court in Timberline is applicable to the present case, that repeal does not resolve the issues in the present case. [8] With regard to the Public Employee Claims Division’s second assertion, we note that Respondent No. 1 has failed to cite any statutory authority in addition to Ark. Stat. Ann. § 81-1313(f), in support of its claim for a credit for its payment of $9,702.00 toward the statutory limit of $75,000.00 that must be paid by a respondent-carrier in cases of permanent disability. Consequently, we find that if the repeal of Ark. Stat. Ann. § 81-1313(f) applies to this case, Respondent No. 1’s assertion of a credit must clearly fail for lack of any other statutory authorization for the credit sought. [9] To the extent that the Public Employee Claims Division seems to assert in its brief on appeal that the “rights” between the parties in the present case vested under the law at the time the claimant sustained his injury, we note that Respondent No. 1 has not cited any authority for that proposition as it might apply under the circumstances of the present case. In addition, we do not interpret the Court’s intention in Timberline as indicating that the repeal of Ark. Stat. Ann. § 81-1313(f)(1) should apply only to injuries sustained after the date of the Timberline
decision, as Respondent No. 1 seems to assert. If that had been the intention of the Supreme Court, then the Court’s own decision in Timberline would not have applied to the litigants in that case since the claimant’s injuries in Timberline obviously occurred prior to the Supreme Court’s decision in the Timberline case. Consequently, we interpret the Court’s intention to be that the repeal of Ark. Stat. Ann. § 81-1313(f)(1) should apply to a claim for credit under Ark. Code Ann. § 81-1313(f)(1) pending before the Commission at the time that the Timberline decision was delivered. [10] Therefore, for the reasons discussed herein, we find that Respondent No. 1’s proposed credit at issue in this case is based solely on Ark. Code Ann. § 81-1313(f)(1). In addition, we find that the repeal of Ark. Code Ann. § 81-1313(f)(1) renders moot Respondent No. 1’s claim for a credit and, therefore, also renders moot the statutory interpretation issues raised by the parties. We, therefore, find that the administrative law judge’s finding that Respondent No. 1 is entitled to a credit must be, and hereby is, reversed. [11] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner MIKE WILSON, Commissioner