CLAIM NO. E507957
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 25, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GERALD LEE, Attorney at Law, Springdale, Arkansas.
Respondent represented by TIMOTHY BROOKS, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed January 30, 1997, finding that claimant sustained a compensable injury on January 10, 1995, and is entitled to temporary total disability benefits from February 8, 1995 through April 6, 1995, and finding that respondent is not entitled to an offset pursuant to Ark. Code Ann. § 11-9-411. Based upon our denovo review of the entire record, we find that the claimant has proven the compensability of her claim and is entitled to temporary total disability benefits from February 8, 1995 through April 6, 1995. Therefore, we affirm these findings of the Administrative Law Judge. We further find that respondent has proven entitlement to a dollar for dollar set-off for benefits paid by claimant’s disability insurance carrier. In our opinion, the evidence clearly establishes that claimant received benefits from his group disability carrier for which respondent is entitled to a credit. Therefore, we reverse this finding of the Administrative Law Judge.
(1) “Compensable injury” means: An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.
Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996).
[7] If claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury he fails to establish the compensability of the claim, and compensation must be denied. [8] After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we find that claimant has proven the compensability of his claim. Claimant described a very specific incident and the medical records establish that claimant sustained an internal physical injury or harm to his body as a result of the incident which has resulted in medical services and resulting in disability. There is a close temporal relationship between the incident, diagnosis, and need for treatment. Moreover, claimant’s treating physicians have all opined that the fall on January 10, 1995, is the cause of claimant’s venous blockage and deep vein thrombosis. [9] Since we find that claimant sustained a compensable injury, we further find that claimant has proven entitlement to temporary total disability benefits and medical benefits associated therewith. The record reflects that claimant was hospitalized on February 8, 1995, and that he remained off work until April 6, 1995, due to the medication he was taking. Accordingly, we find that claimant remained both within his healing period and totally incapacitated from earning wages during this time period. [10] Therefore, we affirm the decision of the Administrative Law Judge finding that claimant sustained a compensable injury on January 10, 1995, and is entitled to medical benefits and temporary total disability from February 8, 1995 through April 6, 1995. [11] However, we reverse the decision of the Administrative Law Judge denying respondent an off-set for the amount paid to claimant by his group disability insurance policy. Ark. Code Ann. § 11-9-411 provides that the Workers’ Compensation carrier is entitled to an off-set, reducing the amount of benefits on a dollar for dollar credit by the amount already paid to the claimant under a group disability policy. We simply cannot agree with the Administrative Law Judge’s comments that there was insufficient evidence in the record to rule on the off-set issue. Claimant unequivocally testified that he had a group disabilityinsurance policy through Colonial Insurance Company. Merely because claimant contributed to the premiums out of his wages does not mean that the insurance was not a group policy. Moreover, despite the Administrative Law Judge’s comment that she could not determine from the record whether the policy was a disability policy or a group loss of income policy, we find that the record is clear that claimant had a group disability policy from which he was receiving benefits. Claimant not only agreed under cross examination that he had a disability policy, he even specifically testified that the policy through Colonial Insurance Company was a disability policy. Thus, it is clear that claimant possessed a group disability policy through his employer which paid him benefits while he was not working. [12] Furthermore, we cannot agree with the Administrative Law Judge’s comment that she is unable to determine the amount of benefits claimant received. Claimant’s testimony clearly indicates that he received the equivalent of $250.00 per week in disability benefits through Colonial Insurance Company for the time period of February 8, 1995 through April 6, 1995. Although claimant testified the money did not come in a timely fashion like it was supposed to, he did testify that he got all of the money in a lump sum for the period set forth above. It is not necessary for the evidence to show a specific dollar amount when that dollar amount can be determined from the evidence submitted at the hearing. Obviously, it can be determined from the evidence at the hearing the total dollar amount of benefits received by claimant when one calculates $250.00 per week for the time period of February 8, 1995 through April 6, 1995. This amounts to eight weeks and two days of benefits totaling $2,000.00. Accordingly, we find that respondent has submitted sufficient evidence entitling respondent to an off-set for the disability benefits claimant received totaling $2,000.00. [13] Therefore, for those reasons set forth herein, we affirm the decision of the Administrative Law Judge in part and reverse in part. [14] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [15] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 to be paid one-half by claimant and one-half by respondent. Ark. Code Ann. § 11-9-715(a)(2)(B) and §11-9-715(b)(2). [16] IT IS SO ORDERED.(2) A compensable injury must be established by medical evidence, supported by “objective findings” as defined in § 11-9-102(16). Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 1996).
(3) For injuries falling within the definition of compensable injury under subdivision (5)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(5)(E)(i) (Repl. 1996).
ELDON F. COFFMAN, Chairman
[17] Commissioner Humphrey concurs in part and dissents in part.[18] CONCURRING AND DISSENTING OPINION
[19] While I concur with the principal opinion to the extent it finds that claimant sustained a compensable injury on January 10, 1995, and is entitled to an award of temporary total disability benefits from February 8, 1995, through April 6, 1995, I must respectfully dissent from the finding that respondents are entitled to a dollar-for-dollar offset under Ark. Code Ann. § 11-9-411 (Repl. 1996).
[24] CONCURRING AND DISSENTING OPINION
[25] Although I would not find claimant to be a credible witness who has proven the compensability of his claim, I concur with the principal opinion that since the claim has been found compensable, respondent has proven entitlement to an offset pursuant to Ark. Code Ann. § 11-9-411.