GREEN v. TYSON FOODS, INC., 1994 AWCC 139

CLAIM NO. E216868

FREDDIE GREEN, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 3, 1994

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

Claimant represented by KENNETH E. BUCKNER, Attorney at Law, Pine Bluff, Arkansas.

Respondent represented by EARL BUDDY CHADICK, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed and adopted; remanded.

[1] OPINION AND ORDER
[2] Respondent appeals an opinion of the Administrative Law Judge filed on January 31, 1994.

[3] The Administrative Law Judge entered the following findings of fact and conclusions of law:

1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.
2. On January 27, 1992, the relationship of employee-employer existed between the parties.
3. On January 27, 1992, the claimant earned wages sufficient to entitle her to weekly compensation benefits of $169.43.
4. On January 27, 1992, the claimant sustained an injury to her left knee arising out of and in the course of her employment.
5. On February 19 (sic), 1992, the claimant sustained an injury to her right knee, in the form of an aggravation of pre-existing condition,, arising out of and in the course of her employment.
6. The claimant was temporarily totally disabled for the periods beginning February 20, 1992, and continuing through September 9, 1992.
7. The claimant received unemployment benefits at a weekly rate of $131.00, subsequent to February 20, 1992.
8. The claimant’s healing period ended September 9, 1992, relative to her left knee injury of January 27, 1992.
9. The claimant has a permanent physical impairment in the amount of 6.25% to the left lower extremity.
10. The respondent shall pay all reasonable hospital and medical expenses arising out of the injury of January 27, 1992, and aggravation of February 20, 1992.
11. The respondent has controverted the payment of benefits relative to the claimant’s February 20, 1992 right knee complaint and the payment of temporary total disability benefits to the claimant subsequent to February 20, 1992.

[4] We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge’s decision is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that the findings of facts made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission.

[5] On appeal, respondent contends that the issue of claimant’s entitlement to temporary total disability should be remanded because claimant received unemployment insurance compensation during this period of time. Citing LeviStrauss Co. v. Laymance, 38 Ark. App. 55, 828 S.W.2d 356
(1992), respondent contends that “[t]he temporary total disability should have been offset against claimant’s unemployment benefits to allow temporary partial
disability.” (Original emphasis). We find that this matter should be remanded to the Administrative Law Judge for additional findings concerning this issue. Hopefully the parties can resolve any evidentiary questions without the need to conduct another hearing. However, the Administrative Law Judge may conduct any proceedings necessary to determine the extent of temporary total disability benefits to which claimant is entitled for the period of time between February 20 through September 9, 1992.

[6] Accordingly, we affirm and adopt the January 31, 1994 decision of the Administrative Law Judge, including all findings and conclusions therein, as the decision of the Full Commission appeal. Additionally, we remand this matter to the Administrative Law Judge for a determination as to the extent of temporary total disability benefits to which claimant is entitled for the period of time between February 20 through September 9, 1992. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.

[7] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[8] Commissioner Tatum concurs and dissents.

[9] CONCURRING AND DISSENTING OPINION
[10] I respectfully dissent from the majority’s opinion finding that claimant has proven by a preponderance of the credible evidence that she sustained an injury to her right knee on February 19, 1992 aggravating a pre-existing condition. Because of the majority’s opinion finding compensability, I concur that this claim must be remanded to the Administrative Law Judge for a determination as to the extent of temporary total disability benefits. Therefore, I dissent in part and concur in part with the majority’s opinion.

[11] A review of the evidence indicates that claimant is 5’4″ tall and weighs approximately 270 lbs. In the summer of 1990, she sustained a compensable right knee injury. Claimant underwent surgery and was released with a 15% impairment rating to the knee. In November of 1990, claimant’s treating physician stressed the need for claimant to lose weight. He advised that claimant lose at least 100 lbs. stating that her right knee would not get any better until she loses some weight. Claimant returned to the physician in March of 1991 for a follow-up visit. As of this visit, claimant had gained weight. Again, claimant’s doctor emphasized the need for claimant to lose weight in order for her right knee to improve. Claimant was seen in April of 1991. Again, the physician noted that claimant had gained weight. Claimant sustained a compensable left knee injury on January 27, 1992. The claim was accepted as compensable and claimant received treatment. On February 20, 1992, claimant voluntarily agreed to be laid off. Claimant maintains that she sustained a compensable aggravation of her right knee condition one day prior to her layoff, February 19, 1992. However, based upon a de novo
review of the evidence, claimant failed to prove by a preponderance of the evidence that she sustained an injury or aggravation on that date. Respondent, who is notoriously meticulous as to reporting injuries, does not have any record of an injury. Furthermore, the medical records show that claimant’s continuing knee problems are because she is morbidly obese. Therefore, in my opinion, claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable aggravation to her pre-existing condition in February of 1992. Therefore, I respectfully dissent from the majority’s opinion as to this issue. Because the majority found claimant sustained a compensable aggravation, I concur with the majority that this matter must be remanded to the Administrative Law Judge to determine what, if any, temporary total disability benefits are owed. Keep in mind that as of February of 20, 1992, claimant applied for and began receiving unemployment benefits. Claimant was continuing to receive unemployment benefits as of the day of the hearing.

[12] I dissent in part and concur in part with the majority’s opinion.

[13] ALLYN C. TATUM, Commissioner