HENSON v. GENERAL ELECTRIC, 2006 AWCC 157

CLAIM NO. F106883

JAMES R. HENSON, EMPLOYEE CLAIMANT v. GENERAL ELECTRIC, EMPLOYER RESPONDENT SEDGWICK CMSI, TPA RESPONDENT NO. 1 SECOND INJURY FUND RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
ORDER FILED SEPTEMBER 29, 2006

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

Claimant represented by Honorable Phillip Wells, Attorney at Law, Jonesboro, Arkansas.

Respondent No. 1 represented by Honorable Mark Mayfield, Attorney at Law, Jonesboro, Arkansas.

Respondent No. 2 represented by Honorable David Pake, Attorney at Law, Little Rock, Arkansas.

ORDER
This matter is before the Full Workers’ Compensation Commission on the Respondent No. 2’s Motion For Reconsideration. Respondent No. 2, the Second Injury Trust Fund (the Fund), requests that the Commission reconsider the finding it made in the above referenced case on August 31, 2006. Specifically, the Fund requests that the finding that Respondent No. 1 is entitled to be reimbursed $37,136.00 by Respondent No. 2 for Respondent No. 1’s overpayment to the claimant be reversed. After considering Respondent No. 2’s motion, Respondent No. 1’s response thereto, as well as the claimant’s response thereto, we find that the motion for reconsideration should be granted and that finding should be modified.

In an opinion dated August 31, 2006, the Full Commission made a finding that required Respondent No. 2 to reimburse Respondent No. 1 in the amount of $37,126.00 for the overpayment of benefits. The claimant was awarded a 35% loss in wage earning capacity in addition to his permanent anatomical impairment. The claimant’s weekly compensation rate is $308.00. A 35% loss in wage earning capacity equals 157.5 weeks of benefits. Therefore, the Second Injury Fund is responsible for $48,510.00 ($308.00 x 157.5) in benefits to the claimant. The Full Commission further found in our Order of August 31, 2006, that the Fund was entitled to a credit pursuant to Ark. Code Ann. § 11-9-411, in the amount of $1026.00 per month, which computes to a credit of $12,312.00 per year. With a compensation rate of $308.00 per week, the claimant is therefore entitled to $16,016.00 per year. The Fund is only responsible for the difference between the two, or $3,704.00 per year. When $3,704.00 is multiplied by 3.03 years (157.5 weeks) the total is $11,223.12. Accordingly, pursuant to our award, the Fund is only required to pay a total of $11,223.12 in benefits. If the Fund is required to pay the claimant $11,223.12, as well as reimburse Respondent No. 1 in the amount of $37,136.00, the Fund becomes responsible for paying $48,349.12. The claimant’s total wage loss award prior to applying the § 411 credit equates to $48,510.00 (157.5 weeks x $308.00). Respondent No. 1 overpaid temporary total disability benefits in the amount of $37,136.00, which has been applied to the claimant’s wage loss. The Fund has already paid the claimant $22,308.00. Accordingly, the claimant already has received $59,444.00 in wage loss benefits when he is only entitled to $48,510.00 before the § 411 credit is applied.

Respondent No. 1 argues that the Fund should be required to reimburse them, but only to the extent of any payments it made or were owed by the Fund. Therefore, Respondent No. 1 is just requesting that reimbursement of $11,223.12. The Fund states that since they have already paid the claimant $22,308.00 they should not be responsible for any more monies to be paid to Respondent No. 1.

Requiring reimbursement would be tantamount to the Fund paying twice. They have already paid the claimant $22,308.00 in benefits, well in excess of the $11,223.12 it is obligated to pay. The claimant has already received a windfall from both the Fund and Respondent No. 1. Respondent No. 1 could have requested a credit pursuant to Ark. Code Ann. § 11-9-411, but failed to do so.

Our original finding with respect to Respondent No. 1’s entitlement to reimbursement is correct. In addition, our original finding that Respondent No. 2 is entitled to a credit for benefits claimant received pursuant to § 411 is also correct. Due to the circumstances of Respondent No. 1’s oversight in overpayment and failure to claim the § 411 credit on their own behalf, the facts in this claim dictate Respondent No. 2 should not be required to reimburse Respondent No. 1 beyond their own liability in this claim. The claimant has already received more money than he is entitled and a true correction would actually require the claimant to reimburse the respondents, which is against longstanding public policy.

After considering Respondent No. 2’s motion, the response of Respondent No. 1, as well as the response of the claimant, we find that our original opinion should be modified. Respondent No. 1 is entitled to remibursement, however, Respondent No. 2 is not required to pay this reimbursement beyond the extent of its actual liability to the cliamant.

IT IS SO ORDERED.

___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner

Commissioner Turners concurs.

CONCURRING OPINION SHELBY W. TURNER, Commissioner

I respectfully concur with the majority’s finding that Respondent No. 2’s motion should be granted. I further concur with the majority finding that Respondent No. 2 should not be required to reimburse Respondent No. 1 beyond their own liability in this claim. I also concur that it would be against longstanding public policy to require the claimant to reimburse the respondents. I reassert the position set forth in my concurring and dissenting opinion of our August 31, 2006 decision, with regards to the § 11-9-411 credit and the claimant’s level of permanent impairment.

___________________________________ SHELBY W. TURNER, Commissioner