CLAIM NO. F112770
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 23, 2009
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOE D. BYARS, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by the HONORABLE JAMES C. BAKER, JR., Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE CHRISTY KING, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The Arkansas Court of Appeals has reversed and remanded to the Commission for further findings and conclusions. Death Permanent Total Disability Trust Fund v. Knauls, CA08-1329 (April 15, 2009). The Full
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Commission again finds that Respondent No. 2, the Death Permanent Total Disability Trust Fund, shall pay permanent and total disability benefits to the claimant for the period beginning October 25, 2002.
The parties stipulated that the claimant sustained a compensable injury to his back and both legs on November 1, 2001, and that the claimant’s healing period ended on October 25, 2002. Respondent No. 1 accepted and began paying the claimant benefits for a 75% anatomical impairment rating. The claimant eventually contended that he was permanently and totally disabled, and Respondent No. 1 accepted the claimant as being permanently and totally disabled on or about November 27, 2007. The parties stipulated that Respondent No. 2 accepted liability for permanent and total disability on December 18, 2007.
Ark. Code Ann. § 11-9-502(b) (Repl. 2002) provides:
(1) For injuries occurring on and after March 1, 1981, the first seventy-five thousand dollars ($75,000) of weekly benefits for death or permanent total disability shall be paid by the employer or its insurance carrier in the manner provided in this chapter.
(2) An employee or dependent of an employee who receives a total of seventy-five thousand dollars ($75,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this chapter, but all benefits in excess of seventy-five thousand dollars ($75,000) shall be payable from the Death and Permanent Total Disability Trust Fund.
See Death Permanent Total Disability Trust Fund v. Legacy Ins. Servs., 95 Ark. App. 189, 235 S.W.3d 544 (2006). In the present matter, the claimant’s healing period ended on October 25, 2002 and Respondent No. 1 accepted and paid a 75% anatomical impairment rating. For this rating, the
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claimant was entitled to $308.00 weekly for 337.5 weeks of permanent partial disability benefits. Respondent No. 1 and Respondent No. 2 agree that the claimant is permanently and totally disabled. Permanent total disability benefits are payable at a higher rate than permanent partial disability benefits. See Ark. Code Ann. § 11-9-501. Because the instant claimant was never able to return to work following his compensable injury, he was entitled to permanent total disability benefits, at the rate of $410 weekly, at the end of the healing period for his compensable injury. The claimant was underpaid at the rate of $102.00 weekly, leaving a total underpayment of $25,252.57. Respondent No. 1 was liable for the first $75,000 of permanent benefits. See Legacy, supra. Respondent No. 2, Death Permanent Total Disability Trust Fund, was responsible for payment of permanent total disability benefits due after Respondent No. 1 paid its total statutory amount. Ark. Code Ann. § 11-9-502(b)(1) explicitly provides that Respondent No. 2 shall pay all benefits in excess of $75,000. Commission Rule 28 does not shield Respondent No. 2 from its statutory responsibility.
Based on our de novo review of the entire record, and pursuant to the remand from the Court of Appeals, the Full Commission again reverses the administrative law judge’s finding that the claimant did not prove he was entitled to permanent total disability benefits in the sum of $25,252.57. The Full Commission finds that Respondent No. 2, the Death Permanent Total Disability Trust Fund, is liable for the underpayment of permanent total disability benefits in the amount of $25,252.57. We direct Respondent No. 2 to reimburse
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the claimant in the amount of $25,252.57. The claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(Repl. 2002).
IT IS SO ORDERED.
________________________________ A. WATSON BELL, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
________________________________ PHILIP A. HOOD, Commissioner
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