TRIMBLE v. TRANSERVICE CORPORATION, 1997 AWCC 241

CLAIM NO. E107197

CURTIS TRIMBLE, EMPLOYEE, CLAIMANT v. TRANSERVICE CORPORATION, EMPLOYER, RESPONDENT NO. 1 and ZURICH INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 1 and DEATH PERMANENT TOTAL DISABILITY TRUST FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 3, 1997

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

Claimant represented by the HONORABLE GEORGE “TEX” QUESADA, Attorney at Law, Dallas, Texas and the HONORABLE JOHN T. HOLLEMAN, Attorney at Law, Bryant, Arkansas.

Respondents No. 1 represented by the HONORABLE PHILLIP D. COOK, JR., Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] Respondent No. 1 appeals an opinion and order filed by the administrative law judge on January 3, 1996. In that opinion and order, the administrative law judge found that the healing period for the claimant’s compensable injury ended on October 31, 1991. In addition, the administrative law judge found that respondent No. 1 is not entitled to receive a credit against future benefits for any amount of payments which exceed $104.00 per week.

[3] After conducting a de novo review of the entire record, we find that the claimant’s healing period ended on October 31, 1991. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. We also find that Respondent No. 1 is entitled to a credit against future benefits for any temporary total disability payments or permanent total disability payments exceeding $104.00 per week. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [4] This case was submitted to the administrative law judge on stipulations and attachments without an administrative hearing. The stipulations and attachments originally appended to the administrative law judge’s opinion and order filed on January 3, 1996, were subsequently detached and returned to the file. We therefore designate as a part of the record on appeal to the Full Commission those records in the file labelled “WCC #1.” [5] Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highwayand Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [6] The claimant sustained admittedly compensable injuries on May 1, 1991, which have rendered the claimant totally disabled since that date. As a result of those injuries, the claimant remained hospitalized until October 30, 1991, when he was released from inpatient care. [7] Respondent No. 1 asserts that the claimant’s healing period ended on September 30, 1991, one month prior to the end of his period of hospitalization. In this regard, Dr. Milami, the claimant’s treating physician indicated in correspondence date June 4, 1992, that the claimant’s medical condition stabilized on September 30, 1991. However, Dr. Milami did not provide any explanation in his correspondence as to why he might have determined that the claimant’s medical condition was as far restored as the permanent nature of his injury would permit prior to his hospital discharge as an inpatient on October 30, 1991. Consequently, after considering the opinion of Dr. Milami, the date of the claimant’s hospital discharge for hospital inpatient care, and all other evidence properly in the record before the Commission, we find that the greater weight of the evidence establishes that the claimant’s healing period ended on October 30, 1991. Consequently, we find that the preponderance of the evidence establishes that Respondent No. 1’s liability for temporary total disability compensation ended on October 30, 1991, and not on September 30, 1991, as Respondent No. 1 contends. [8] We also find that Respondent No. 1 is entitled to a credit against future benefits for indemnity compensation paid in excess of a stipulated total disability compensation rate of $104.00 per week. See generally, William Hunt v.Bill Lovett, Full Workers’ Compensation Commission, Sept. 16, 1996, (Claim No. E218307); Tomasa Rogers v. AyersChairmakers, Full Workers’ Compensation Commission, Sept. 16, 1992, (Claim No. D902725). [9] In reaching our decision, we note that the administrative law judge reasoned that requiring Respondent No. 1 to absorb the loss from any overpayment “will provide insurance carriers with sufficient incentive to monitor their case more closely to insure that [overpayments] will not be repeated.” We acknowledge that the administrative law judge has identified a valid policy consideration. However, as explained in Rogers, supra, other more imperative policy considerations clearly weigh in favor of providing a credit for overpayments of Workers’ Compensation indemnity benefits. As explained in Rogers:

If we were to allow claimant to receive a windfall in this case, we would be discouraging employers from accepting claims as compensable with the understanding that if the claim is eventually found not to be compensable, they will be entitled to an offset for other compensation benefits. To allow a claimant to receive a windfall sends a message to employers that they have nothing to gain by accepting a claim as compensable if they are not going to be entitled to a credit if the claim is eventually found not compensable. Here, the respondent was acting in good faith and claimant should not now receive a windfall as a result of the respondents’ good faith. To do so will hurt future claimants who would not receive benefits if a respondent fears it will not be entitled to a credit for other benefits.

[10] We have previously found that the rationale for a credit against future benefits also applies in cases where the overpayment occurs as a result of payments being made at an excessive compensation rate, as in this case. See, Hunt,supra. [11] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant’s healing period ended on October 31, 1991. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, affirmed. We also find that Respondent No. 1 is entitled to a credit against future benefits for any temporary total disability payments or permanent total disability payments exceeding $104.00 per week. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is, reversed. [12] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman

[13] Commissioner Wilson concurs.

[14] CONCURRING OPINION
[15] I concur with the majority opinion finding that claimant’s healing period ended on October 31, 1991 and finding that respondent No. 1 is entitled to a credit against future benefits for any temporary total disability payment or permanent total disability payments paid in excess of the stipulated total disability compensation rate of $104.00 per week. I write this concurring opinion, however, to reiterate the fact that respondent initially miscalculated claimant’s disability rate by including the $104.00 per week per diem in claimant’s average weekly wage. The evidence revealed that the per diem was a reimbursement of the claimant’s actual out-of-pocket expenses and was not part of claimant’s actual wages.

[16] MIKE WILSON, Commissioner [17] Commissioner Humphrey concurs in part and dissents in part.

[18] CONCURRING AND DISSENTING OPINION
[19] I concur with the finding in the principal opinion that claimant’s healing period ended on October 31, 1991. However, I cannot in good conscience agree that under the specific circumstances of this case, respondent is entitled to a credit. Respondent acknowledges that “in order to prevent the claimant’s [sic] from having a period of time in which he would receive no workers’ compensation benefits, an adjustment to the payment plan should be made.” I can only hope the parties will work out some agreement in this regard.

[20] PAT WEST HUMPHREY, Commissioner