ZAMORANO v. CENTRAL ROOFING CO., 2002 AWCC 203


CLAIM NO. F100257

JOHN ZAMORANO, EMPLOYEE, CLAIMANT v. CENTRAL ROOFING CO., UNINSURED EMPLOYER, RESPONDENT NO. 1 RECTOR-PHILLIPS-MORSE MANAGEMENT COMPANY, INC., EMPLOYER, RESPONDENT NO. 2 TRANSCONTINENTAL INS. CO., INSURANCE CARRIER, RESPONDENT NO. 2 ARKANSAS DEPT. OF HUMAN SERVICES, DIVISION OF MEDICAL SERVICES, INTERVENOR

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 30, 2002

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

Claimant represented by HONORABLE J. GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondent No. 1 represented by JAN KOON, Atkins, Arkansas.

Respondent No. 2 represented by HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Intervenor represented by HONORABLE RICHARD B. DAHLGREN, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Vacated and remanded.

OPINION AND ORDER
The claimant appeals an Administrative Law Judge’s opinion filed May 23, 2002. The Administrative Law Judge found that the claimant was entitled to a period of temporary total disability compensation based on a finding that the claimant “remained in a healing period and was totally incapacitated to earn wages.”

The Administrative Law Judge erred as a matter of law. The claimant sustained a scheduled injury. An employee with a scheduled injury is entitled to temporary total disability compensation during the time that he remains within his healing period and has not returned to work Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822
(2001). The Administrative Law Judge based his decision in part on a finding that the claimant was “totally incapacitated to earn wages” for a period. However, incapacity to earn wages is presumed with a scheduled injury. Minnesota Mining Manufacturing v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The claimant also argues on appeal that he was unable to perform remunerative labor on a consistent basis. See, Farmers Cooperative v. Biles, 77 Ark. App. ___, ___ S.W.3d ___ (2002).

Therefore, the Full Commission vacates the opinion of the Administrative Law Judge, and we remand for additional findings. We direct the Administrative Law Judge to adjudicate the claimant’s entitlement to temporary total disability compensation based on Wheeler Construction Co. v. Armstrong, supra

For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
______________________________ JOE E. YATES, Commissioner