Advanced Portable X-Ray, LLC v. Parker

Cite as 2014 Ark. App. 548

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-350

Opinion Delivered October 8, 2014

ADVANCED PORTABLE X-RAY, LLC APPEAL FROM THE ARKANSAS
APPELLANT WORKERS’ COMPENSATION
COMMISSION [NO. G201074]
V.

CONNIE PARKER REVERSED AND REMANDED FOR
APPELLEE FURTHER PROCEEDINGS

KENNETH S. HIXSON, Judge

This is the second appeal in this workers’ compensation case. In the first appeal, we

remanded for the Commission to provide additional findings and conclusions on whether the

employer was entitled to a statutory credit provided in Arkansas Code Annotated section 11-

9-807(b) (Repl. 2012), and if so, the extent of the credit. See Parker v. Advanced Portable X-

Ray, LLC, 2014 Ark. App. 11, 431 S.W.3d 374. Following our remand, the Commission

found that the employer, appellant Advanced Portable X-Ray, LLC (“APX”) was not entitled

to this credit. APX appeals. We reverse because the Commission erred in its application of

section 11-9-807(b).

The chronology of events in these proceedings are set out in detail in our first opinion,

so we will not restate them. We will, however, provide an abbreviated explanation. Appellee

Connie Parker worked for APX, a mobile x-ray company, and in September 2011, Parker
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sustained work-related injuries. APX continued to pay Parker her regular wages while she

was healing, through January 15, 2012. APX terminated her from employment as of January

26, 2012, prior to her expected medical release.

On January 30, 2012, Parker sent a letter to the Equal Employment Opportunity

Commission (“EEOC”) followed by a formal discrimination charge in March 2012. She

accused APX of violating the Americans with Disabilities Act (“ADA”) when it fired her

while she was disabled from working. In April 2012, Parker and APX settled the EEOC

charge following a confidential mediation session wherein APX agreed to pay Parker “lost

wages” of $60,000, less applicable taxes (tendering a $47,485 check), in exchange for Parker

“resigning” and not instituting a lawsuit under the ADA. The settlement check referenced

a one-day “pay period” of April 27, 2012, and it recited that this was “regular pay” for

“earnings and hours” with a “net pay” of $47,485.

Parker’s workers’ compensation claim proceeded. APX contested her claim, arguing

in part that it was entitled to a statutory credit pursuant to Arkansas Code Annotated section

11-9-807(a) or section 11-9-807(b). The statute provides:

Credit for compensation or wages paid.

(a) If the employer has made advance payments for compensation, the employer shall
be entitled to be reimbursed out of any unpaid installment or installments of
compensation due.
(b) If the injured employee receives full wages during disability, he or she shall not be
entitled to compensation during the period.

After a hearing conducted in August 2012, the administrative law judge issued his opinion in

September 2012. In the administrative law judge’s opinion, he awarded Parker temporary

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total disability (“TTD”) benefits from January 16, 2012 to a date yet to be determined and

denied APX a credit under subsection (a).1 The Commission, in its de novo review, affirmed

the TTD award but reversed the ALJ on the statutory-credit issue. The Commission awarded

APX the credit pursuant to subsection (b), finding that the “lost wages” referenced in

the settlement were “lump sum wages” for purposes of subsection (b). The Commission

specifically noted that APX was not seeking a statutory credit pursuant to subsection (a) before

the Commission. Both parties appealed the Commission’s April 2013 decision to our court.

In the first appeal, we stated that the Commission’s opinion “provides no explanation of how

Parker’s EEOC mediation settlement proceeds described therein as ‘lost wages’ equates to ‘full

wages’ under section 11-9-807(b).” Id. at page 5. Consequently, we remanded to the

Commission “to make findings and conclusions with sufficient detail and particularity on the

applicability of Arkansas Code Annotated section 11-9-807(b) and the amount of the credit,

if any, available to APX under the facts of this case.” Id. at page 6.

On remand, the Commission made a finding that the “lost wages” paid in the EEOC

settlement were “full wages” as contemplated in subsection (b). It recited that “wages” are

defined in the Workers’ Compensation Act as “the money rate at which the service rendered

is recompensed under the contract of hiring in force at the time of the accident,” referencing

Arkansas Code Annotated section 11-9-102(19). The Commission further found that the

settlement proceeds were not “advance payments for compensation” as contemplated by

subsection (a), although that was not at issue, given that APX was no longer seeking a credit

1
The ALJ did not address subsection (b).

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under subsection (a) and our remand was limited to subsection (b). The Commission

concluded that even though the settlement monies were “full wages,” a statutory credit would

be denied after the Commission strictly applied what it perceived to be the controlling

appellate authority.2 APX appeals, and we reverse because the Commission erred.

We review the evidence in a Workers’ Compensation appeal in the light most

favorable to the decision of the Commission and affirm if it is supported by substantial

evidence. Tucker v. Bank of Amer., 2013 Ark. App. 585. Substantial evidence is evidence that

a reasonable mind might accept as adequate to support a conclusion. Id. On review, the issue

is not whether we might have reached a different result or whether the evidence would have

supported a contrary finding; if reasonable minds could reach the Commission’s conclusion,

we must affirm its decision. Id.

The Commission clarified and concluded that the EEOC settlement proceeds were

“full wages” for purposes of subsection (b). We do not disturb this finding of fact. APX does

not argue that the Commission’s finding of fact—that the settlement monies were “full

wages”—is in error. Parker did not cross appeal any findings of fact or law. In sum, there is

no dispute between the parties that the money received by Parker from the EEOC settlement

was “full wages.”

2
The sole dissenting Commissioner stated that the appellate case law applicable to
subsection (a) was inapplicable to subsection (b); that APX was not asserting or relying on
subsection (a) as a basis to receive a credit; and that our court’s remand was limited to findings
and conclusions on the applicability of subsection (b), not (a).

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What APX argues, in a compelling fashion, is that the Commission erred in its

application of the law to the facts it found. We are required to strictly construe workers’

compensation statutes, meaning that we are to narrowly construe the statute, nothing to be

taken as intended unless clearly expressed. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark.

App. 673. The correct interpretation and application of an Arkansas statute is a question of

law, which we decide de novo on appeal. See Stewart v. Arkansas Glass Container, 2010 Ark.

198, 366 S.W.3d 358. While an agency’s interpretation of applicable statutes is highly

persuasive, it is not binding on appellate courts and will be overturned if clearly wrong.

Brigman v. City of West Memphis, 2013 Ark. App. 66, __ S.W.3d __; Arkansas Electric Energy

Consumers, Inc. v. Arkansas Public Service Comm’n, 2012 Ark. App. 264, 410 S.W.3d 47.

Arkansas Code Annotated section 11-9-807(b) provides that if the injured employee

receives “full wages during disability,” then she (Parker) is not entitled to “compensation

during the period.” As stated, we accept the Commission’s finding of fact that the settlement

proceeds were “full wages” for purposes of subsection (b). After APX terminated her

employment, Parker remained in her healing period and was entitled to TTD—a form of

compensation for disability—from and after January 16, 2012 to a date to be determined. Her

entitlement to TTD, and the date on which it started, has already been established by the

Commission.

Arkansas Code Annotated section 11-9-102(5) defines “compensation” to include “the

money allowance payable to the employee.” In this context, Parker’s entitlement to TTD

“obviously refers to money benefits paid to the injured employee for disability.” Brooks v.

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Arkansas-Best Freight System, Inc., 247 Ark. 61, 64, 444 S.W.2d 246, 248 (1969). Arkansas

Code Annotated section 11-9-102(8) defines “disability” as the inability to earn wages due

to a compensable injury, i.e. TTD. The parties stipulated to Parker’s TTD weekly rate at the

maximum of $575. The ALJ determined that Parker’s average weekly wage was $1,350.83,

another finding not on appeal and now law of the case.

Applying these undisputed facts to the plain language of section 11-9-807(b), we hold

that it disqualifies Parker from receiving TTD benefits during the period that she received

“full wages.” To hold otherwise would nullify section 11-9-807(b), and we cannot construe

Arkansas statutory law in such a way as to render it meaningless. Shipley, Inc. v. Long, 359

Ark. 208, 195 S.W.3d 911 (2004).

It appears that there is some confusion regarding the scope of the relief available to the

employer under subsection (b). While the title of the statute is “Credit for compensation or

wages paid,” the language in the body of the statute does not mention the word “credit” and

does not describe how the credit is applied, if one is available. Hence, any understanding of

the credit available must be gleaned from existing case law.

There are four potential interpretations of the relief available to the employer under

subsection (b). Assuming the employee receives “full wages” during her disability, then the

employer could potentially be entitled to a credit for (1) the amount of the TTD rate that the

employee would have received; (2) the amount received by the employee in excess of the

TTD rate; (3) the amount of the TTD rate plus the amount received in excess of the TTD

rate; or (4) nothing.

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The Commission expressed inconsistent conclusions regarding the credit potentially

available to APX. At least three times in the majority opinion, the Commission recited that

the employer was not entitled to any credit at all. At the conclusion of the opinion, however,

the Commission stated: “The respondent-employer cannot deduct the excess of wages paid

over the weekly compensation award.” These two inconsistent statements must be reconciled

in this appeal. The statute itself does not provide guidance, so we must look to the appellate

case law interpreting this statute.

In support of its decision to deny any credit, the Commission relied primarily on three

cases: Emerson Electric v. Cargile, 5 Ark. App. 123, 633 S.W.2d 389 (1982); Southwestern Bell

v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966); and Looney v. Sears, 236 Ark. 868, 371

S.W.2d 6 (1963). Upon closer examination, we hold that these cases do not support denial

of the credit for payments made commensurate with the claimant’s TTD rate.

We begin with a review of Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S.W.2d 450 (1952).

In Lion Oil, Mr. Reeves was injured, and the employer continued to pay his full wages, which

were in excess of his maximum allowable TTD rate.3 In a subsequent workers’ compensation

claim, the employer requested credit for the excess wages it paid over the TTD rate. The

employer did not request a credit for payments made commensurate with the TTD rate. The

Commission allowed the credit, and on appeal to the Arkansas Supreme Court, it affirmed

the allowance of a credit for the amount paid in excess of the TTD rate. However, the

3
The term “TTD rate” was not used during that time frame, and instead it was
typically called the “weekly compensation rate.” For purposes of simplification and clarity,
we will use the more familiar phrase “TTD rate.”

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holding in Lion Oil was limited to its own facts in a supreme court case handed down eleven

years later, Looney v. Sears, supra.

In Looney, Ms. Looney was employed by Sears, and she sustained a compensable injury.

The Sears manager testified that they paid Ms. Looney full wages initially because, “Under

company policy we normally, when someone is injured, pay them full salary for a period to

see how they get along, in excess of the statutory requirements as we would in an illness

case.” Looney, 236 Ark. at 871. After it became apparent that she would be off for a

significant period of time due to the workplace injury, Sears reduced Looney’s payments to

the weekly TTD rate. As a result of initially paying “full wages” for several weeks during her

disability, Sears alleged that it overpaid Ms. Looney a cumulative amount of $601.73 during

this period.4 Sears requested that the TTD award be reduced by the excess overpayments and

requested a credit pursuant to Arkansas Statutes Annotated section 81-1319(m) (Repl.1960).5

The Commission agreed with Sears and granted Sears a credit for the $601.73 in excess wages

in reliance upon Lion Oil. It is of significant importance that Sears did not request credit for

the “wages” paid in an amount commensurate with the TTD rate. The Looney court

explained: “During said absence, Sears paid her full wages, which amounted to $601.73 more

4
There were actually two periods of overpayment totaling $1,291.95.
5
Credit for compensation or wages paid.
“If the employer has made advance payments of compensation he shall be entitled to
be reimbursed out of any unpaid instalment or instalments of compensation due. If the
injured employee receives full wages during disability he shall not be entitled to
compensation during such period.” This is the same language as in our current statute;
the present version divided the statute into two subsections—(a) and (b).

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than her workmen’s compensation payments would have been. This excess of $601.73 is here

involved.” Looney, 236 Ark. at 870. In reversing the credit given to Sears for the excess, the

Looney court recognized and specifically limited Lion Oil stating that “for future guidance in

such cases, we think it wise to now limit the holding of Lion Oil Company v. Reeves to its own

particular facts.” Looney, 236 Ark. at 871. Pursuant to Looney, the employer is not entitled

to a credit for wages paid in excess of the TTD rate:

When an employer continues to pay salary or wages to an injured employee during
any time of injury, and such payments are in excess of workmen’s compensation
benefits, then when a workmen’s compensation award is subsequently made, the excess
of the wages paid over the weekly compensation award cannot be deducted from the
award.

Looney, 236 Ark. at 872. This holding has not been disturbed by subsequent appellate court

case law.

The Commission also cited Southwestern Bell v. Siegler, supra, as authority for its denial

of the subsection (b) credit. A closer review of Southwestern Bell reveals that it does not

support the finding of the Commission. Southwestern Bell provided its employees with a

private benefit plan called the “Plan for Employees’ Pensions, Disability Benefits, and Death

Benefits.” Siegler was injured on the job and made a claim under the benefit plan and

received weekly benefits. Siegler subsequently filed a workers’ compensation claim seeking

benefits for a ten-percent permanent-partial disability. Southwestern Bell controverted the

claim and requested a credit for payments received by Siegler from the benefit plan pursuant

to Arkansas Statutes Annotated section 81-1319(m) (Repl. 1960).6 Southwestern Bell sought

6
See Footnote 5.

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the credit only as “advanced payments of compensation” pursuant to what is now subsection

(a), not as “full wages” received during disability pursuant to what is now subsection (b). Our

supreme court held that the weekly benefits received from the employer’s benefit plan were

not advanced payments of compensation for Siegler’s disability and that Southwestern Bell was

not entitled to a credit pursuant to what is now subsection (a).

The next chronological case cited by the Commission was Emerson Electric v. Cargile,

supra. Emerson Electric, like many employers, sponsored an elective group disability plan for

its employees. The employees could elect the disability plan and if elected, the employees

paid the premiums. Cargile sustained an on-the-job injury and filed a workers’ compensation

claim against Emerson Electric, which Emerson controverted. Cargile also filed a claim with

his group disability policy, which paid Cargile weekly disability benefits. Eventually, Cargile

won his workers’ compensation claim against Emerson, and Emerson requested a credit under

Arkansas Statutes Annotated section 81-1319(m)7 as an “advanced payment of compensation”

and not as “full wages during disability.” The Commission denied the credit, and on appeal,

our supreme court held: “Under this section if Emerson made advance payments of

compensation to the appellee then credit should have been allowed.” Emerson, 5 Ark. App.

at 125. The supreme court concluded by holding that “private insurance procured by the

employee does not come within that provision of our statute.” Emerson, 5 Ark. App. at 127.

Each of the cases cited by the Commission in support of its opinion are distinguishable

from the present appeal. In both Lion Oil and Looney, supra, our supreme court was called to

7
See footnote 5.

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interpret what is now codified at subsection (b), and as held in Looney, it interpreted the

statute to mean that excess wages over the TTD rate are not to be credited to the employer.

Those cases do not stand for the proposition that when an employer pays an employee “full

wages” during a period of disability, the employee is entitled to both full wages and TTD.

To construe the statute in that manner would effectively void subsection (b).

To clarify, when an employer pays an employee “full wages” during a period of

disability and the employee is subsequently awarded TTD benefits for that period, the

employer is entitled to a credit under subsection (b) for the amounts paid to the employee that

are commensurate with the employee’s TTD rate; the employer is not, however, entitled to

a credit for amounts paid in excess of the TTD rate.

We note that in the context of disability retirement benefits, pursuant to Arkansas

Code Annotated section 11-9-411, the Second Injury Fund may offset dollar-for-dollar any

amounts paid to a claimant in order to prevent a claimant from receiving a double recovery.

See Second Injury Fund v. Osborn, 2011 Ark. 232; Mills v. Ark. State Hwy. & Transp. Dep’t,

2012 Ark. App. 395; Henson v. General Electric, 99 Ark. App. 129, 257 S.W.3d 908 (2007).

The Workers’ Compensation Act also provides in Arkansas Code Annotated section 11-9-410

that an insurer or an employer may pursue an action in tort against a third-party tort-feasor

to ensure that the claimant is not doubly compensated to the detriment of the employer and

insurer. See Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997).

To allow an employee to receive “full wages” and weekly TTD benefits would similarly be

allowing double recovery to the claimant.

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We hold that appellant APX requested a credit that is sanctioned by subsection (b) for

the amount commensurate with Parker’s TTD rate, and the Commission clearly erred in not

allowing the credit. We reverse and remand for the Commission to ascertain the period of

disability that the settlement proceeds—deemed “full wages”—represented and to determine

the precise credit available to APX.

Reversed and remanded for further proceedings.

PITTMAN and WALMSLEY, JJ., agree.

Bassett Law Firm LLP, by: Dale W. Brown and Grace K. Johnson, for appellant.

Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellee.

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