{ "id": 6137549, "name": "J.T. GUFFEY v. ARKANSAS SECRETARY OF STATE and ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEES CLAIMS DIVISION", "name_abbreviation": "Guffey v. Arkansas Secretary of State", "decision_date": "1986-06-04", "docket_number": "CA 86-5", "first_page": "54", "last_page": "64", "citations": [ { "type": "official", "cite": "18 Ark. App. 54" }, { "type": "parallel", "cite": "710 S.W.2d 836" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "272 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174871 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0244-01" ] }, { "cite": "10 Ark. App. 92", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138021 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/10/0092-01" ] }, { "cite": "16 Ark. App. 102", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6653000 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/16/0102-01" ] }, { "cite": "16 Ark. App. 59", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6651334 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/16/0059-01" ] }, { "cite": "206 Ark. 392", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485136 ], "weight": 4, "year": 1943, "pin_cites": [ { "page": "400" }, { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ark/206/0392-01" ] }, { "cite": "4 Ark. App. 64", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137284 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/4/0064-01" ] }, { "cite": "271 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756192 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "386" }, { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ark/271/0385-01" ] }, { "cite": "241 Ark. 498", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724159 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ark/241/0498-01" ] }, { "cite": "212 Ark. 798", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470271 ], "weight": 2, "year": 1948, "opinion_index": 1, "case_paths": [ "/ark/212/0798-01" ] }, { "cite": "8 Ark. App. 144", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138911 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark-app/8/0144-01" ] }, { "cite": "12 Ark. App. 128", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138945 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark-app/12/0128-01" ] }, { "cite": "253 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627391 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/ark/253/0403-01" ] }, { "cite": "272 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174871 ], "weight": 4, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/272/0244-01" ] }, { "cite": "16 Ark. App. 102", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6653000 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/ark-app/16/0102-01" ] }, { "cite": "4 Ark. App. 64", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137284 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "66" } ], "opinion_index": 1, "case_paths": [ "/ark-app/4/0064-01" ] }, { "cite": "271 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756192 ], "weight": 2, "year": 1980, "opinion_index": 1, "case_paths": [ "/ark/271/0385-01" ] }, { "cite": "241 Ark. 498", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724159 ], "weight": 3, "year": 1966, "opinion_index": 1, "case_paths": [ "/ark/241/0498-01" ] } ], "analysis": { "cardinality": 825, "char_count": 19469, "ocr_confidence": 0.895, "pagerank": { "raw": 1.3959084034460363e-07, "percentile": 0.6437106951023013 }, "sha256": "02b4180cc8dcdcca041ecc8d057c413c2d709c4c6e030819c32a3a8b4791b1f2", "simhash": "1:6958ef1d5587daa0", "word_count": 3141 }, "last_updated": "2023-07-14T19:17:44.845649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield, J., concurs." ], "parties": [ "J.T. GUFFEY v. ARKANSAS SECRETARY OF STATE and ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEES CLAIMS DIVISION" ], "opinions": [ { "text": "Tom Glaze, Judge.\nAppellant, J. T. Guffey, appeals from the Commission\u2019s order, denying his claim for additional disability benefits. The denial was based, in part, on the Commission\u2019s findings that there is no statutory basis for the award of benefits known as \u201ccurrent total disability benefits,\u201d and, consequently, that it would no longer award such benefits. The Commission went on to decide that appellant was not entitled to permanent total disability benefits. Appellant raises two points on appeal: (1) whether the Commission erred in finding that the Arkansas Workers\u2019 Compensation Law does not provide for awards of current total disability benefits, and (2) whether the Commission erred in deciding the issue of permanent total disability.\nAppellant was employed as a maintenance worker for the Arkansas Secretary of State\u2019s office when, on July 27, 1981, he injured his right foot in a fall. Temporary total disability benefits were paid from July 28, 1981, through April 26, 1983. Thereafter, a fifty-five percent permanent partial impairment to the right foot was accepted and paid.\nAppellant had two surgeries to his right foot after his July 1981 injury, the last being on September 20, 1984. At a hearing before an administrative law judge on October 26, 1984, appellant contended he was entitled to additional benefits because he had an additional period of temporary total disability from April 26,1983, until August of 1984. Dr. Thomas, appellant\u2019s treating physician, had given appellant an anatomical rating on April 25, 1983, and in a later report dated April 11, 1985, he stated that appellant\u2019s healing period had ended approximately on May 1, 1983. Based on this and other testimony, the administrative law judge found that appellant failed to prove he was entitled to additional temporary total disability benefits.\nFor reversal on the first point, appellant argues that current total disability benefits \u00e1re authorized by the Workers\u2019 Compensation Law, case law, and public policy. We agree.\nStatutory language clearly provides for awarding total disability benefits after the healing period has ended. Ark. Stat. Ann. \u00a7 81-1313(a) (Repl. 1976), reads as follows:\nTotal Disability. In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-six and two-thirds percent (66 2/3%) of his average weekly pay. [Emphasis added.]\nDisability is defined in Ark. Stat. Ann. \u00a7 81 -1302(e) (Repl. 1976) as:\n[incapacity because of injury to earn, in the same or any other employment, the wages which, the employee was receiving at the time of the injury.\nThese sections clearly establish that an injured worker, who is totally unable to earn in the same or any other employment the wages he or she was receiving at the time of the injury, is entitled to receive benefits during the continuance of that total disability.\nBenefits in the form now known as \u201ccurrent total disability benefits\u201d were established by the Arkansas Supreme Court in McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W.2d 502 (1966). In that case, the court recognized that, in many instances, the benefits for scheduled injuries may have little or no relation to the claimant\u2019s period of disability. It upheld the Commission\u2019s decision to continue awarding total disability benefits until such time as the extent and duration of the disability could be determined. Part of the court\u2019s reasoning was that it was beneficial to both claimant and respondent to pay total disability until such determination could be made. In Sunbeam Corp. v. Bates, 271 Ark. 385, 386, 609 S.W.2d 102, 103 (Ark. App. 1980), this court upheld the Commission\u2019s decision to pay claimant benefits \u201cas long as appellee remains totally disabled.\u201d In City of Humphrey v. Woodward, 4 Ark. App. 64, 628 S.W.2d 574 (1982), we considered the same type indefinite-disability-period as delineated in McNeely and Sunbeam, and we merely adopted the Commission\u2019s description of it, affirming that the claimant was \u201ccurrently totally disabled\u201d and entitled to benefits indefinitely.\nThe Workers\u2019 Compensation Act has been construed for twenty years as providing for total disability payments beyond the healing period. While neither \u201ccurrent total disability\u201d nor \u201ctemporary total disability\u201d are mentioned in \u00a7 81-1313(a), the statutory provision providing for total disability, both terms have been defined by case law and employed in order to fulfill the intention of the Act.\nThe Arkansas Supreme Court held, over forty years ago, that workers\u2019 compensation laws were entitled to and have universally received a liberal construction from the courts. Williams Manufacturing Co. v. Walker, 206 Ark. 392, 175 S.W.2d 380 (1943). \u201cThe humanitarian objects of such laws should not, in the administration thereof, be defeated by overemphasis on technicalities \u2014 by putting form over substance.\u201d Id. at 400, 175 S.W.2d at 383.\nWe are committed to a liberal construction of the Workers\u2019 Compensation Law and to the rule that it should be interpreted in favor of the claimant when there is doubt as to its meaning. Sanyo Manufacturing Corp. v. Ferrell, 16 Ark. App. 59, 696 S.W.2d 779 (1985). We, along with the Commission heretofore, have recognized the need, in certain circumstances, for total disability benefits after the healing period is over, viz., in cases where an injured worker cannot, at that time, be determined permanently totally disabled. The fact that the total disability may not last forever is not harmful to the employer or the insurance carrier. Electro-Air v. Villines, 16 Ark. App. 102,697 S.W.2d 932 (1985). As was further noted in Villines, the cases in which current total disability is awarded are those cases in which the Commission is not quite ready to admit that a claimant will never be able to return to work. In Villines, the Commission obviously was hopeful that the claimant would learn to manage her pain and eventually return to the job market.\nBecause we hold the Commission erred in deciding that it had no legal authority to award current total disability benefits, we reverse and remand in order for the Commission to consider and decide appellant\u2019s entitlement to such benefits.\nAppellant\u2019s final point for reversal is that the Commission erred when it decided the issue of permanent total disability. The parties agree that it was stipulated at the hearing before the administrative law judge that the sole issue was appellant\u2019s status from April 26, 1983, until August of 1984. The administrative law judge decided only that issue, ruling appellant was not entitled to additional temporary total disability benefits after April 25,1983. Nonetheless, the Commission on appeal not only declined to recognize the concept of current total disability, but also it decided the appellant was not entitled to permanent total disability benefits. Here, the appellee argues that while both parties withdrew the permanency issue at the hearing before the law judge, the Commission was within its right to consider that issue inasmuch as appeals to the Commission are de novo. Appellee points to medical evidence and appellant\u2019s testimony which it suggests support the Commission\u2019s finding that appellant is not permanently and totally disabled.\nWe find no meaningful distinction between the instant case and our decision in Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983). There, we held the Commission erred when it based its decision on a finding of fact which was clearly not in issue or developed by the evidence. The Commission decided the issue, failing to give the parties any notice of its intent to do so or any opportunity to offer proof on that issue.\nThe parties here undisputedly agreed not to pursue the permanency issue, and it is left to speculation how the hearing before the law judge would have developed if that issue had been tried. While evidence was introduced bearing on the permanency issue, we are unable to conclude \u2014 as appellee suggests \u2014 that no additional evidence is available which could affect the Commission\u2019s finding in this respect. On the record before us, we are unwilling to say that the parties were afforded the opportunity to fully develop the issue concerning permanent total disability.\nReversed and remanded.\nMayfield, J., concurs.\nIn Arkansas State Highway Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), the supreme court did clarify the statutory law that temporary total disability benefits could not be paid beyond the healing period.", "type": "majority", "author": "Tom Glaze, Judge." }, { "text": "Melvin Mayfield, Judge,\nconcurring. I agree that the Commission erred in refusing to consider whether the appellant was entitled to current total disability benefits; however, I put my decision upon a different basis than that of the majority opinion.\nAs I understand the opinion, the majority agrees with the appellant\u2019s argument that the phrase \u201ctotal disability,\u201d found in Ark. Stat. Ann. \u00a7 81-1313(a) (Repl. 1976), is properly interpreted to include the concepts of \u201ctemporary total disability,\u201d \u201ccurrent total disability,\u201d and \u201cpermanent total disability.\u201d Although I would be willing to so interpret the statute, I doubt that view is in keeping with the Arkansas Supreme Court cases of McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W.2d 502 (1966) and Arkansas State Highway Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).\nIn McNeely, the court held that an employee who suffers a scheduled injury \u201cwhich proves to be totally and permanently disabling\u201d is not confined to the restricted compensation specified for the scheduled injury but is entitled to the \u201cgreater benefits provided for total and permanent disability.\u201d The opinion concluded as follows:\nThe appellees complain of the fact that the commission, in finding this claimant\u2019s disability to be total, failed to find that it was also permanent. Instead the commission said that the duration of the disability is not determinable at this time. Inasmuch as there was substantial evidence that might have sustained a finding of permanency \u2014 a fact issue upon which we express no opinion \u2014 we fail to see how appellees are hurt by the commission\u2019s deferment of this question until the exact extent of the disability might become clearer.\nSix years later, the Arkansas Supreme Court again held that a scheduled injury may give rise to an award of compensation for \u201ctotal disability,\u201d and, without any reference to the term \u201cpermanent,\u201d said the Commission\u2019s finding of \u201ctotal disability\u201d was amply supported by the record. See Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W.2d 82 (1972). Then, almost ten years later, in the Breshears case, the Supreme Court held that under section 81-1313(a), supra, an employee is entitled to receive total disability benefits for that period within the healing period in which the employee suffers a total incapacity to earn wages. The court referred to this as \u201ctemporary total disability\u201d and compared it with \u201ctemporary partial disability\u201d which is expressly provided for under subsection (b) of section 81-1313. The court also made it. clear that the reason it held \u201ctemporary total disability\u201d to be limited to the healing period was because subsection (a) is silent on the point, but subsection (c) expressly provides that an employee who sustains a scheduled injury is entitled to compensation for the healing period in addition to the compensation allowed for the scheduled injury.\nIt should be noted that in providing for total disability benefits, section 81-1313(a) does not use the terms \u201cpermanent\u201d or \u201ctemporary.\u201d Thus, it may be permissible to also apply the term \u201ccurrent\u201d to the provision for total disability. On the other hand, it may be that the holding in Breshears has limited total disability benefits under section 81-1313 (a) to (1) where the disability is permanent and, (2) where the disability is temporary \u2014 that is, in existence only during the healing period. If this is the meaning of Breshears, and since the McNeely case was not even mentioned, it seems reasonable to assume that the concluding paragraph in McNeely means exactly what it says. In fact, the Arkansas Court of Appeals relied upon that meaning in Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984), where we said:\nMcNeely gave expression to a concept of applied law that remained without a label until City of Humphrey v. Woodward, 4 Ark. App. 64, 66, 628 S.W.2d 574 (1982), almost 16 years later. In that case, we adopted a phrase used for convenience by the Commission in its opinions and upheld the indefinite benefits of an employee found to be \u201ccurrently totally disabled.\u201d We discussed the development of this area of the law and observed that\nnow when we speak of total disability, such benefits may be denominated further in terms of \u201ccurrent\u201d total, \u201climited\u201d total or total disability benefits \u201cuntil such time as total disability ceases.\u201d . . . Obviously, in making such an award, the Commission remains hopeful that the claimant\u2019s disability is not permanent and that he will eventually return to work.\nIn the instant case, we agree with appellee\u2019s argument based upon McNeely, supra, and Taylor v. Pfeiffer Plbg. & Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983), that a claimant\u2019s benefits for a scheduled injury are not limited to the benefits provided by Ark. Stat. Ann. \u00a7 81-1313(c) when the scheduled injury renders the claimant totally disabled. Here, the Commission found that appellee\u2019s injuries rendered him totally disabled. The fact that the Commission found the total disability to be \u201ccurrently\u201d total seems to be no different from the situation in McNeely. We fail to see how the appellants are hurt by the possibility that the total disability in the instant case may not last forever.\nSee also the recent case of Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985), which relied upon Bemberg.\nThe view of the Commission in the past, as to the application of the concept of current total disability, is revealed in the Commission\u2019s opinion in the instant case by the following quotation from a prior (unpublished) opinion written by a former chairman of the Commission.\nIt is perhaps appropriate to observe at this point that the Commission itself for the past few years has been increasingly applying the concept of current total disability (or something akin thereto without using that particular terminology) without really defining the doctrine, without stating its specific statutory authorization, and without describing its parameters. The increasing utilization of this concept, be it a judicial hybrid or whatever, has probably been brought about at least in part by the Arkansas Supreme Court decision in Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), absolutely restricting temporary total disability to the healing period as defined by Ark. Stat. Ann. \u00a7 81-1302(f). Oftentimes the Commission reviews cases in which the healing period has ended, the claimant is still totally disabled from working, but because of the claimant\u2019s age or the nature of his disability, the Commission is reluctant to indelibly stamp the claimant permanently as well as totally disabled. Experience with virtually thousands of cases over the years has taught that even though the underlying condition may have stabilized and the claimant may have reached the maximum medical improvement, time itself has healing properties which occasionally return a once totally disabled worker to productive gainful employment.\nThe reasons for abandoning the use of the concept of current total disability as expressed in the Commission\u2019s opinion in the instant case, written by the present chairman, seem to be that there is no statutory basis for it, plus an apparent agreement with the reasoning stated in the dissenting opinion in Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (Ark. App. 1980).\nUnder the statutory interpretations of the Arkansas Supreme Court, I agree there is no statute expressly authorizing the application of the concept of current total disability, but I also believe the application of that concept is not prohibited by statute. Therefore, I see no valid objection to the continued application of the holding in McNeely, which is based on the idea that employers, and their insurance carriers, cannot complain of the fact that the duration of the total disability found by the Commission was not determinable at that time. Although the issue is not before us, the same idea would seem to be applicable to an employee \u2014 as long as he is receiving current total disability benefits he should have no reason to complain that they may not last forever.\nExcept for the lack of a statutory basis, the objections to the concept of current total disability expressed in the dissenting opinion in Sunbeam are simply evaluations of conflicting considerations. Indeed, the dissent states that \u201cin a way\u201d the majority decision \u201cmakes good sense.\u201d One objection expressed is that employers might try to \u201cride herd\u201d on former employees found to have a \u201climited\u201d total disability, and if the employee obtains \u201csome sort of job\u201d he would be \u201chauled back before the Commission for reevaluation.\u201d In that event, I would think the burden would be on the employer to establish that the employee was no longer totally disabled. This is the rule where an insured has been found totally disabled under the provisions of an insurance policy and the company contends the disability has ended, DeSoto Life Insurance Co. v. Jeffett, 212 Ark. 798, 207 S.W.2d 743 (1948), and the situations are certainly similar. This rule, coupled with the likelihood of having to pay the fee of claimant\u2019s attorney as a result of controverting the continuance of the total disability status, would serve to prevent the employer from abusing the right of hauling the employee back before the Commission. But, in any event, the employee in the instant case admits that the employer would have the right to future hearings to determine whether the total disability still existed.\nIt should also be noted that an amicus curiae brief filed by the Arkansas State AFL-CIO and the Arkansas Trial Lawyers\u2019 Association strongly argues that the Commission \u201cerred in abolishing a twenty year practice and policy of awarding disability benefits to injured employees who are unable to return to the workforce after the healing period has ended.\u201d Stating that many of these employees \u201cexpect that in the near future they will adjust to the pain and discomfort and rejoin the workforce,\u201d the brief contends that they should not be refused total disability simply because the Commission is not willing to make a finding that the disability will be permanent.\nI concur in the result of the majority opinion and agree that this case should be reversed and remanded to the Commission for a rehearing and determination on the issue of current total disability.", "type": "concurrence", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "Gary Eubanks & Associates, by: James Gerard Schulze,- for appellant.", "Youngdahl, Youngdahl & Wright, P.A., by: Randall G. Wright-, and James A. McLarty, for amici curiae Arkansas State AFL-CIO and Arkansas Trial Lawyers\u2019 Association.", "Jerry G. James, for appellee." ], "corrections": "", "head_matter": "J.T. GUFFEY v. ARKANSAS SECRETARY OF STATE and ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEES CLAIMS DIVISION\nCA 86-5\n710 S.W.2d 836\nCourt of Appeals of Arkansas En Banc\nOpinion delivered June 4, 1986\nGary Eubanks & Associates, by: James Gerard Schulze,- for appellant.\nYoungdahl, Youngdahl & Wright, P.A., by: Randall G. Wright-, and James A. McLarty, for amici curiae Arkansas State AFL-CIO and Arkansas Trial Lawyers\u2019 Association.\nJerry G. James, for appellee." }, "file_name": "0054-01", "first_page_order": 74, "last_page_order": 84 }