{ "id": 1715310, "name": "HART'S EXXON SERVICE STATION, Employer, FARM BUREAU INSURANCE COMPANIES, Insurance Carrier v. Joe PRATER", "name_abbreviation": "Hart's Exxon Service Station v. Prater", "decision_date": "1980-04-02", "docket_number": "CA 79-337", "first_page": "961", "last_page": "966", "citations": [ { "type": "official", "cite": "268 Ark. 961" }, { "type": "parallel", "cite": "597 S.W.2d 130" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "259 Ark. 675", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619193 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/259/0675-01" ] }, { "cite": "264 Ark. 894", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668868 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/264/0894-01" ] }, { "cite": "262 Ark. 434", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675962 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0434-01" ] }, { "cite": "259 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619060 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/259/0076-01" ] } ], "analysis": { "cardinality": 464, "char_count": 7619, "ocr_confidence": 0.894, "pagerank": { "raw": 3.7012542201317026e-07, "percentile": 0.8929283135812165 }, "sha256": "2baf7225176fd26deb35ce588cbe670c3be9eb4bd614cbf37c4da49fb065a3e7", "simhash": "1:b23a05dfd2875a87", "word_count": 1249 }, "last_updated": "2023-07-14T19:03:10.426772+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HART\u2019S EXXON SERVICE STATION, Employer, FARM BUREAU INSURANCE COMPANIES, Insurance Carrier v. Joe PRATER" ], "opinions": [ { "text": "Marian F. Penix, Judge.\nThe claimant, Joe Prater, suffered a compensable injury August 21, 1977 while an employee of Hart\u2019s Exxon. At the time of the accident claimant had a second job with the Marianna School District. Hart\u2019s Exxon turned in a claim to the Farm Bureau Insurance office in Marianna which mailed a claim notice to Farm Bureau in Little Rock on August 23. On August 29, Claimant employed an attorney to represent him. Farm Bureau mistakenly processed the claim as an accident covered by a general liability policy. On September 7, 1977 the local Farm Bureau\u2019s agent discovered the error and refiled the claim as a workers\u2019 compensation claim. On September 15 Farm Bureau contacted a local adjuster requesting information on the claim. On September 19 the Claimant\u2019s attorney mailed an A-7 form to the Arkansas Workers\u2019 Compensation Commission and a copy was forwarded to Farm Bureau. On September 28 the Farm Bureau mailed checks to the Claimant \u2014 five weeks from the date of the injury. The Claimant was awarded compensation based on his earnings from Hart\u2019s Exxon alone. The award was for permanent partial disability of 35% to the body as a whole. The Commission affirmed the Administrative Law Judge\u2019s holding that the claim had been controverted.\nThe Respondents appeal from the finding of 35% disability to the body as a whole and from the determination that the claim had been controverted in its entirety.\nThe Claimant appeals alleging the compensation rate should have been based upon his combined earnings from his two jobs.\nI\nThe Respondents deny having controverted the claim in its entirety. The respondents concede 8% to the body as a whole but controvert all above that amount.\nOur question becomes, was there substantial evidence to support the Commission\u2019s finding that the claim was controverted in its entirety, and was there substantial evidence to support the 35% permanent partial to the body as a whole.\nThe Respondents argue the 15 day period within which respondents must pay benefits commences from the date the employee-claimant serves notice on the Commission. The first duty to report an injury to the Workers\u2019 Compensation Commission lies with the employer not the employee. Ark. Stat. Ann. \u00a7 81-1334.\nThe Commission\u2019s first notice of this injury was not provided by the employer within 10 days as required by \u00a7 81-1334, supra. The Claimant\u2019s attorney first informed the Commission. The employer is not entitled to extend its duty to pay compensation within 15 days by withholding the filing of the claim with the Commission in the first instance. The employer was aware of the injury on the date it occurred, August 21. The employer did not notify the Commissson within the 10 days as required by law. The primary responsibility is on the employer.\nIf there was a mistake made by Respondents in processing the claim initially, the Respondents must bear the resultant loss. If the Respondents could plead clerical or administrative mistake, the injured worker would be placed in an untenable position. He would have no way to rebut such a defense to controversion. The Farm Bureau discovered its process error on September 7. Respondents still delayed payment 21 more days even though Hart\u2019s Exxon knew of the injury on August 21. The compensation payments were due to begin the 15th day after Hart\u2019s Exxon had notice of the injury. Such date would have been September 5. The first installment was mailed to Claimant on September 28 \u2014 some 5 weeks from the date Hart\u2019s Exxon knew of the injury.\nWe find substantial evidence to support the finding of controversion.\nII\nThe Commission found 35% disability. Dr. Joe Lester estimated the Claimant\u2019s permanent anatomical impairment to be 8%. At the time of the injury, the Claimant was 40 years old, had a tenth grade education and a stuttering impediment. Because of his injury, the Claimant can no longer do the general service station duties required at Hart\u2019s Exxon. Since receiving the crushing injury between two motor vehicles the Claimant has had problems with urinary incontinence. He has continued his job as janitor but has Youth Corps workers to help with mopping and with running the buffer.\nWe find substantial evidence to support the Commission\u2019s award of 35%. See Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W. 2d 465 (1976) which stated:\nIn approving disability ratings in excess of the percentage disability based on medical evidence alone, consideration is given not only to the medical evidence, but also to the Claimant\u2019s age, education, experience, and other matters affecting wage loss.\nThe Respondents point to testimony which indicates the Claimant now directs school traffic 45 minutes in the morning and 30 minutes in the afternoon and is a volunteer deputy sheriff and they urge a reversal for lack of substantial evidence. On review, this Court must look to the evidence most favorable to the appellee claimant and affirm if there is any substantial evidence to support the Commission\u2019s decision. Dillaha Fruit Co. v. LaTourrette, 262 Ark. 434, 557 S.W. 2d 397 (1977); Foster v. Johnson, 264 Ark. 894, 576 S.W. 2d 187 (1979); Aluminum Company of America v. McClendon, 259 Ark. 675, 535 S.W. 2d 832 (1976). The question on appeal is not whether we would have reached the same decision. We hold there is substantial evidence to support the Commission\u2019s finding. Dillaha Fruit Co., supra.\nIll\nThe Claimant\u2019s appeal contending his compensation should be calculated on the combined incomes of his employment with Hart\u2019s Exxon and the Marianna School District must be denied.\nThe premiums received by the insurance carrier to cover the risk must be determinable. They are generally based on the payroll of the employer. Quite obviously, the risk insured by a policy of workers\u2019 compensation could not be determined with any degree of accuracy if compensation rates were computed on incomes outside the covered employment.\nArk. Stat. Ann. \u00a7 81-1302(h) provides:\n(h) \u2018Wages\u2019 means the money rate at which the service rendered is recompensed under the contract of hire inforce at the time of the accident. . . .\nArk. Stat. Ann. \u00a7 81-1312 provides:\n. . . Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident. . .\nBecause the Workers\u2019 Compensation Act is remedial it should be construed liberally. But liberal construction does not mean enlargement or restriction of any plain provision of the law. If a statutory provision is plain and unambiguous, it is the duty of the Court to enforce it as it is written.\nThere is no provision for combining wages. In 2 Larson\u2019s Workmen\u2019s Compensation Law, \u00a7 60.30, Professor Larson discusses the majority rule as being \u201cthe earnings may be combined if, but only if, the employments were \u2018related\u2019 or \u2018similar\u2019 \u201d.\nIn the instant case the service station job and the janitorial job at the school are not related nor similar. The school district did not pay workers\u2019 compensation premiums to Respondent Carrier. To remain solvent, the insurance carriers must receive a premium commensurate with the risk assumed.\nFor the above reasons, we affirm the Commission on all points and allow an additional attorney\u2019s fee of $250.00 to the Claimant\u2019s attorney.", "type": "majority", "author": "Marian F. Penix, Judge." } ], "attorneys": [ "Daggett, Daggett & Van Dover, by: Jesse B. Daggett, for appellants.", "Ray & Donovan, for appellee." ], "corrections": "", "head_matter": "HART\u2019S EXXON SERVICE STATION, Employer, FARM BUREAU INSURANCE COMPANIES, Insurance Carrier v. Joe PRATER\nCA 79-337\n597 S.W. 2d 130\nCourt of Appeals of Arkansas\nOpinion delivered April 2, 1980\nReleased for publication April 23, 1980\nDaggett, Daggett & Van Dover, by: Jesse B. Daggett, for appellants.\nRay & Donovan, for appellee." }, "file_name": "0961-01", "first_page_order": 997, "last_page_order": 1002 }