Death & Permanent Total Disability Trust Fund v. Hempstead County

Ernie E. Wright, Acting Chief Judge. Appellant, Death and Permanent Total Disability Trust Fund, appeals from a November 2,1989, decision of the Arkansas Workers’ Compensation Commission finding that appellee, Public Employee Claims Division, in calculating its maximum liability under Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976), is entitled to credit for both permanent total disability benefits paid to the claimant during his lifetime and death benefits paid to claimant’s dependent. The facts in the case are not in dispute. The claimant suffered a compensable injury to his hip on July 30, 1977, and reached the end of his healing period on September 17,1979. He was assigned a permanent physical disability rating of 40 % to the body as a whole. On September 17, 1979, appellee Public Employee Claims Division began paying permanent total disability benefits to the claimant at the rate of $84.00 per week. On November 14, 1981, the claimant died as a result of complications from surgery to replace his injured hip. The claimant was survived by his wife and on November 15,1981, appellee Public Employee Claims Division began paying widow’s benefits to claimant’s wife in an amount equal to $47.60 per week. The only issue on appeal is whether the Commission erred as a matter of law by allowing appellee to credit weekly permanent disability benefits paid the employee during his lifetime against its maximum obligation to the surviving spouse. The date of the injury was July 30,1977, and Ark. Stat. Ann. § 81-1310(c)(2) is applicable. The statute reads in part: The first Fifty Thousand Dollars ($50,000) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier in the manner provided in this Act [§§ 81-1301 — 81-1349]. An employee or dependent of an employee who receives a total of Fifty Thousand Dollars ($50,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this Act but all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable from the Death and Permanent Total Disability Bank Fund. Appellant, citing Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986), asserts that the first rule in interpreting a statute is to construe it just as it reads by giving the words their ordinary and usually accepted meaning. Appellant argues that the disjunctive particle “or” in the first sentence of the statute permits only one reasonable interpretation, that being before benefits become payable from the Death and Permanent Total Disability Bank Fund, there must either be payment of a total of $50,000 of weekly permanent total disability benefits or there must be payment of a total of $50,000 of weekly death benefits. Additionally, appellant contends a claimant’s permanent total disability benefits and a dependent’s death benefits are “two entirely separate entities” that derive from two separate statutory sources, Ark. Code Ann. §§ 11-9-519 and 11-9-527 (1987). Appellant argues that because the beneficiary of one benefit has no right to share in the benefits of the other beneficiary, the employer cannot take credit for its payments to one beneficiary in calculating its maximum liability to the other. Appellant contends that other provisions of the Workers’ Compensation Law support this interpretation. We disagree and affirm the decision of the Commission. This court, when construing statutes with no indication of a different legislative intent, gives' words their ordinary and usually accepted meaning in common language; however, the ordinary and generally accepted meaning must yield to the meaning intended by the General Assembly when it is clear from the act in its entirety that a different meaning is intended. Second Injury Fund v. Yarbrough, 19 Ark. App. 354, 721 S.W.2d 686 (1986). Furthermore, the supreme court in Holt v. City of Maumelle, 302 Ark. 51, 786 S.W.2d 581 (1990), held that in statutory construction the basic rule to which all other interpretative guides are really subordinate is to give effect to the intent of the legislature. As there is some ambiguity in the statute, the court is required to determine what the legislature intended when it drafted the statute. Prior to the adoption of Initiated Act 1 in 1968, amending the Workers’ Compensation Law, Ark. Stat. Ann. § 81-1310 limited the total disability benefits payable to $12,000 and total death benefits to $12,500. The 1968 Act eliminated the maximum benefits payable for total permanent disability and death. Act 221 of 1973, brought Ark. Stat. Ann. § 81-1310(c)(2) into the code, and its purpose was clearly to create a maximum weekly benefit for which the employer or his insurance carrier would be liable. The Act does not limit the maximum benefits payable for total permanent disability or death but fixes the maximum for which the employer or his carrier is liable. The Act also creates and provides for the funding of the Death and Permanent Total Disability Bank Fund which is made responsible for payment of benefits in excess of the maximum to be paid by the employer or his carrier. In § 81-1310(c)(2), after referring to both death benefits and permanent total disability benefits, the following language appears: [A] 11 such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable from the Death and Permanent Total Disability Bank Fund. We believe this language makes it clear that the intent of the legislature in passing Act 221 of 1973, was to place an overall limit on the weekly benefits payable by the employer or his carrier to $50,000, whether the benefits were for death or permanent total disability or both. The opinion of this court in Hill v. CGR Medical Corporation, 9 Ark. App. 334, 660 S.W.2d 171 (1983) in touching upon the issue here appears to support this view in saying: We agree with the Commission that a fair reading of the statute requires that the first $50,000 be paid in weekly benefits by the employer or his carrier and received by the employee or the dependents of an employee before the liability of the Death and Permanent Total Disability Bank Fund arises. . . . The phrase “for permanent total disability or death benefits” upon which appellant bases his argument merely describes the types of weekly benefits to which the maximum liability of the employer or his insurance carrier applies. Affirmed. Mayfield and Cracraft, JJ., dissent.