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Skinner v. Tango Transport, Inc.

Court of Appeals of Arkansas, Division I

June 1, 2016

HERSCHEL SKINNER, APPELLANT
v.
TANGO TRANSPORT, INC., YORK RISK SERVICE GROUP, and DEATH & PERMANENT TOTAL DISABILITY TRUST FUND, APPELLEES

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G006774]

Rogers, Coe & Sumpter, by: Joe M. Rogers, for appellant.

David L. Pake, for appellee Death & Permanent Total Disability Trust Fund.

CLIFF HOOFMAN, Judge

Appellant Herschel Skinner appeals from a September 14, 2015 opinion by the Arkansas Workers' Compensation Commission (Commission) affirming and adopting the findings of fact and conclusions of law made by the Administrative Law Judge (ALJ) in favor of appellees Tango Transport, Inc. (Tango Truck), and York Risk Service Group, Inc. (collectively Respondents No. 1), and the Death and Permanent Total Disability Trust Fund (Respondent No. 2). On appeal, appellant contends that (1) the Commission erred in holding that he was not entitled to simultaneous payments of permanent partial-disability (PPD) benefits in a lump sum and accrued permanent total-disability (PTD) benefits under the doctrines of law of the case and res judicata; (2) Respondents No. 1's payment of the PPD scheduled injury award of $23, 675.63 was not an advance payment of compensation pursuant to Arkansas Code Annotated section 11-9-807(a) (Repl. 2012) that entitles Respondents No. 1 to a credit toward their maximum obligation for PTD benefits; (3) appellant is entitled to receive PTD benefits at the rate of $455.00 per week from the end of his healing period on June 10, 2011, for the rest of his life without any lapse in payments under the doctrines of law of the case and res judicata; and (4) Respondents No. 1 owe interest on the balance of the disability benefits. We affirm.

Some background information is essential to understanding appellant's points on appeal. Appellant injured his right foot while working at Tango Truck on June 10, 2010, and it was determined that his healing period ended June 10, 2011. At that time, Respondents No. 1 controverted appellant's entitlement to temporary total-disability (TTD) benefits for the period from June 16, 2010, through July 13, 2010, and from April 6, 2011, through June 10, 2011; permanent physical impairment in excess of 6.25% to the right foot; and PTD benefits. Appellant had argued that he was not only entitled to an anatomical impairment of 53% rather than 6.25% as alleged by Respondents No. 1, but that he was, in fact, totally disabled and entitled to PTD benefits because he was unable to return to work. A hearing before the ALJ regarding these issues was held on May 25, 2012.

The ALJ specifically made the following findings in his August 23, 2012 written opinion:

FINDINGS

1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim.
2. The employment relationship existed on June 10, 2010, when the claimant sustained a compensable injury to his right foot, during which time he earned an average weekly wage of $681.82, generating weekly compensation benefit rated of $455.00/$341, for total/permanent partial disability.
3. The claimant was temporarily totally disabled for the periods commencing June 16, 2010 through July 13, 2010, and April 6, 2011 and continuing through June 10, 2011.
4. The claimant reached the end of his healing period on June 10, 2011, with a permanent physical impairment in the amount of 53% to the right foot, as a result of the June 10, 2010, compensable injury.
5. When the claimant's age, education, work history, permanent restrictions and limitations, coupled with other matters reasonably expected to affect his future earning capacity are considered, the evidence preponderates that the claimant has been rendered permanently and totally disabled within the purview of the Arkansas Workers' Compensation Act.
6. Respondents are entitled to credit for the overpayment of indemnity benefits to and on behalf of the claimant at an erroneous rate, and are not estopped to claim same pursuant to Ark. Code Ann. § 11-9-713.
7. Respondents #1 shall pay all reasonable hospital and medical expenses arising out of the claimant's compensable injury of June 10, 2010.
8. Respondents #1 have controverted the claimant's entitlement to temporary total disability benefits for the period June 16, 2010 through July 13, 2010, and April 6, 2011 through June 10, 2011; permanent physical impairment in excess of ...

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