BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G STATE OF ARKANSAS/ PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G MELINDA CASTANEDA, EMPLOYEE NATIONAL PARK COMMUNITY COLLEGE, EMPLOYER STATE OF ARKANSAS/ PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED MAY 25, 2017 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Garland County, Arkansas. The claimant was represented by HONORABLE ANDY L. CALDWELL, Attorney at Law, Little Rock, Arkansas. The respondents were represented by HONORABLE ROBERT H. MONTGOMERY, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on March 31, 2017, in Hot Springs, Arkansas. A Prehearing Order was entered in this case on January 9, The following stipulations were submitted by the parties and are hereby accepted: 1. The Arkansas Workers Compensation Commission has jurisdiction of this claim. 2. The employer/employee/carrier relationship existed on or about June 5, The claimant sustained a right shoulder injury on that date which was accepted as compensable by the respondents. 4. The claimant s average weekly wage on that date was $531.25, with corresponding compensation rates of $ for temporary total disability and $ for permanent partial disability, respectively. 5. The claimant was paid temporary total disability benefits through May 18, 2016.

2 2 6. The claimant was terminated on April 1, The respondents controvert the present claim for additional temporary disability benefits and/or 505(a) benefits. By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: 1. Additional temporary total disability benefits, or in the alternative, permanent partial disability benefits for her shoulder injury, or an IME to determine permanent partial disability. (T. 5) 2. Wage-loss and section 505(a) benefits from May 10, 2016 through a date yet to be determined up to one year. 3. Vocational rehabilitation. 4. Attorney s fees. 5. Offset under Ark. Code Ann (T. 6) The record consists of the March 31, 2017, hearing transcript and the exhibits contained therein. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The claimant has failed to establish by a preponderance of the evidence that her period extended beyond May 18, 2016; the claimant s claim for temporary disability benefits after May 18, 2016, must therefore be denied in its entirety. 2. The preponderance of the evidence establishes that the claimant has no impairment as a result of her compensable right shoulder injury and surgery; since her treating surgeon has addressed impairment, I find that the circumstances in the present case also do not warrant an independent medical evaluation in order to determine the claimant s impairment. 3. Because the claimant has no compensable impairment, her claim for permanent disability in

3 3 excess of anatomical impairment must be denied in its entirety. 4. Because the claimant has no compensable permanent disability, her claim for vocational rehabilitation must be denied in its entirety. 5. The claimant has established by a preponderance of the evidence that she is entitled to benefits under Arkansas Code Annotated section (a) beginning on May 19, 2016, and continuing for one year. 6. Since Arkansas Code Annotated section makes no reference to benefits owed pursuant to Arkansas Code Annotated section (a), the respondents are not entitled to reduce the claimant s benefits under Arkansas Code Annotated section (a) by any amount of money that the claimant has previously received for the same period as unemployment insurance benefits. DISCUSSION The claimant, Melinda Castaneda, went to work part-time at National Park Community College in approximately 2009 or (T. 13) She was later hired by the community college full-time under annual contracts. (T. 13) These contracts provided that Ms. Castaneda only worked during the school year, but also got paid during the summer. (T. 14) As an instructor s aide in the community college s high school career center, Ms. Castaneda s job tasks included such functions as taking attendance and documenting absences, substitute teaching, grading papers, inputting grades, setting up and tearing down labs, and teaching the high school students how to do personal care on patients. (T. 27, 97-98)

4 4 Ms. Castaneda generally had her performance evaluations and signed a new contract 1 for the upcoming school year in April or May. (T. 14, 29, 100) When presented her contract in April or May of 2015 for the upcoming school year 2, however, Ms. Castaneda was advised that her position (instructor s assistant) was being eliminated at the end of the school year. (T. 29) Her position was being replaced with another full-time instructor position. (T. 99) Ms. Castaneda s unfortunate right shoulder injury occurred shortly thereafter on June 5, 2015, when her group fell in an off-site team building exercise. (T. 14) Dr. James Rudder ultimately performed surgery on Ms. Castaneda s shoulder on September 24, 2015, and he later also performed a manipulation under anesthesia on January 18, 2016 (C. Exh. 1 p. 39, 62) National Park Community College terminated Ms. Castaneda s employment on April 1, 2016, because she was unable to return to work at that time, because her 2016 FMLA had run out, and because the community college intended to 1 Neither party offered into evidence any of Ms. Castaneda s employment contracts at National Park Community College but the precise terms of the annual contracts are apparently not in dispute and not relevant to the issues presently before the Commission. 2 While the attorneys at the hearing would refer to either the 2015 school year or the 2016 school year I intend the school year hereafter to refer to the school year that began in August of 2015 and ended in June of 2016.

5 5 use the funds previously designated for Ms. Castaneda s health insurance and life insurance in order to pay for a replacement aide to replace her for the remainder of the school year. (T. 78, 82, 84, Cl. Exh. 2 p. 1) On May 18, 2016, Dr. Rudder released Ms. Castaneda to normal duty work with no impairments and no restrictions. (R. Exh. 1 p. 9) Public Employee Claims therefore ended Ms. Castaneda s temporary disability benefits on May 18, (Comm. Exh. 1 p. 2) Notwithstanding Dr. Rudder s release to normal duty work in May of 2016, Ms. Castaneda had not returned to work anywhere as of the hearing conducted on March 31, (T. 21) Ms. Castaneda underwent physical therapy prescribed by Dr. Rudder until Dr. Rudder released her in May of 2016 at maximum medical improvement, and in September of 2016, Ms. Castaneda received a change of physician to Dr. Shahryar Ahmadi. (T , R. Exh. 1 p. 8-9, R. Exh. 2 p. 4) After obtaining a new MRI, Dr. Ahmadi concluded in October of 2016, that Ms. Castaneda s rotator cuff had completely healed and that she could go back to normal activity without any restriction, but that if she did not respond to only conservative treatment, the two could eventually consider an arthroscopic debridement. (C. Exh. 1 p. 71) The claimant contends that her release by Dr. Rudder in May of 2016 without restrictions or impairment notwithstanding her continuing symptoms was inexplicable, that she is not yet at maximum medical improvement, and that

6 6 she is entitled to additional temporary total disability compensation benefits from May 18, 2016, and continuing to a date yet to be determined. (C. Exh. 1 p. 3) Alternatively, the claimant contends that she is entitled to benefits under Arkansas Code Annotated section (a), an impairment rating (or an IME to determine her rating), and wage loss or vocational rehabilitation. (Comm. Exh. 1. p. 3) The respondents contend that the claimant is not entitled to additional temporary disability benefits or benefits for impairment/wage loss since Dr. Rudder released her to return to work at maximum medical improvement with no impairment or restrictions in May of (Comm. Exh. 1 p. 4) In addition, with regard to the claim for benefits under Arkansas Code Annotated section (a), Janet Brewer, the National Park Community College administrator who advised Ms. Castaneda by that her employment would be terminated effective April 1, 2016, testified that the school terminates employees in the workers compensation type setting for reasonable cause. (T. 77) Issue 1: Evidentiary Objections On page 23 of the hearing transcript Mr. Montgomery objected to Mr. Caldwell summarizing in a question information contained in Dr. Ahmadi s report. However, Mr. Montgomery concluded his cross-examination on pages 46 and 47 of the hearing transcript with the exact same type of questions. Under these circumstances, Mr. Montgomery s

7 7 objection on page 23 is overruled, and all proffered testimony on page 23 has been considered in rendering a decision in this case. On page 58 of the hearing transcript, Mr. Caldwell asked Ms. Brewer about a reference in an chain on page 6 of Respondent s Exhibit 2 which begins Your doctor released you to come back to work on March 15 as stated below... Mr. Caldwell asked Do you know where that statement came from? and Ms. Brewer responded Yes, sir. There was some FMLA documentation, physician s statement, and the doctor had indicated that she could return to work on March 15 th. Mr. Caldwell then sought to strike Ms. Brewer s answer as hearsay since no paperwork from a doctor releasing Ms. Brewer to work on March 15, 2016, was introduced into evidence by either party. Mr. Caldwell s objection is overruled. Mr. Caldwell did not object to the admissibility of the and instead also introduced into evidence the same himself. Ms. Brewer, based on her recollection, dutifully answered Mr. Caldwell s question regarding the basis for the statement in the . I conclude that the fact that no party has introduced into evidence any doctor s statement, on FMLA paperwork or otherwise, to support the s statement about a release to work, should go to the evidentiary weight to accord the and Ms. Brewer s related testimony, rather than the admissibility of her

8 8 answer to Mr. Caldwell s question about the basis for her e- mail s statement. Issue 2: Additional Temporary Disability Compensation Temporary total disability for unscheduled injuries is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Arkansas State Highway & Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). In the present case, I find based on Dr. Rudder s opinion on May 18, 2016, that Ms. Castaneda reached maximum medical improvement, and therefore the end of her hearing period for her compensable shoulder injury on that date. (R. Exh. 2 p. 9) Dr. Rudder was Ms. Castaneda s treating surgeon, and it appears to this examiner that Dr. Rudder s conclusions are consistent with a later MRI and Dr. Ahmadi s conclusion that the MRI indicated that the rotator cuff had completely healed. (C. Exh. 1 p. 71) Temporary total disability benefits cannot be awarded after a claimant's healing period has ended. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987). Therefore, I find that the claimant has failed to establish that she is entitled to any

9 9 period of additional temporary disability benefits after her healing period ended on May 18, Issue 3: Permanent Impairment, Independent Medical Evaluation, Wage Loss, Vocational Rehabilitation. The Arkansas Court of Appeals thoroughly discussed the requirements necessary to establish an entitlement to benefits for a permanent anatomical impairment in Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003). First, benefits for permanent impairment must be based on an impairment rating using the AMA Guides to the Evaluation of Permanent Impairment (4 th ed. 1993). The Commission may review the Guides even if the Guides are not in the record, and the Commission may determine its own impairment rating under the Guides, rather than simply assessing the validity of impairment ratings assigned by doctors. Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003). Second, benefits for permanent anatomical impairment shall be awarded only if the claimant s compensable injury is the major cause of the impairment at issue. Ark. Code Ann (4)(F)(ii)(a). The provisions of Ark. Code Ann (4)(F)(ii)(b) do not apply in determining a claim for permanent anatomical impairment. Michael v. Keep & Teach, Inc., 87 Ark. App. 48, 185 S.W.3d 158 (2004). Major cause means more than 50% of the cause. Ark. Code Ann (14).

10 10 Third, a determination of the existence and extent of physical impairment must be supported by objective and measurable physical findings. Ark. Code Ann (c)(1)(B). Objective findings are defined as those findings which cannot come under the voluntary control of the patient. Ark. Code Ann (16)(A)(i). When determining the permanent physical impairment, neither a doctor nor the Commission may consider complaints of pain. If the allegation of permanent physical impairment is supported by objective and measurable findings, then the Commission must also consider the credibility of relevant subjective evidence as well in assessing permanent impairment. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006). In the present case, I find based on Dr. Rudder s opinion dated May 10, 2016, that Ms. Castaneda has no permanent impairment. (R. Exh. 1 p. 8) Again, Dr. Rudder s opinion in this regard appears consistent with Dr. Ahmadi s reading of Ms. Castaneda s subsequent MRI wherein Dr. Ahmadi interpreted that Ms. Castaneda s rotator cuff had completely healed. (C. Exh. 1 p. 71) In reaching this conclusion after having reviewed the Guides myself, I note that the Guides under some circumstances designate an impairment rating for some upper extremity surgeries. However, for the shoulder, surgical impairments are limited to either distal clavicle resection/

11 11 implant surgery or total shoulder resection/implant surgery. See Guides Table 27 p. 3/61. In the present case, Dr. Rudder did not perform either a distal clavicle resection or implant or a total shoulder resection or implant. (C. Exh. 1 p. 39) Ms. Castaneda has some documented deficiencies in active range of motion in her shoulder, and shoulder range of motion deficiencies can support a rating under the Guides in Section 3.1j p However, in the present case, I note that Ms. Castaneda s active range of motion results were reported to be inconsistent with her passive range of motion results; I note that she engaged in muscle guarding when awake and undergoing passive range of motion testing, and I note that Dr. Rudder achieved a full range of passive motion after releasing adhesions when Ms. Castaneda was under anesthesia on January 18, (C. Exh. 1 p. 62, 68) Because Dr. Rudder was able to achieve full anatomical range of motion under anesthesia, and Dr. Ahmadi documented a discrepancy between his passive and active range of motion test results and muscle guarding on passive testing, I rely in the present case on Dr. Rudder s opinion that Ms. Castaneda has no impairment. Because I find credible the conclusion of Ms. Castaneda s surgeon that she has no impairment, her request for an independent medical evaluation to determine her impairment is respectfully denied.

12 12 With regard to Ms. Castaneda s claim for permanent wage loss benefits, I note that a compensable anatomical impairment is a prerequisite to any award of wage loss benefits under Arkansas Code Annotated section , except in cases of permanent total disability. See Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000); Rutherford v. Mid-Delta Community Services, 102 Ark. App. 317, 285 S.W.3d 248 (2008). Because Ms. Castaneda has not filed a claim for permanent total disability, and has failed to establish that she has a compensable permanent anatomical impairment, her claim for permanent partial disability (wage loss) under Arkansas Code Annotated section must be denied in its entirety. Because Ms. Castaneda has failed to establish that she will be entitled to any type of permanent disability benefits, her claim for vocational rehabilitation must also be denied in its entirety. See Hampton & Crain v. Black, 34 Ark. App. 77, 806 S.W.2d 21 (1991); Tibbs v. Dixie Bearings, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1983). Issue 4: Benefits Pursuant To Ark. Code Ann (a). Arkansas Code Annotated section (a) provides: (a)(1) Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee s physical and mental limitations, upon order of the Workers Compensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wage lost

13 13 during the period of the refusal, for a period not exceeding one (1) year. (2) In determining the availability of employment, the continuance in business of the employer shall be considered, and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall control. Therefore, in order to prove entitlement to benefits pursuant to Ark. Code Ann (a)(1), the employee must establish (1) that she sustained a compensable injury; (2) that suitable employment within her physical and mental limitations was available with the employer; (3) that the employer refused to return the employee to work; and (4) that the employer's refusal to return the employee to work was without reasonable cause. Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996). The Arkansas Court of Appeals has interpreted that, at a minimum, Arkansas Code Annotated section (a) and related statutes require that when an employee who has suffered a compensable injury attempts to re-enter the work force, the employer must attempt to facilitate the re-entry into the work force, including offering additional training or reclassification of jobs if necessary. Id. In the present case, I find for the following reasons that the claimant has established by a preponderance of the evidence each of the requirements necessary to establish that she is entitled to an award of benefits under Arkansas

14 14 Code Annotated section (a) beginning on May 19, 2016, and continuing through May 18, A. Compensable Injury The parties stipulated that Ms. Castaneda sustained a compensable shoulder injury. (Comm. Exh. 1 p. 2) B. Suitable Employment Available With The Employer The parties stipulated that National Park Community College terminated Ms. Castaneda on April 1, (Comm. Exh. 1 p. 2) There is no dispute that Ms. Castaneda remained within her healing period at that time since she was paid temporary total disability compensation until Dr. Rudder released her to return to work at maximum medical improvement on May 18, 2016, approximately six weeks after her termination. (Comm. Exh. 1 p. 2; R. Exh. 1 p. 9) At the point that Ms. Castaneda was released to normal work duties on May 18, 2016, she could have returned to her contracted job as an instructor s aide through the remainder of the school year but for three things: (1) the respondents terminating Ms. Castaneda while she was off work on April 1, 2016, due to her work-related injury; (2) the respondents immediately replacing Ms. Castaneda with an hourly employee in April of 2016, and (3) the community college having a policy of not returning people to work who have already been terminated. (T. 60) Therefore, because Ms. Castaneda s work load at the community college still existed and her contract period would not yet have expired when she

15 15 was released to work on May 18, 2016, I find that she has established by a preponderance of the evidence that suitable employment existed with the employer when she was released to work. In addition, I note that after Ms. Castaneda was replaced with an hourly employee in April of 2016, and when one of the instructors died during the school year, an hourly employee was again hired in the school year as an assistant in the same Technology Center program where Ms. Castaneda was employed as an assistant until April 1, (T. 108) Since this appears to be the same type of administrative work that Ms. Castaneda had been performing prior to her injury, and since she was released to return to work normal duties in May of 2016, I find that suitable employment within Ms. Castaneda s physical and mental limitations was therefore available with the community college through the end of the school year and then became available again during the course of the school year as well. C. Employer Refused To Return Employee To Work In the present case, there is no dispute that the employer refused to return the employee to work since there is undisputed evidence and a stipulation that the community college terminated Ms. Castaneda s employment contract while she was still off work drawing temporary disability compensation. A unilateral termination of employment by the

16 16 employer has been treated by the Commission in several cases as a refusal to return the employee to work within the meaning of Section 505(a). See Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002)[awarding Section 505(a) benefits to terminated logger]; Christie Dawn Jennings v. Arkansas Department of Correction, Full Workers Compensation Commission, Opinion filed October 25, 2016 (G504734) [awarding Section 505(a) benefits to correctional officer terminated during the healing period]; Gerald Ward v. Stribling Packaging & Display, Full Workers Compensation Commission, Opinion filed October 8, 2007 (F604955)[awarding Section 505(a) benefits to terminated production worker]; Ricky Ditto v. Frit Industries, Full Workers Compensation Commission, Opinion filed June 19, 1998 (E603087)[awarding Section 505(a) benefits to temporary employee laid off without reasonable cause]. In finding that the community college refused to return Ms. Castaneda to work for purposes of Section 505(a) by terminating her employment contract on April 1, 2016, I recognize that Ms. Castaneda was not at that time capable of returning to work, and I recognize that Ms. Castaneda never again contacted the community college looking for work after she was terminated by the community college. (T. 41) I also recognize that Ms. Brewer was not aware when it was Ms. Castaneda had in fact been released by Dr. Rudder to return to work until one week before the 2017 hearing. (T. 61)

17 17 Nevertheless, it was the employer who had unilaterally terminated the employment contract before Ms. Castaneda had an opportunity to request additional employment. Conversely, according to the program director at the time, Jason Hudnell, he and Ms. Castaneda had conversed on several occasions while she was off work (i.e., before her termination), and on each occasion Ms. Castaneda was apologetic and indicated that she wanted to be back at work but had not received a return date yet. (T. 103) Finally, this examiner sees no credible evidence in the record that anyone at National Park Community College, Ms. Brewer or otherwise, had any interest whatsoever in Ms. Castaneda s work status after the community college terminated her employment contract on April 1, In this regard, Ms. Brewer testified that the community college does not typically call people to return to work that have already been terminated. (T. 60) With regard to Ms. Castaneda specifically, when asked whether anyone at the college offered to return her to work after her release to return to work on May 18, 2016, Ms. Brewer responded She was no longer employed with the college at that time. (T. 60) I find that Ms. Brewer s quoted testimony supports only one reasonable conclusion: the employer s refusal to return Ms. Castaneda to work within the meaning of Arkansas Code Annotated section (a).

18 18 D. The Employer's Refusal To Return The Employee To Work Was Without Reasonable Cause. I also find for the following reasons that Ms. Castaneda s termination was without reasonable cause. To the extent that Ms. Brewer s in evidence and her hearing testimony both make reference to Dr. Rudder releasing Ms. Castaneda to work on March 15, 2016 in FMLA paperwork, I note that the respondents have produced no such paperwork. However, even if Dr. Rudder did at one time project a return to work on March 15, 2016, there is currently no dispute that Ms. Brewer later investigated, and Ms. Brewer knew or should have known when she terminated Ms. Castaneda on April 1, 2016, that Ms. Castaneda was still in temporary disability status with the Public Employee Claims and not returned to work by Dr. Rudder. (T. 57, 72-73) Alternatively, Ms. Brewer testified that Ms. Castaneda s termination was instead caused by her FMLA running out. However, I note that the Full Commission has also recently found that an injured State employee not having FMLA protection is not reasonable cause within the meaning of Arkansas Code Annotated section (a) for an Arkansas State agency terminating the injured workers employment and therefore not returning the employee to work. Christie Dawn Jennings v. Arkansas Department of Correction, Full Workers Compensation Commission, Opinion filed October 25, 2016 (G504734) citing Allen v. International Paper Co.,

19 19 89 Ark. App. 266, 202 S.W.3d 20 (2005). Notably, the Full Commission in Jennings explained that an employer is not allowed to implement a policy which circumvents the employer s obligations pursuant to (a)(1). Id. at 12. Finally, Ms. Brewer and Mr. Hudnell both testified that it became critical to hire an employee to perform Ms. Castaneda s job in April and May of (T , ) Ms. Brewer testified that the community college considered it critical to take the funds it was using to pay for Ms. Castaneda s benefits and use that money to pay someone to do Ms. Castaneda s work. (T. 74) The community college fired Ms. Castaneda and sent her a bill for $ to recover insurance premiums that the community college had paid on Ms. Castaneda s behalf. (R. Exh. 2 p. 7) As quoted above from Section 505(a)(2), in determining the availability of employment, the continuance in business of the employer must be considered, and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall control. In the present case, there is no evidence that Ms. Castaneda was terminated and replaced by an hourly employee based on either seniority or pursuant to the provisions of any collective bargaining agreement. In addition, if the community college was entitled to recoup from Ms. Castaneda

20 20 the $ in insurance premiums that it had paid on her behalf, and desired to do so in order to pay the wages of a temporary hourly replacement employee, the respondents have offered no explanation, reasonable or otherwise, why the community college could not have sent Ms. Castaneda a bill for the $ without also firing her. In any event, I find that terminating an injured worker for the purpose of raising cash to pay a replacement employee is an impermissible policy intended to circumvent the employer s obligations pursuant to Arkansas Code Annotated section (a)(1). For all of the reasons discussed herein, I find that National Park Community College did not have reasonable cause for terminating Ms. Castaneda s employment contract on April 1, In Torrey v. City of Hot Springs, 55 Ark. App. 226, 934 S.W.2d 237 (1996), the employer argued that the employer filled vacant positions with candidates more qualified than the injured worker, and the Commission accepted that argument - thus limiting liability under Section 505(a) on the reasoning that once a position is filled, there is no longer suitable employment available. To the extent that National Park Community College may feel that they should likewise have no liability because Ms. Castaneda was fired and replaced by an hourly employee before she was released to return to work, I note that the Court rejected the

21 21 employer s argument in Torrey, and stated instead that the better rule is that the period of refusal lasts as long as the employer is doing business not to exceed the one year limit for payment of additional benefits. Id. at 231. In the present case, Mr. Hudnell testified that National Park Community College continues to operate today under the name National Park College. (T ) The employer s stated reasons for terminating Ms. Castaneda appear unreasonable in all respects, and the employer has failed to present any mitigating circumstances that might justify applying anything less than the one year maximum identified as the better rule by the Court in Torrey. Since the claimant could not begin losing wages following her termination until she was released to return to work on May 18, 2016, I find that the respondent-employer shall be liable to pay to the claimant the difference between benefits received and average weekly wages lost beginning on May 19, 2016, and continuing through May 18, Accord Christie Dawn Jennings v. Arkansas Department of Correction, Full Workers Compensation Commission, Opinion filed October 25, 2016 (G504734)[starting one year of benefits on the day after full duty release by doctor rather than on the day after earlier termination by employer during the employee s healing period]. Issue 5: Offset For Unemployment Benefits

22 22 The respondents seek an offset against liability for unemployment benefits that the claimant received after her termination. Arkansas Code Annotated section (a) provides with regard to unemployment benefits: (a) Any other provisions of this chapter to the contrary notwithstanding, no compensation in any amount for temporary total, temporary partial, or permanent total disability shall be payable to an injured employee with respect to any week for which the injured employee receives unemployment insurance benefits under the Department of Workforce Services Law, et seq., or the unemployment insurance law of any other state. This statute lists only (1) temporary total disability, (2) temporary partial disability, and (3) permanent total disability, as the classes of benefits against which an offset is provided for receipt of unemployment insurance benefits. The overriding purpose of an offset statute is to prevent double recovery. Bowmaster v. City of Jacksonville, 2016 Ark. App. 572, S.W.3d. Nevertheless, the provisions of the Arkansas Workers Compensation Law are to be strictly construed. Id. Strict construction requires use of the plain meaning of the language used, and strict construction requires that nothing be taken as intended that is not clearly expressed. Id. In Davis v. Dillmeir Enterprises, Inc. 330 Ark. 545, 956 S.W.2d 155 (1997), the Arkansas Supreme Court described the benefits provided for in Arkansas Code Annotated section (a)(1) as follows:

23 23 We construe the plain language of that provision as providing benefits in addition to those workers' compensation benefits already being received by the claimant. Such construction is evident, as the statute provides to the injured employee the difference between the compensation benefits being received and the average weekly wages lost during the period of refusal. Clearly, the combination of compensation benefits and additional benefits are designed to pay the employee a total amount equal to his or her average salary, thus making the employee whole. Because benefits awarded under section 505(a) are their own class of benefits intended to make the employee whole, and payable in addition to compensation benefits, I find that benefits payable under Arkansas Code Annotated section (a) are neither compensation for temporary total disability, nor compensation for temporary partial disability nor compensation for permanent total disability within the meaning of Arkansas Code Annotated section (a). Because I conclude that benefits awarded herein under Section 505(a) are not one of the categories of compensation listed in Section 506(a), I find that the respondents request in this case for an offset against an award of Section 505(a) benefits based on any unemployment benefits that Ms. Castaneda has received during the period of the one-year award must be denied for lack of statutory authority to award. AWARD The respondents are directed to pay benefits in accordance with the findings set forth herein. All accrued

24 24 sums shall be paid in a lump sum without discount and this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann , and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995), and Burlington Industries, et al v. Pickett, 64 Ark. App 67, 983 S.W.2d 126 (1998); reversed on other grounds 336 Ark. 515, 988 S.W.2d 3 (1999). The claimant s attorney is entitled to a 25% attorney s fee on the indemnity benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondents in accordance with Ark. Code Ann and Death & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). The respondents are directed to pay the court reporter s fees and expenses within thirty (30) days of billing. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge