                                Cite as 2015 Ark. App. 141

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CV-14-803


                                                 Opinion Delivered   March 4, 2015
ANTHONY LEWIS
                              APPELLANT
                                                 APPEAL FROM THE ARKANSAS
V.                                               WORKERS’ COMPENSATION
                                                 COMMISSION [NO. G104513]

CALFRAC WELL SERVICES CORP.
                      APPELLEE                   AFFIRMED



                            M. MICHAEL KINARD, Judge

       Anthony Lewis appeals from an order of the Arkansas Workers’ Compensation

Commission allowing the appellee-employer a credit or setoff, against its obligation to pay

compensation benefits, in an amount equal to that which had previously been paid to

appellant under a separate group-disability policy paid for by appellee. He contends that the

Commission erred in its interpretation of Arkansas Code Annotated section 11-9-411 (Repl.

2012), the statute governing such setoffs. We affirm.

       Appellant suffered a compensable injury to his back on April 22, 2011, while

employed by appellee. The claim was accepted by appellee, and appellant was paid

temporary-total disability benefits, representing the time from May 17, 2011, through the

end of his healing period, August 3, 2012. Thereafter, consistent with the ten-percent

anatomical disability rating assigned by his surgeon, appellant was paid permanent-partial

disability benefits for the forty-five weeks between the end of his healing period and June
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24, 2013.1 Appellee controverted appellant’s claim to entitlement to wage-loss disability

benefits in excess of the impairment rating.

       On November 13, 2013, appellant first informed appellee that he had received

disability benefits from Sun Life Financial under a group-disability policy paid for by

appellee. Those benefits were separate from the workers’ compensation benefits and were

paid between May 24, 2011, and August 22, 2013. The Sun Life payments totaled over

$14,000. In light of the revelation about appellant’s receipt of the Sun Life benefits, appellee

sought a credit or setoff pursuant to Arkansas Code Annotated section 11-9-411 against any

remaining liability that it might have to appellant for workers’ compensation benefits. That

statute provides in pertinent part as follows:

       (a)(1) Any benefits payable to an injured worker under this chapter shall be reduced in
       an amount equal to, dollar-for-dollar, the amount of benefits the injured worker has
       previously received for the same medical services or period of disability, whether those
       benefits were paid under a group health care service plan of whatever form or nature,
       a group disability policy, a group loss of income policy, a group accident, health, or
       accident and health policy, a self-insured employee health or welfare benefit plan, or
       a group hospital or medical service contract.

       (2) The reduction specified in subdivision (a)(1) of this section does not apply to any
       benefit received from a group policy for disability if the injured worker has paid for
       the policy.

       (b) The claimant shall be required to disclose in a manner to be determined by the
       Workers’ Compensation Commission the identity, address, or phone number of any
       person or entity which has paid benefits described in this section in connection with
       any claim under this chapter.



       1
       That is, appellant was paid at his full or total compensation rate for ten percent of the
450 weeks of permanent-partial disability for which an employer is liable under Ark. Code
Ann. § 11-9-522(a) (Repl. 2012).

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(Emphasis added.)

       At a hearing before an administrative law judge (ALJ) on January 30, 2014, the parties

litigated appellant’s entitlement to wage-loss disability benefits and appellee’s entitlement to

a setoff in an amount equal to the payments that appellant had received under the Sun Life

disability policy. The ALJ determined that appellant qualified for a twenty-percent wage-loss

award above the anatomical impairment rating; according to appellant, those wage-loss

benefits would be paid at appellant’s total compensation rate for an additional ninety weeks,2

representing the time between June 25, 2013, and mid-March 2015. The ALJ also held that

appellee was not entitled to a setoff against its obligation to pay wage-loss benefits. The ALJ

reasoned that the amount that appellee was obligated to pay in wage-loss benefits related to

a different “period of disability” from that for which the Sun Life benefits had been paid and

that section 11-9-411(a) did not allow for a setoff under those circumstances.

       Appellee appealed the setoff portion of the ALJ’s order, and the Commission reversed.

The Commission pointed out that, under both the plain language of the statute itself and the

judicial opinions that have addressed it, the overriding purpose of section 11-9-411 is clearly

to prevent a double recovery by a claimant for the same period of disability.              The

Commission also noted that appellant had failed to disclose that he had received the Sun Life

benefits until mid-November 2013, which was after those benefits had ceased. The

Commission stated that it was undisputed that appellant had received disability benefits under

a Sun Life policy, provided by appellee, during the same period of time and for the same


       2
        See note 1, supra.

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disability that he received workers’ compensation disability payments from appellee.

According to the interpretation of the statute by appellant and the ALJ, the Commission

continued, “there is no plausible scenario by which a credit could ever be taken, especially

in situations such as this one, where the respondent is unaware that group disability benefits

are being paid concurrently with workers’ compensation benefits.” Holding that the ALJ’s

ruling had the effect of allowing a double recovery by appellant, the Commission reversed

that decision and allowed appellee to offset against its remaining obligation for workers’

compensation disability benefits an amount equal to that which appellant had received from

Sun Life.

       On appeal, appellant argues that section 11-9-411(a) does not allow for a credit or

setoff under the circumstances of this case. As noted previously, that section provides, “Any

[workers’ compensation] benefits payable to an injured worker . . . shall be reduced in an

amount equal to . . . the amount of benefits the injured worker has previously received [from

any of a variety of collateral sources] for the same . . . period of disability.” (Emphasis added.)

Appellant seems to argue that the Sun Life benefits had been paid to him during the

particular “period[s]” that he was receiving temporary-total disability benefits and

permanent-partial disability benefits for his anatomical impairment, but that the amounts that

remain payable by appellee cover a different period. In other words, appellant assumes that

“period of disability” as used in the statute is defined by the type of disability benefit that one

is then receiving; his argument is based upon the premise that he has undergone three distinct

periods of disability in this case—temporary disability, permanent impairment, and wage-loss.


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He argues that, because the Sun Life benefits were received while he was receiving

temporary-total and permanent impairment benefits, appellee cannot obtain the statutory

credit by reducing the wage-loss benefits because the latter relate to a different “period of

disability.”

       The question of the correct interpretation and application of a statute is a question of

law, which we decide de novo. St. Edward Mercy Medical Center v. Howard, 2012 Ark. App.

673, 424 S.W.3d 881. Arkansas Code Annotated section 11-9-704(c)(3) (Repl. 2012)

requires that we construe workers’ compensation statutes strictly. Strict construction requires

that nothing be taken as intended that is not clearly expressed. Davis v. Action Mechanical,

2012 Ark. App. 515. The basic rule of statutory construction is to give effect to the intent

of the legislature. Id. When a statute is clear, however, it is given its plain meaning, and the

appellate court will not search for legislative intent; rather, that intent must be gathered from

the plain meaning of the language used. Id. In that circumstance, we construe the statute

just as it reads, giving the words their ordinary and usually accepted meaning in common

language. Id.

       A statute is ambiguous where it is open to two or more constructions, or where it is

of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain

as to its meaning. Id. In interpreting an ambiguous statute and attempting to construe

legislative intent, we look to the language of the statute, the subject matter, the object to be

accomplished, the purpose to be served, the remedy provided, legislative history, and other

appropriate matters that throw light on the matter. Second Injury Fund v. Osborn, 2011 Ark.


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232; Arkansas Electric Co-op Corp. v. Death & Permanent Total Disability Trust Fund, 2012 Ark.

App. 13. Additionally, we recognize that the Workers’ Compensation Commission, as an

administrative agency, is better equipped by specialization, insight through experience, and

more flexible procedures than are courts to determine and analyze legal issues affecting its

agency. Arkansas Electric Co-op Corp., supra. In deciding what a statute means, the

interpretation of a statute by the agency charged with its execution is highly persuasive and,

while not binding on this court, will not be overturned unless it is clearly wrong. Brigman

v. City of West Memphis, 2013 Ark. App. 66; Arkansas Electric Co-op Corp., supra.

       “Disability” under our workers’ compensation act means “incapacity because of

compensable injury to earn, in the same or any other employment, the wages which the

employee was receiving at the time of the compensable injury.” Ark. Code Ann. § 11-9-

102(8) (Repl. 2012). Here, appellant suffered a work-related injury on April 22, 2011, and

became disabled as a result no later than May 17, 2011. He has been “disabled,” and has

been held entitled to and has received workers’ compensation disability benefits, since that

time. It is clear from this record that appellant has suffered only one period of disability;

there has been no cessation of it.3 Beginning after the onset of, and encompassed completely

within, the period of his workers’ compensation disability, appellant received additional



       3
        Clearly, one can suffer two disabilities on account of two separate injuries.
Moreover, one can recover from a disability and return to work, suffer a recurrence of the
original injury, and become disabled once again. E.g., McDonald Equipment Co. v. Turner,
26 Ark. App. 264, 766 S.W.2d 936 (1989). Under either of those circumstances, perhaps it
could be said that the injured worker has suffered multiple periods of disability. However,
those are not the facts here.

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benefits for his disability under the Sun Life policy for a portion of the same period, i.e., May

17, 2011, through August 22, 2013. Therefore, we conclude that the workers’ compensation

disability benefits payable to appellant under the order appealed from are plainly “benefits

payable to” appellant for the “same . . . period of disability” for which he previously received

benefits under the group policy issued by Sun Life. Since the Sun Life policy was provided

by appellee, the Commission correctly determined that appellee was entitled to a setoff in an

amount equal to those Sun Life benefits.

       Even if we were to find the phrase “period of disability” ambiguous, which we do

not, we would still reach the same result. Section 11-9-411 first appeared as part of Act 796

of 1993, a primary purpose of which was to return the Arkansas workers’ compensation

system to a state of economic viability. Ark. Code Ann. § 11-9-101(b) (Repl. 2012). We

have held that the overriding purpose of section 11-9-411 is to prevent a double recovery

by a claimant for the same period of disability. Brigman, supra; Henson v. General Electric, 99

Ark. App. 129, 257 S.W.3d 908 (2007). Appellant cites no authority and makes no

convincing argument in support of the strained definition that he would assign to the term.

He simply equates period of disability with the type or category of disability payment that one

is entitled to receive at any particular point in time. We disagree. As the Commission noted,

reading the phrase in question as appellant would have us do would not effectuate the

purpose of the statute but would run counter to it and actually allow an undeserved double

recovery in this case and many others.




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       Appellant also argues that appellee should not be allowed a setoff in the amount of the

Sun Life benefits because Sun Life has supposedly claimed a right to a potential refund of a

portion of what it paid appellant. He claims that Sun Life, pursuant to the policy issued by

that company, has threatened to seek to recoup what it had paid appellant, up to an amount

equal to what appellant might receive in Social Security disability benefits. However, the

record does not contain the Sun Life policy or any decision from the Social Security

Administration on any claim by appellant. While appellant maintained that he had applied

for Social Security disability and had received a favorable decision, even appellant admitted

that he had not yet received any award. Without more, neither the Commission nor this

court would be in a position to know whether appellant will receive Social Security benefits

or, if so, in what amount, much less whether Sun Life would attempt to recover what it had

paid or if it would be legally entitled to do so. Based on the record before us, we find no

merit in appellant’s argument.

       Affirmed.

       GLADWIN , C.J., and BROWN , J., agree.

       Gary Davis, for appellant.

       Mayton, Newkirk & Jones, by: Mike Stiles, for appellees.




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