                                   Cite as 2016 Ark. App. 572

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CV-16-173


JASON BOWMASTER                                   Opinion Delivered   November 30, 2016
                              APPELLANT

                                                  APPEAL FROM THE ARKANSAS
V.                                                WORKERS’ COMPENSATION
                                                  COMMISSION [NO. G202759]

CITY OF JACKSONVILLE,
ARKANSAS, ARKANSAS MUNICIPAL                      AFFIRMED IN PART; REVERSED
LEAGUE, and DEATH & PERMANENT                     AND REMANDED IN PART
TOTAL DISABILITY TRUST FUND
                      APPELLEES



                          PHILLIP T. WHITEAKER, Judge


       Appellant Jason Bowmaster appeals a decision of the Arkansas Workers’ Compensation

Commission (“Commission”), which concluded that he was not entitled to a permanent

impairment rating for dysphasia or for an alleged traumatic-brain or closed-head injury; that

he was entitled to a wage-loss disability rating of only 50 percent; and that the appellees

(collectively referred to as “the City”) were entitled to an offset for disability-retirement

benefits paid to him by the Arkansas Local Police and Fire Retirement System (“LOPFI

benefits”).   After considering the record before us, we reverse and remand as to the

Commission’s determination of Bowmaster’s impairment and wage-loss ratings and affirm as

to the offset of LOPFI benefits.
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                            I. Impairment and Wage-Loss Ratings

       The Commission, in its de novo review, reversed the decision of the Administrative

Law Judge (ALJ) and found that Bowmaster had failed to prove a brain injury or dysphasia and

set his impairment rating at 22 percent (2 percent for right femur, 3 percent for right knee,

8 percent for left knee, 6 percent for left shoulder, and 3 percent for pelvis). The Commission

further found that Bowmaster was entitled to a wage-loss benefit of 50 percent. Bowmaster

filed a timely notice of appeal from the Commission’s opinion, which is now before this

court. Bowmaster contends that the Commission exceeded its authority when it found that

he had not sustained a brain injury or dysphasia. He argues that only the degree of

impairment, not the existence of an injury, was in dispute. We agree. A review of the facts

and the procedural history is important to an understanding of our conclusion.

       On March 19, 2012, Bowmaster suffered multiple compensable injuries when he was

intentionally run over by a van while working as a firefighter for the City of Jacksonville.

The City initially accepted compensability and paid medical and temporary total-disability

benefits1 to Bowmaster. Bowmaster and the City were not able to reach an agreement on the

issues of permanent partial disability, permanent and total disability or wage loss, attorney’s

fees, and offset of benefits. These issues proceeded to a hearing before the ALJ.

       The ALJ issued two prehearing orders relating to the issues to be litigated between

Bowmaster and the City. In the first order, the ALJ listed the following stipulations of the

parties:

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       Temporary total-disability benefits were paid until the end of the healing period on
September 25, 2013.

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              The parties stipulated to an employee-employer-carrier relationship on March
       19, 2012, at which time the claimant sustained multiple compensable injuries at a
       compensable rate of $546.00/$410.00. Medical expenses, total temporary disability
       benefits until the end of the healing period. (September 25, 2013) and anatomical
       impairment totaling 22% (14% brain, 7% knee, 2% shoulder) have been accepted.

The order listed the issues to be litigated as “additional anatomical impairment (for the hip

and brain); permanent total disability or wage loss; attorney’s fees; offset of benefits, Ark.

Code Ann. § 11-9-411, and contempt.” In the second order, the ALJ once again designated

the issues to be litigated as “anatomical impairment (hip and brain); wage loss, controversions;

attorney’s fees; fund liability; and contempt; offset of LOPFI benefits.” The order directed

the parties to advise the Commission, in writing, of any corrections or additions within ten

days. Neither party did so.

       Bowmaster and the City proceeded to a hearing on the issues set forth in the two

prehearing orders. At the beginning of the hearing, the ALJ noted that the issues to be

resolved at the hearing were “anatomical impairment of the hip and brain, wage loss,

attorney’s fees, Fund liability, contempt and an offset of benefits.” Counsel for the City

agreed with the ALJ’s assessment. Concerning the anatomical impairment ratings, counsel for

Bowmaster, however, asked for some clarification of the issues, and the following colloquy

occurred:

              COUNSEL FOR BOWMASTER: No, Your Honor, I just wanted to make sure
       that we were clear on what ratings we are fighting over, I guess.

              ALJ: Okay.

              COUNSEL FOR BOWMASTER: The differences I see is the left shoulder with the
       6% from Rosenzweig, a 29% for the head injury. And then, let’s see, [the City]
       accepted 2% to the left shoulder, 14% to the head.

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              ALJ: Do you want to respond?

             COUNSEL FOR THE CITY: Your Honor, I think the second paragraph of the
       contentions set forth [our] contentions with respect to anatomical impairment.

(Emphasis added.)

       After the hearing, the ALJ found that, based on the evidence before it, Bowmaster was

entitled to a 49 percent impairment rating to the body as a whole, which included an

impairment of 29 percent for a closed-head injury and 10 percent for dysphasia. The ALJ

further found that, while Bowmaster had failed to prove that he was permanently and totally

disabled, he had proved wage loss of 70 percent. The City appealed the ALJ’s decision as it

pertained to “the claim of anatomical impairment” and “the extent of wage loss disability.”

Bowmaster cross-appealed the ALJ’s decision that he was not permanently and totally

disabled.

       From the record before us, the City accepted an anatomical impairment rating totaling

22 percent. Within this impairment rating, the City specifically accepted 14 percent as

relating to the brain. The ALJ then listed the 22 percent rating, including the 14 percent as

relating to the brain, as a stipulation of parties. At no point in its multiple prehearing

questionnaires did the City ever expressly dispute Bowmaster’s claim that he had suffered a

brain injury or dysphasia. Rather, the prehearing responses submitted by the City and the

uncontested issues listed in the prehearing orders filed by the ALJ indicate that the only

disagreement between the parties was the extent of those injuries and the additional

anatomical rating for permanent impairment, if any, that should be given. The ALJ stated in


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its remarks prior to the hearing and then in its written opinion that the issues to be resolved

related to whether Bowmaster had sustained additional anatomical impairment. At no time

did the City voice its disagreement with the scope of the issues to be presented at the hearing

or affirmatively represent to the ALJ that it was disputing the existence of the injury itself.

It is abundantly clear that the only issue before the Commission with regard to Bowmaster’s

brain injury and dysphasia was the amount of additional impairment, if any, to which he was

entitled.

       Arkansas Code Annotated section 11-9-711(b)(4)(A) (Repl. 2012) gives this court the

authority to reverse the Commission’s decision if the Commission acts without or in excess

of its powers. The Commission, by deciding an issue not in dispute and not properly before

it, acted in excess of its powers. Accordingly, we reverse and remand for the Commission to

assess what, if any, additional impairment rating should be assigned to those injuries.

Additionally, because the Commission’s wage-loss calculations were based, in part, on its

improper determination of Bowmaster’s permanent impairment rating, we remand to allow

the Commission to reexamine its findings based on a proper impairment-rating calculation.

                                     II. Offset of Benefits

       Both the ALJ and the Commission found for the City on the issue of whether it was

entitled to an offset for wage-loss benefits from LOPFI. The City’s entitlement to an offset

is a question of statutory interpretation and application. The question of the correct

interpretation and application of an Arkansas statute is a question of law, which we decide de

novo. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, 424 S.W.3d 881. It is for


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this court to decide what a statute means. Id. 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. Id. When

we construe the workers’ compensation statutes, we must strictly construe them. Id. Strict

construction is narrow construction and requires that nothing be taken as intended that is not

clearly expressed. Id. The doctrine of strict construction requires this court to use the plain

meaning of the language employed. Id.

       Bowmaster claims that the LOPFI benefit plan does not fall within the group of entities

listed in Arkansas Code Annotated section 11-9-411 and is therefore not governed by its offset

provisions. Arkansas Code Annotated section 11-9-411(a)(1) states that

       [a]ny 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.

       The overriding purpose of this section is to prevent a double recovery. Henson v.

General Electric, 99 Ark. App. 129, 257 S.W.3d 908 (2007). The list of entities subsequently

addressed by the statute in that subsection in no way limits the type of benefits for which the

offset is available. Rather, the provision indicates a legislative intent to prevent such a narrow

interpretation of the types of benefits to which the offset pertains. The only exception to this

general rule is found in subsection (a)(2) of the statute, which is not applicable here.




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       Moreover, our court has previously found that benefits payable to an employee

through LOPFI are subject to the offset provisions of the statute, see Brigman v. City of W.

Memphis, 2013 Ark. App. 66, and our legislature has not felt the need to amend the statute to

provide otherwise. “The General Assembly is presumed to be familiar with the appellate

courts’ interpretation of its statutes, and if it disagrees with those interpretations, it can amend

the statutes. Without such amendments, however, the appellate courts’ interpretations of the

statutes remain the law.” Miller v. Enders, 2013 Ark. 23, at 12, 425 S.W.3d 723, 730 (citing

McCutchen v. City of Fort Smith, 2012 Ark. 452, at 19, 425 S.W.3d 671, 683 (internal citations

omitted)).

       Based on the foregoing, we cannot find that the Commission’s interpretation of the

statute as it relates to Bowmaster’s LOPFI benefits was clearly wrong. Therefore, we affirm

on this issue.

       Affirmed in part; reversed and remanded in part.

       ABRAMSON and KINARD, JJ., agree.

       Martin Law Firm, by: Aaron L. Martin, for appellant.

       Katie Bodenhamer, for appellees.




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