Arkansas State Highway and Transp. Dept. v. Breshears

• Decision Date: 30 March 1981
• Docket Number: No. 80-320,80-320
• Citation: 272 Ark. 244,613 S.W.2d 392
• Parties: ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT, Self-Insured Employer, Petitioner, v. Johnnie M. BRESHEARS, Employee, Respondent.
• Court: Arkansas Supreme Court

Page 392

613 S.W.2d 392

272 Ark. 244

ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT Self-Insured Employer, Petitioner, v. Johnnie M. BRESHEARS, Employee, Respondent.

No. 80-320.

Supreme Court of Arkansas.

March 30, 1981.

Robert L. Wilson, Little Rock, for petitioner.

William C. Gilliam, Malvern, for respondent.

ADKISSON, Chief Justice.

Johnnie M. Breshears suffered an injury to his back while painting a ceiling for his employer, the Arkansas Highway Department. The Workers' Compensation Commission, in sustaining the administrative law judge, found temporary total disability from the date of the injury through the healing period. The Court of Appeals affirmed. Ark. Hwy. & Transp. Dep't v. Breshears, 271 Ark. 398, 609 S.W.2d 81 (Ark.App. 1980). We granted certiorari to review the legal basis of the Court of Appeals' decision in affirming the Commission.

The Court of Appeals relies upon Pyles v. Triple F. Feeds of Texas, 270 Ark. 729, 606 S.W.2d 146 (Ark.App. 1980) which incorrectly held that temporary total disability and the healing period were, in all cases, the same because, as the court stated: "While the wording of the act is not entirely clear, it seems more logical to ascribe to the Legislature an intent that an employee in Arkansas, suffering an unscheduled first injury, is to be paid compensation for the healing period as is done in case of a second injury or for a scheduled injury."

I

We hold that the term "disability" as defined below controls compensation awards in all cases of temporary disability except where compensation is statutorily based upon the "healing period." The Legislature specifically defines these terms in Ark.Stat.Ann. § 81-1302(e) and (f) (Repl. 1976):

(e) 'Disability' means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.

(f) 'Healing Period' means that period for healing of the injury resulting from the accident.

The term "disability" is then used in Ark.Stat.Ann. § 81-1313(a) (Repl. 1976) which controls this case:

(a) Total Disability. In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-six and two thirds per cent (662/3%) of his average weekly wage.

The term "healing period" is noticeably absent from this particular compensation provision although it appears in two other compensation subsections of § 81-1313: (c), providing for scheduled permanent injury compensation; and (f), providing for second injury compensation. See International Paper Co. v. McGoogan, 255 Ark. 1025, 504 S.W.2d 739 (1974), a scheduled injury case.

Temporary disability is determined by the extent to which a compensable injury has affected a claimant's ability to earn a livelihood based on medical evidence, age, education, experience, and other matters reasonably expected to affect the claimant's earning power. See Rooney & Travelers Insurance Co. v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978).

Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark.Stat.Ann. §§ 81-1302(e) and -1313(a). Whereas temporary partial disability is that period within the healing period in which the employee suffers only a decrease in his capacity to earn the wages he was receiving at the time of the injury. Ark.Stat.Ann. § 81-1302(e) and -1313(b).

II

There is substantial evidence of record to support the Commission's finding that the claimant suffered temporary total disability...