Fund v. Osborn
| Decision Date | 26 May 2011 |
| Docket Number | No. 10-1148,10-1148 |
| Parties | SECOND INJURY FUND, ANDERSON ENGINEERING, ONE BEACON INSURANCE, and TRANSPORTATION INSURANCE COMPANY, APPELLANTS v. CLEVELAND OSBORN, APPELLEE |
| Court | Arkansas Supreme Court |
APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION,
AFFIRMED; OPINION OF THE
The Second Injury Fund (the Fund) appeals the decision of the Arkansas Workers' Compensation Commission (the Commission) finding that the Fund was not entitled to a statutory offset for appellee's Veterans Administration (VA) benefits. On appeal, the Fund asserts that the Commission erred in its interpretation of Ark. Code Ann. § 11-9-411 (Repl. 2002). We have granted a petition for review in this case pursuant to Ark. Sup. Ct. R. 1-2(e), and we affirm.
The appellee in this case, Cleveland Osborn, born February 2, 1948, graduated from high school and earned a technical degree in Foundation Engineering. In 1967, he began serving in the United States Army and, in 1982, sustained an injury to his back. In 1984, he was medically discharged after receiving a thirty-percent disability rating from the VA. Osbornworked in Arizona for several years, and in 1992, returned to Arkansas and began working for Anderson Engineering, where he primarily performed steel inspections, concrete inspections, and picked up concrete and soil samples.
While working for Anderson on June 1, 2001, Osborn was injured when he fell into a nine-foot hole. He was diagnosed with contusions to the head and back and a compression fracture of the lumbar spine. Osborn received further injuries to his back on March 10, 2003, while he was moving thirty-pound concrete cylinders, and he was unable to return to work after March 11, 2003. Anderson's workers' compensation insurance provider denied the compensability of the March 10, 2003 injury. In addition, the Fund controverted Osborn's entitlement to permanent disability benefits in excess of thirty percent above the three percent anatomical impairment that Osborn was given stemming from the March 10, 2003 injury. The Fund also requested a credit, pursuant to Ark. Code Ann. § 11-9-411, for the $2,200 in VA benefits that Osborn receives each month.
In an opinion filed September 17, 2008, the administrative law judge found that O sborn was permanently and totally disabled and that the Fund was not entitled to a credit pursuant to Ark. Code Ann. § 11-9-411. The Fund appealed both of these findings. The Commission reversed the ALJ's finding that Osborn was permanently and totally disabled and instead awarded Osborn a fifty-percent wage-loss disability. However, the Commission affirmed the ALJ's finding that the Fund was not entitled to the credit. On appeal, the court of appeals affirmed the finding that Osborn was entitled to only a fifty-percent wage-lossdisability but reversed and remanded on the statutory offset issue, finding that the Commission's opinion lacked sufficient findings of fact to determine whether substantial evidence supported the decision to deny the offset. See Second Injury Fund v. Osborn, 2010 Ark. App. 120.
Upon remand, the Commission again found that the Fund was not entitled to a statutory offset for Osborn's VA benefits. The Commission found that under the plain meaning of the language in the statute, VA benefits were not included, and had the legislature intended to include VA benefits among those enumerated in Ark. Code Ann. § 11-9-411(a), it would have done so. The Commission also found that the VA benefits were not employer-based benefits but were instead based on Osborn's service-connected disabilities. One commissioner dissented from this decision, finding that Osborn was receiving a double recovery for his VA benefits and that the Fund was entitled to an offset. The Fund again appealed to the court of appeals, which affirmed the Commission's decision. See Second Injury Fund v. Osborn, 2010 Ark. App. 697. We subsequently granted the Fund's petition for review on April 14, 2011.
When we grant review of a decision by the court of appeals, we review the case as though the appeal had originally been filed in this court. Hudak-Lee v. Baxter County Reg'l Hosp., 2011 Ark. 31, ___ S.W.3d ___. This court reviews issues of statutory construction de novo, as it is for this court to decide what a statute means. MacSteel v. Ark. Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005). The first rule in considering the meaning and effect ofa statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. Id. When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. Although an agency's interpretation is highly persuasive, where the statute is not ambiguous, we will not interpret it to mean anything other than what it says. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).
On appeal, the Fund asserts that the Commission erred in finding that it was not entitled to a statutory offset, pursuant to Ark. Code Ann. § 11-9-411, for VA benefits received by appellee. Arkansas Code Annotated section 11-9-411, entitled "Effect of payment by other Insurers," provides in pertinent part:
(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.
On appeal, the Fund argues that the...
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