Second Injury Fund v. Osborn
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Cite as 2010 Ark. App. 697
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA 10-436
Opinion Delivered October 20, 2010
SECOND INJURY FUND
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[NOS. F107011 & F304582]
V.
CLEVELAND OSBORN
APPELLEE
AFFIRMED
COURTNEY HUDSON HENRY, Judge
Appellant Second Injury Fund (Fund) appeals the decision of the Arkansas Workers’
Compensation Commission holding that the Fund was not entitled to a credit for benefits it
pays to appellee Cleveland Osborn against the disability benefits Osborn receives from the
Veterans Administration (VA). For reversal, the Fund contends that the Commission erred
in ruling that VA benefits do not fall within the offset provision contained in Arkansas Code
Annotated section 11-9-411 (Supp. 2009). We affirm the Commission’s decision.
The record reflects that Osborn worked for Anderson Engineering Consulting from
1992 until 2003. He sustained work-related injuries to his low back, elbows, and neck on
June 1, 2001, when he fell into a deep hole. Osborn also suffered a compensable injury to his
back on March 10, 2003, while moving concrete cylinders. Prior to entering civilian
Cite as 2010 Ark. App. 697
employment, Osborn served in the United States Army from 1967 to 1984, when he was
medically discharged with a thirty-percent disability rating for injuries he received to his back
and neck. By 2003, the VA had increased his disability rating to fifty percent, and his rating
increased to 100 percent by 2007.
In an opinion dated June 10, 2009, the Commission found that Osborn was entitled
to a fifty-percent wage loss disability benefit as a result of his compensable injuries. The
Commission also determined that the Fund was not entitled to the statutory credit for benefits
Osborn received from the VA. Both Osborn and the Fund appealed the Commission’s
decision. Upon our review, we affirmed the Commission’s finding limiting Osborn’s wage
loss benefit to fifty percent, but we remanded to the Commission for it to make additional
findings on the credit issue. Second Injury Fund v. Osborn, 2010 Ark. App. 120.
Following our remand, the Commission entered an opinion denying the Fund’s claim
for the credit. Applying the rule of strict construction, the Commission determined that
Arkansas Code Annotated section 11-9-411(a) did not specifically mention VA benefits and
that the legislature could have included VA benefits had it intended to do so. In addition, the
Commission noted that VA benefits are not employer-based benefits but are rather serviceconnected benefits.
On appeal, the Fund argues that the Commission erred in its interpretation of the
statute. Section 11-9-411, which is entitled “Effect of payment by other insurers,” provides:
(a) 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
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Cite as 2010 Ark. App. 697
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 selfinsured employee health or welfare benefit plan, or a group hospital or medical
service contract.
The question of the correct interpretation and application of an Arkansas statute is a question
of law, which we decide de novo. Stewart v. Ark. Glass Container, 2010 Ark. 198, ___ S.W.3d
___. When we interpret workers’ compensation statutes, however, we must strictly construe
them. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008); Ark. Code Ann. § 11-9704(c)(3) (Repl. 2002). Strict construction is narrow construction and requires that nothing
be taken as intended that is not clearly expressed. Stewart, supra. The rule of strict construction
also requires us to use the plain meaning of the language employed. See Curt Bean Transp., Inc.
v. Hill, 2010 Ark. App. 312, ___ S.W.3d ___. We also note that the interpretation given a
statute by the agency charged with its administration is highly persuasive, and while not
conclusive, it should not be overturned unless it is clearly wrong. Death & Permanent Disability
Trust Fund v. Anderson, 83 Ark. App. 230, 125 S.W.3d 819 (2003).
We have commented that the overriding purpose of section 11-9-411 is to prevent a
claimant from receiving a double recovery for the same period of disability. Henson v. Gen.
Elec., 99 Ark. App. 129, 257 S.W.3d 908 (2007). In Henson, we affirmed the Commission’s
determination that disability retirement benefits came within the definition of “welfare benefit
plan,” as listed in the statute, because such benefits are received by virtue of injury and not
by meeting the minimum number of years for a normal retirement. We have also held that
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life insurance, death, or dependency benefits do not fall within the ambit of the statute.
Dollarway Sch. Dist. v. Lovelace, 90 Ark. App. 145, 204 S.W.3d 64 (2005).
Strictly construing the statute, we agree with the Commission that the Fund is not
entitled to a set-off for VA benefits. The statute allows subrogation for various types of
insurance-provided benefits for disability, but it does not include government-sponsored,
service-connected benefits received due to disability. Had the legislature intended a set-off for
such benefits, it could have expressed that intention in plain terms. Accordingly, we affirm
the Commission’s decision.
Affirmed.
A BRAMSON and B ROWN, JJ., agree.
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