Orren v. Smackover Nursing Home & Arkansas Guaranty Fund , 46 Ark. App. 38 ( 1994 )

John E. Jennings, Chief Judge.

On January 11, 1989, Carolyn Orren, an employee of Smackover Nursing Home, sustained a compensable injury to her back while lifting a patient. On April 17, 1989, Ms. Orren again hurt her back at work.

During the course of this litigation the employer’s workers’ compensation insurance carrier went bankrupt, and the Arkansas Guaranty Fund has entered an appearance for the purpose of paying benefits due to the claimant. In the meantime some of the claimant’s medical bills incurred as a result of the compensable injury have been paid by Blue Cross Blue Shield, her medical insurance carrier.

The primary issue in the case at bar is whether the Guaranty Fund must pay the claimant’s medical bills, notwithstanding that they have already been paid by Blue Cross Blue Shield. On this question the Commission said:

The initial issue in this case is whether A.C.A. § 23-90-117 applies in this case. That section states in pertinent part:

(a)(1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim, shall be required to exhaust first his right under the policy.

(2) Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under the insurance policy.

We agree with the Administrative Law Judge and find that a correct interpretation of the statute is that those amounts which claimant had previously received as payment for medical benefits by Blue Cross/Blue Shield, are not now to be repaid by the Guaranty Fund. Claimant on appeal argues that the statute has no application to workers’ compensation. We find no merit to that argument. First, the purpose of the Guaranty Act as set forth in A.C.A. § 23-90-102 is to provide funds to pay claims of insolvent insurers. Thus, the Fund is designed to protect individuals, not pay. double benefits. Claimant is asking the Guaranty Fund to pay her benefits. Although claimant contends that the section has no application to workers’ compensation, we note that she is asking the Guaranty Fund to pay her benefits. If claimant is going to receive benefits from the Guaranty Fund, then the provisions of the Guaranty Fund Act must apply. Further, with respect to this issue, we note that A.C.A. § 23-90-105 states that the Guaranty Fund Act is to be liberally construed to effect the purpose of the Act.

We agree with the Commission’s interpretation of Ark. Code Ann. § 23-90-117 and its holding that the Guaranty Fund is not responsible for paying medical bills previously paid by Blue Cross Blue Shield.

Appellant also argues that the disposition of the case at bar is governed by our decision in Owen Drilling Co. v. Allison, 33 Ark. App. 60, 800 S.W.2d 728 (1990). In Owen Drilling we held that neither the employer nor its insurance carrier was entitled to an offset for the amount paid toward medical expenses by a claimant’s private medical insurance carrier. Our opinion was based on case law and an analogy to the collateral source rule. We agree with the Commission that the case at bar is governed by statute, not the common law.

Appellant contends that the Commission erred in holding that she was not entitled to additional temporary total disability benefits beyond February 5, 1990. The Commission found that the claimant’s healing period ended on February 5, 1990, and this finding is not challenged on appeal. Clearly, temporary benefits may not be paid after the end of the healing period. Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987).

Affirmed.

Mayfield and Rogers, JJ., dissent.