dissenting. This case involves the interpretation of Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976), which reads as follows:
The first Fifty Thousand Dollars ($50,000) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier in the manner provided in this Act. [§§ 81-1301 — 81-1349]. An employee or dependent of an employee who receives a total of Fifty Thousand Dollars ($50,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this Act but all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable from the Death and Permanent Total Disability Bank Fund. [Emphasis added.]
Mr. Coy Hutson received an injury to his hip in July of 1977. After his healing period ended, he began receiving permanent total disability payments which continued for about two years at which time he died from complications of hip replacement surgery. His widow then began receiving death benefits. The issue before us is whether the Commission erred in allowing the appellee to credit the disability payments to Mr. Hutson on its obligation to pay death benefits to Mrs. Hutson thereby allowing it to combine the disability and death benefits in computing its $50,000.00 maximum liability under the above statute.'
In affirming the Commission’s decision, this court’s majority opinion, in my judgment, has failed to carefully consider what the law passed by the legislature provides and what the appellate courts of this state have held in previous cases involving similar questions. This failure has caused the majority to find a “clear” legislative intent with which I cannot agree.
In the first place, this court held in Sparks Regional Medical Center v. Death and Permanent Total Disability Bank Fund, 22 Ark. App. 204, 737 S.W.2d 463 (1987), that the above statute does not allow an employer to credit its temporary total disability payments against its statutory limit of $50,000.00 for permanent total disability. The employer argued the statute was ambiguous and its interpretation should prevail, but we did not agree.
Our decision in Sparks was in harmony with our decision in Hill v. CGR Medical Corp., 9 Ark. App. 334, 660 S.W.2d 171 (1983), where it was held that the Bank Fund did not have to make payments to the dependents of a deceased worker until the dependents had received the $50,000.00 provided in the statute even though an amount in excess of $50,000.00 had been recovered in the settlement of a tort suit and the employer’s liability for future death benefits had been settled by the employer’s waiver of its subrogation rights. We held that because the settlement proceeds were invested and would be paid to the dependents in installments, the Bank Fund’s liability to pay would not start until the dependents had actually received a total of $50,000.00. Our decision in Hill was affirmed by the Arkansas Supreme Court. See 282 Ark. 35, 665 S.W.2d 274 (1984).
And again, in J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990), we rejected an employer’s attempt to get credit on its maximum liability for permanent total disability in the amount paid for temporary total disability. The main argument was that we should reverse our decision in Sparks, supra. Although Sparks and Riggs were neither en banc decisions, the two opinions were approved by five of the six regular judges of this court. It is generally thought that an organized society should have some degree of predictability in the law by which it is governed and that the doctrine of stare decisis tends to aid that predictability.
In addition, it seems to me that a careful consideration of the statute itself would indicate the opposite result from that reached by the majority opinion. Looking at the statute as set out above, it very clearly contains the word “or” three times. The very first definition of that word in Webster’s New Collegiate Dictionary (1979) is “used as a function word to indicate an alternative,” and examples of the word’s usage are given as “coffee or tea,” and “sink or swim.” It is hard for me to believe that any member of the Arkansas General Assembly, when hearing the words “coffee or tea,” would think the inquiry was “do you want both coffee and tea.”
The statute set out above reads: “The first Fifty Thousand Dollars ($50,000) of weekly benefits for death or permanent total disability. . . Surely the General Assembly did not use the word “or” to mean “and.” If that was its intent, how about the next phrase “shall be paid by the employer or his insurance carrier. . . .’’Does the word “or” in this phrase mean “and”? Do we really think the General Assembly means both the employer and his insurance carrier shall pay the first $50,000.00? And in the second sentence of the statute we find, “An employee or dependent of an employee who receives. . . .” Does this “or” mean “and” also? I suggest it means just what it says “an employee or dependent of an employee who receives. . . .’’Thus, by reading the word “or” as it is written, in the dictionary meaning of the word, each time it is used in the above statute we give the word a reasonable and consistent meaning. To substitute “and” for “or” in any place in the statute results in absurd and inconsistent meanings and causes the statute to operate out of harmony with the previous decisions of the Arkansas Supreme Court and Court of Appeals.
There are other factors which suggest that the interpretation given by the majority opinion to the statute under consideration is in error. For example, Ark. Stat. Ann. § 81-1313(a) (Repl. 1976) authorizes an award for permanent total disability, and death benefits for dependents are authorized by Ark. Stat. Ann. § 81-1315 (Repl. 1976). These are entirely different sections and were different sections when Initiated Act No. 4 of 1948 was enacted. (That is the basic act still in effect. The sections of that act referred to above were sections 13 and 15.) The point I am attempting to make is that the original act clearly indicates that awards to an injured claimant are entirely separate from any benefits that may be awarded to a surviving dependent. In fact, Ark. Stat. Ann. § 81-1310(b) (Repl. 1976) specifically provides that “Compensation payable to the dependent of a deceased employee as above provided shall be in addition to funeral allowance and those benefits which were paid or to which the injured employee was entitled in his lifetime. . . .” Also, Ark. Stat. Ann. § 81-1321 (Repl. 1976) provides that “Money compensation to dependents of a deceased employee shall not constitute assets of the estate of the deceased employee and shall be payable to and for the benefit of the dependents alone.”
Surely it is incongruous to have an act which provides for disability for injured workers in one section of the act and for benefits to the dependent survivors of that employee in another section and which provides that compensation payable to the dependent of a deceased employee is in addition to the disability benefits paid to the injured employee and that the compensation paid to a dependent is for the benefit of the dependent alone, and to hold that the act also provides that disability payments may be credited against the liability for benefits due a dependent so that these separate payments can be added together to reach the employer’s $50,000.00 maximum liability.
For the reasons discussed above, I respectfully dissent.
Cracraft, J., joins in this dissent.