concurring. I concur with the result reached in the majority opinion, but the reasoning in that opinion, considered with the reasoning in the two dissenting opinions in this case, compels me to suggest the need for a consistent rationale in our approach to the liability of the Death and Permanent Total Disability Trust Fund (sometimes referred to as the “Bank” Fund).
I start with the fact that this appeal grows out of the death of Dwight Robbins who died on August 27, 1979, .as the result of injuries sustained in a motor vehicle accident which occurred in the course and scope of his employment with Tyson Foods, Inc. The employer accepted the death as compensable and paid the appropriate medical and funeral expenses in accordance with the Arkansas Workers’ Compensation Law. Mr. Robbins was survived by a widow and two minor children. Tyson paid death benefits to these survivors until approximately December 8,1980, at which time the widow remarried. She was then paid a lump sum equal to 104 weeks of compensation; thereafter, maximum weekly benefits were paid for the benefit of the two children. When the total payments to the widow and children reached $50,000.00, Tyson requested that the appellant Fund assume liability for the payments to the minor children. The Fund’s refusal resulted in the presentation of this matter to the Commission.
As the law judge noted in his opinion, the law in effect on the date of Mr. Robbins’ fatal injuries, August 27,1979, is controlling in this case. We are primarily concerned with two sections of the Worker’s Compensation Law. Because the Arkansas Code Annotated (1987) does not set out all of the pertinent statutory provisions that were in force on August 27, 1979, the applicable provisions of the Arkansas Statutes Annotated will be cited in this discussion.
OnAugust27,1979, Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976) provided 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.
Also, on August 27, 1979, Ark. Stat. Ann. § 81-1315(d) (Repl. 1976) provided as follows:
In the event the widow remarries before full and complete payment to her of the benefits provided in Subsection (c), there shall be paid to her a lump sum equal to compensation for one hundred and four (104) weeks, subject to the limitation set out in Section 10 [§81-1310] of this Act.
The full Commission held that Tyson is entitled to take credit for the lump sum payment made to Robbins’ widow in calculating its statutory maximum liability of $50,000.00. Before discussing the basis of my agreement with the result of this court’s majority opinion affirming the full Commission’s decision, I want to look at the reasoning of Judge Wright’s dissenting opinion.
That dissent points out that the widow’s lump-sum payment upon remarriage was part of Initiated Act No. 4 of 1948. At that time the payment was equal to compensation for 52 weeks. See Ark. Stat. Ann. § 81-1315(d) (1960). Initiated Act 4 of 1948 reenacted and amended the original Workmen’s Compensation Law which was passed by the General Assembly in 1939 as Act 319. The passage of the original act was authorized by Amendment 26 to the Arkansas Constitution adopted at the general election held November 8,1938. Young v. G. L. Tarlton Contractor, Inc., 204 Ark. 283, 162 S.W.2d 477 (1942). See also the Compiler’s Note to Ark. Stat. Ann. § 81-1301 (Repl. 1960). This 1960 replacement volume of Arkansas Statutes Annotated gives us a good picture of the workers’ compensation act as adopted in 1948 and allows us to see how subsequent amendments fit into the 1948 act. Therefore, looking at Ark. Stat. Ann. §81-1310 (Repl. 1960), we see that section 10 of the 1948 act was divided into two parts: “(a) Disability” and “(b) Death.” Under (a) it was provided that compensation to an injured employee for disability would “in no case” exceed $12,500.00 in addition to the benefits allowed under section 11 (§81-1311) which provided for medical and hospital bills. Under (b) it was also provided that compensation “payable to the dependents for the death of an employee” would “in no case” exceed $12,500.00. (The information provided by the compiler, following the text of Ark. Stat. Ann. § 81-1310 (Repl. 1960) shows that the $12,500.00 in both paragraphs (a) and (b) came from Initiated Act No. 1 of 1956 which increased the former $8,000.00 limit.)
Initiated Act No. 1 of 1968 eliminated the maximum benefit provision for both permanent total disability and death benefits. The 1968 act accomplished this by raising the maximum benefits for the disability payments provided under paragraph (a) and for the death benefits under paragraph (b) to $19,500.00; however, the 1968 act also added paragraph (c) which provided that the $19,500.00 maximum would not apply in cases of permanent total disability or death. See Ark. Stat. Ann. §81-1310(c) (Supp. 1969). Later, a limitation on the total amount of those benefits was made by Act 221 of 1973. That act amended Ark. Stat. Ann. § 81-1310(c) by adding to the provisions of paragraph (c) a new provision which stated that the first $50,000.00 of weekly benefits for death or permanent total disability “shall be paid by the employer or his insurance carrier” and that all such benefits in excess thereof shall be paid by the Death and Permanent Total Disability Fund. See Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976). This is one of the two provisions of the Worker’s Compensation Law which were quoted above and identified as the two sections of the law in force on August 27, 1979, with which this case is concerned.
Against the background set out above, the Commission stated in its opinion that “the entire purpose of the statutory maximum [for death or permanent total disability] would be circumvented if this Commission were to interpret the statute to mean that the employer was not entitled to credit for the lump sum death benefits paid to a surviving spouse upon remarriage.” Against the same background, Judge Wright’s dissenting opinion reaches a different result by stating that since the widow’s lump-sum benefit provision was part of Initiated Act No. 4 of 1948, but was not mentioned when the employer’s maximum liability for death or permanent total disability benefits was limited by Act 221 of 1973, it must be assumed that the 1973 act was not intended to affect the widow’s lump-sum provision. At first blush, both views appear reasonable, but upon closer examination, taking the. entire picture into consideration, I think the result reached by the majority opinion is correct.
Neither the majority nor the dissenting opinions of this court are in disagreement with the Commission’s opinion as to the purpose of the provision limiting the maximum payment by the employer for death or permanent total disability. Judge Wright’s dissent, however, looks at paragraph (c)(2) of section 10 (Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976)), and states that it limits the employer’s liability “only” as to weekly benefits. That dissent then states, in the last paragraph, that the widow’s lump-sum payment is not a weekly benefit, citing Ashby v. Arkansas Vinegar Co., 22 Ark. App. 167, 737 S.W.2d 177 (1987), as authority.
In the first place, I think the dissent stopped short when it concluded that Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976) “places a maximum amount of ‘weekly benefits’ for death and permanent total disability for which an employer or his insurance carrier is liable.” What actually happened, as a matter of historical fact, is that Act 221 of 1973 amended paragraph (c) of section 10 of the worker’s compensation act by breaking it into two subdivisions: (1) which provided the total compensation prescribed in subsection (a) of section 10 shall not apply in cases of permanent total disability or death, and (2) which provided for a $50,000.00 maximum to be paid by the employer or his carrier for death or permanent total disability benefits. However, as pointed out above, long before paragraph (c) was added to section 10 by Initiated Act No. 1 of 1968, section 10 had only two paragraphs: (a) which contained a provision limiting the total amount to be paid for disability benefits, and (b) which contained a provision limiting the total amount to be paid for death benefits. Then, when Initiated Act 1 of 1968 eliminated the total amount to be paid for permanent total disability or death benefits, Act 221 of 1973 was enacted which placed a limit upon the total amount for which the employer or his carrier would be liable for (1) permanent total disability or (2) death benefits. Thus, Judge Wright’s dissent in stating that Ark. Stat. Ann. § 81-1310(c) (2) (Repl. 1976) limits liability for “the maximum amount of ‘weekly benefits’ for total and permanent total disability” fails to discuss the purpose of the limitation which is to limit the maximum amount to be paid by the employer for those named benefits. The term “weekly benefits” describes the amount and manner in which the designated benefits are to be paid, but the issue presented in this case requires us to determine the purpose for limiting the employer’s liability as to the total amount of those weekly benefits.
In the second place, I think the reliance by both dissenting opinions upon Ashby, supra, is misplaced. As the majority opinion points out, Ashby did not address the issue of whether an employer should be given credit for the widow’s lump-sum payment for the purpose of calculating its maximum liability. In regard to weekly benefits, our Ashby opinion held:
Upon remarriage, those payments terminate, and upon termination of those payments the minor beneficiaries’ increased benefits should become due and payable immediately.
22 Ark. App. at 170. The Arkansas Supreme Court affirmed our decision in Ashby, see Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988), using a different rationale. However, under the reasoning of either court, the Ashby decision does not negate the rationale of the majority opinion in this case which in essence holds that the widow’s lump-sum payment is a death benefit for which the employer should be given credit for the purpose of calculating its maximum liability under Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976).
Thus, I concur with the result reached by the majority opinion. I do not agree, however, with the majority opinion insofar as it indicates approval of the opinion in Death & Permanent Total Disability Trust Fund v. Hempstead County, 32 Ark. App. 36, 796 S.W.2d 351 (1990), which stated:
We believe this language makes it clear that the intent of the legislature in passing Act 221 of 1973, was to place an overall limit on the weekly benefits payable by the employer or his carrier to $50,000, whether the benefits were for death or permanent total disability or both.
See 32 Ark. App. at 39. As I have tried to explain in this opinion, the purpose of Act 221 of 1973 was to limit the employer’s maximum liability in two different situations: (1) as to the total amount of the weekly payments for permanent total disability, and (2) as to the total amount of the weekly payments for death, but I find nothing to indicate that the legislature intended to allow the employer to add together the amounts paid on both the permanent total disability and the death benefits in calculating his maximum amount of liability. Moreover, as explained in my dissent in the Hempstead County Case, I believe the language in Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976), clearly shows that the majority opinion in that case reached the wrong result.
I concur in affirming the decision of the Commission.