dissenting. This is a case of first impression calling for the construction of an ambiguity in the Worker’s Compensation Act. We are required to construe the Act liberally in favor of recovery. The majority has refused to do so in order to reach an unnatural result.
I strenuously dissent from the prevailing decision in this case. It was stipulated that the appellant in the case at bar was performing two separate jobs, was simultaneously working for two employers, and receiving two separate paychecks, when he sustained his compensable injury.1 The manner in which the appellant’s disability benefits should be calculated is a question of first impression in Arkansas. The statute governing the computation of compensation, Ark. Code Ann. § 11-9-518 (1987), is ambiguous with respect to this question, providing only that compensation should be based on applicable wages under the contract in force at the time of the accident. It is undisputed that there were two contracts of hire in force at the time of the accident.
The prevailing opinion resolves this ambiguity, not by reference to Arkansas law, but instead by citation to Professor Larson’s treatise on Workmen’s Compensation. Without in any way denigrating this treatise, it must be noted that worker’s compensation is a creature of statute which is based on the legislative enactments of each individual state. It is therefore significant to note that the section of Professor Larson’s treatise cited by the prevailing opinion finds its authority in a single Rhode Island case, Lupo v. Nursery Originals, Inc., 400 A.2d 950 (R.I. 1979). In holding that joint employees could not recover benefits from each employer, the Lupo Court stated that a worker should not be permitted to “reap a financial bonanza” because of his employment situation, and that “to pay an injured worker more for not working than for working . . . would create a temptation to malinger.” Id. at 951, 952. In this context, it is important to note that there is no suggestion in the case at bar that the appellant will be paid more for not working than for working if allowed to fully recover from each employer. Instead, the construction advocated by the appellant would merely allow him to recover 66 2/3% of his wages from each employer; because he would not under that construction be subject to the maximum benefit cap in effect in 1990, he would receive an additional sum of $73.20 each week.
This sum, I submit, is hardly a “bonanza” for a disabled worker. Nevertheless, the prevailing opinion characterizes it as such in order to deny it to the appellant in this case. Certainly, the maximum benefit cap serves a useful purpose by making the potential liability for disability benefits predictable to employers and insurers. However, insofar as both employers and both insurers in this case could expect to be liable for compensable disability to an employee, it is they who reap the bonanza by the majority’s decision to limit the injured workers claim.
Given its ultimate reliance on a case which has never before been applied outside of Rhode Island, I think it is clear that the majority in the case at bar is reaching for a result favorable to employers. It should be observed that far from announcing a “basic premise” of worker’s compensation law, the Lupo Court itself noted that “[i]n many states a contrary result is dictated by the legislature.” Id. at 952, note 2. Clearly, Arkansas is such a state. As the prevailing opinion concedes, our statute is unclear concerning the method of calculating benefits under the circumstances of the case at bar. One method allows the worker $73.20 more than the other method, but does not require either employer to pay more than the cap. Under such circumstances, our legislature has expressly provided that we are to construe the provisions of the Act liberally in accordance with its remedial purpose. Ark. Code Ann. § ll-9-704(c)(5) (1987); see generally Mecco Seed Co. v. London, 42 Ark. App. 121, 886 S.W.2d 882 (1994). The prevailing opinion has not only failed to construe the Act liberally in favor of recovery, it has in addition granted a windfall to employers and insurers by characterizing a $73.20 difference in compensation as a “bonanza” to the disabled worker.
Robbins and Mayfield, JJ., join in this dissent.
The prevailing opinion is simply wrong in asserting that the appellant’s employment responsibilities did not change between employers. In the first place, it must be emphasized that the parties stipulated that the appellant was a joint employee: therefore, detailed evidence regarding his employment duties was not necessary. In the second place, the record clearly indicates that the appellant’s duties differed with respect to his two employers. In his deposition (which is part of the record before us) the appellant testified as follows:
Q. And, what were your responsibilities and what is your job function in the city of Osceola?
A. Well, my job is that I’m a boiler operator for the City, and my job is to run the plant. And, with Recovery I was employed, when I got to be employed by Recovery, my job was running the plant and at the same time be the boss over the Recovery crew. I worked for both of them within eight hours period.
The prevailing opinion’s failure to recognize this evidence is, perhaps, part of the reason for the manifestly incorrect result it achieved.