dissenting. Appellant, Calvin Dooley, was awarded benefits for injuries he sustained to his back while working for appellee, Automated Conveyor Systems, Inc. He challenges the Arkansas Workers’ Compensation Commission’s conclusion that the offset provisions of Arkansas Code Annotated section 11-9-411 (Repl. 2002) apply to group health plan benefits regardless of whether the premiums are paid by the employer or the employee. I agree that to allow an offset for group health or disability benefits contributed to by the employee is, in effect, contributing to the cost of workers’ compensation benefits in violation of section 11-9-109. Appellant also asserts that the Commission erred in concluding that the statute is constitutional as applied in allowing an employer and its workers’ compensation carrier to claim an offset for group health plan benefits contributed to by the claimant employee. I agree and would reverse.
Arkansas Code Annotated section 11-9-411 (Repl. 2002) was amended in 1993. Prior to the amendment:
As a general rule, there is ordinarily no reduction of compensation benefits because of payments made from private pensions or health and accident insurance, whether provided by the employer, union, or the claimant himself. However, the employer may be entitled to a setoff where the employer clearly establishes that (1) the claimant has received payments from insurance provided by the employer, and (2) sums paid to the injured employee were intended as advance payments of compensation. See Varnell v. Union Carbide, 29 Ark.App. 185, 779 S.W.2d 543 (1989). Only where the employer clearly establishes that sums paid to an injured employee are advance payments of compensation is the employer entitled to any setoff; in all other situations, the employee recovers the full amount of his disability benefits provided under the Workers’ Compensation Act. Varnell v. Union Carbide, supra.
In Emerson Electric v. Cargile, 5 Ark. App. 123, 633 S.W.2d 389 (1982), we concluded that: [Wjhere the insurance, whether private or company administered, is provided and funded by the employer the rule announced in Southwestern Bell Telephone Company [v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966)] should be foEowed and the employer afforded the right to show, if he can, that the payments were ‘payments of compensation in advance.’
Riverside Furniture Co. v. Loyd, 42 Ark. App. 1, 4-5, 852 S.W.2d 147, 149-50 (1993).
The majority dismisses the entire reasoning of these cases because they predate the 1993 amendment. The cases, however, analyzed the availability of setoff in the context of what is now section 11-9-807. The legislature did not change the provisions of that statute in the 1993 comprehensive revision of the workers’ compensation laws. With the exception of pronoun usage, at the time of those cases through today, the section provides:
(a) If the employer has made advance payments for compensation, the employer shaE be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
(b) If the injured employee receives fuE wages during disabihty, he or she shaE not be entitled to compensation during the period.
Ark. Code Ann. § 11-9-807 (Repl. 2002).
In Emerson, supra, this court addressed for the first time whether benefits from private insurance could be setoff pursuant to the workers’ compensation statutes. After citing the previous statutory citation of Arkansas Code Annotated section 11-9-807, Ark. Stat. Ann. § 81-1319(m) (Repl. 1976), the court reasoned:
No cases have been cited to us in which our court has addressed the question of whether or not benefits paid under private insurance may be considered advance payments for compensation. We conclude that the sounder rules to apply are that where the insurance, whether private or company administered, is provided and funded by the employer the rule announced in Southwestern Bell Telephone Company, supra, should be foEowed and the employer afforded the right to show, if he can, that the payments were “payments of compensation in advance.” But where, as here, the employer does no more than to make the group coverage available at the employee’s sole expense, no setoff should be aEowed. Since the poHcy of insurance issued to the employee at his sole expense is a matter of private contract it could not affect the rights of the injured employee to recover under the compensation law or be considered as payments of compensation in advance. Under our statute only compensation paid in advance may be setoff against an award. Southwestern Bell Telephone Co. v. Siegler, supra. We conclude that private insurance procured by the employee does not come within that provision of our statute.
Emerson Elec. v. Cargile, 5 Ark. App. at 126, 633 S.W.2d at 390. The focus of the court’s analysis was whether the employer intended the private insurance to be advanced payments for compensation. If the employer did not intend for the benefits paid under private insurance to be advanced payments for compensation, then our statute does not allow setoff. The court in Emerson specifically concluded that private insurance procured by the employee does not come within that provision of our workers’ compensation statutes. Although the employee in Emerson paid the entire premium rather than a portion of the premium, the statutory prohibition against an employee providing funds “to pay any portion of the premium” for insurance required by our workers’ compensation law still applies.
Arkansas Code Annotated section 11-9-109 (Repl. 2002) provides that employers, not employees, are responsible for providing workers’ compensation coverage and that employers attempting to shift this burden to employees shall be guilty of a Class D felony. The majority concludes that there was neither an agreement by appellant to pay a portion of the workers’ compensation premium nor a deduction for that purpose from his paycheck. However, the effect of the majority’s decision is to reimburse the worker’s compensation carrier with money from private insurance obtained with premiums paid by the employee. The statute specifically prohibits any portion of the premium being paid by the employee.
If the majority’s position is that the employer intended for the employee to pay premiums for health care intended to advance payment for medical services required to be paid pursuant to the workers’ compensation statutes, then the employer is guilty of a Class D felony. If not, section 11-9-411 unconstitutionally limits the worker’s rights in law through contract. As the appellant points out, the workers’ compensation carrier has no rights to that third-party contractual obligation. Emerson, supra, and Moore v. Pulaski County Special Sch. Dist., 73 Ark. App. 366, 43 S.W.3d 204 (2001). Therefore, we should reverse.
Roaf, J., joins.