{"id":"alj-H108549-2025-07-07","awcc_number":"H108549","decision_date":"2025-07-07","opinion_type":"alj","claimant_name":"Jose Betancourt","employer_name":"Bhi Energy, Inc","title":"BETANCOURT DEL RIO VS. BHI ENERGY, INC. AWCC# H108549 July 07, 2025","outcome":"granted","outcome_keywords":["granted:9"],"injury_keywords":["back","lumbar"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/BETANCOURT_JOSE_H108549_20250707.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BETANCOURT_JOSE_H108549_20250707.pdf","text_length":14615,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H108549 \n \nJOSE BETANCOURT DEL RIO, Employee CLAIMANT \n \nBHI ENERGY, INC., Employer RESPONDENT \n \nSTARR INDEMNITY & LIABILITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 7, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  represented  by MICHAEL  E.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On June  16,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort \nSmith,  Arkansas.      A  pre-hearing  conference  was  conducted  on April  23,  2025,  and  a \npre-hearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.  The Arkansas Workers' Compensation Commission has jurisdiction of \nthe within claim. \n2. The  employee/employer/carrier  relationship  existed  among  the  parties  on \nSeptember 14, 2021. \n\nBetancourt – H108549 \n \n-2- \n3.  The  claimant  sustained  a  compensable  injury  to  his  back  on  September  14, \n2021. \n4. Prior Opinion of October 21, 2024, is final. \nThe issues to be litigated at the forthcoming hearing are as follows: \n1. Temporary total disability benefits from January 20, 2025, to a date yet to be \ndetermined.  \n2.  Respondents’  entitlement  to  a  credit  against  any  temporary  total  disability \nbenefits owed to claimant. \n3.  Payment  of  November  30,  2024,  emergency  room  visit  and  December  4, \n2024, visit to Siloam Springs Community Clinic. \n4. Attorney fee. \nAt  the  hearing  the  parties  agreed  to  stipulate  that  respondent  has  accepted \nliability for payment of the November 30, 2024, emergency room visit and the December \n4,  2024,  visit  to  Siloam  Springs  Community  Clinic.  The  parties  have  also  agreed  to \nstipulate that claimant is entitled to temporary total disability benefits beginning January \n28,  2025,  and  continuing  through  a  date  yet  to  be  determined.  Based  upon  the \nadditional  stipulations,  the  only  issues  remaining  to  be  litigated  are  respondent’s \nentitlement  to  apply  its  credit  against  any  temporary  total  disability  benefits  owed  to \nclaimant and an attorney fee. \nThe claimant contends: \n“The Claimant contends that the respondents do not have \nthe  right  to  recoup  an  overpayment  regarding  a  permanent \nimpairment  rating  by  withholding  payments  to  the  claimant \nthat  arise  out  of  temporary  total  disability.  The  claimant \ncontends  that  the  respondents  can  only  take  a  credit  for  an \n\nBetancourt – H108549 \n \n-3- \noverpayment against  the  same  type of benefits  that  created \nthe overpayment. \n \nThe  claimant  contends  that  his  attorney  is  entitled  to  an \nattorney’s fee in regard to temporary total disability benefits \narising out of the January 28, 2025 surgery.” \n \nThe respondents contend “a previous decision awarded compensability but no \nTTD. A credit was allowed for 6% to the body due to an overpaid PPD rating. No appeal \nwas filed by either party. The respondents authorized the surgery that was done on 1-\n28-25.  The  6%  credit  is  equivalent  to  20.28  weeks  of  benefits  at  the  TTD  rate.  The \ncredit will not be used up until 6-11-25. The ALJ decision states that the credit is for ‘any \nbenefits’ paid in excess of the 2% appropriate rating. TTD has not been controverted. \nNo  attorney  fees  are  due.  The  rating  for  a  third  surgery  at  the  same  level  is  1%.  It  is \nimpossible to take a 6% credit for a 1% PPD rating.”  \nFrom a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on April 23, 2025, and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n\nBetancourt – H108549 \n \n-4- \n 2. The parties’ stipulation that respondent has accepted liability for payment of \nthe  November  30,  2024,  emergency  room  visit  and  the  December  4,  2024,  visit  to \nSiloam Springs Community Clinic is also hereby accepted as fact. \n 3. The parties’ stipulation that claimant is entitled to temporary total disability \nbenefits  beginning  January  28,  2025,  and  continuing  through  a  date  yet  to  be \ndetermined is also hereby accepted as fact.  \n 4.  Respondent  is  entitled  to  apply  the  overpayment credit  awarded  in  the  prior \nopinion  filed  October  12,  2024,  against  payments  due  claimant  for  temporary  total \ndisability benefits beginning January 28, 2025. \n 5.  Respondent  has  controverted  claimant’s  entitlement  to  temporary  total \ndisability benefits arising from his surgery by Dr. Seale. \n \nFACTUAL BACKGROUND \n Claimant performed construction work for the respondent and has a history of a \nnon-work-related  back  problem  that  resulted  in  surgery  at  L5-S1  in  2014.  Claimant \npreviously  testified  that  after  approximately  a  year’s  recovery  he  returned  to  work \nperforming   his   regular   activities   which   included   heavy   lifting.   The   parties   have \npreviously stipulated that claimant suffered a compensable injury to his low back while \nworking  for  respondent  on  September  14,  2021.  After  some  conservative  treatment, \nclaimant  underwent  a  “revision  left  L5-S1  micro  decompression”  by  Dr.  Gannon \nRandolph in April 2022. \n After  the  surgery  by  Dr.  Randolph,  claimant  was  released  to  return  to  work \nwithout  restrictions  on  July  19,  2022,  and  at  some  point  thereafter  respondent  paid \n\nBetancourt – H108549 \n \n-5- \nclaimant  permanent  partial  disability  benefits  based  on  an  8%  rating  to  the  body  as  a \nwhole. \n Claimant previously testified that although he returned to work for respondent, he \ncontinued to have low back pain and changed jobs to work as an electrician which did \nnot  require  heavy  lifting.  Claimant  was  also  referred by  respondent to  Dr.  Jared  Seale \nwho recommended a fusion procedure for a recurrent disc protrusion at L5-S1. Claimant \nwas  also  evaluated  by  Dr.  Randolph  who  agreed  that  claimant  was  in  need  of  the \nproposed fusion procedure.  \n Respondent  did  not  accept  liability  for  the  proposed  procedure  and  as  a  result \nclaimant  filed  a  claim  contending  that  he  was  entitled  to  the  surgery.  Claimant  also \nrequested  payment  of  temporary  total  disability  benefits  and  respondent  raised  as  an \nissue the claimant’s correct impairment rating as a result of the September 14, 2021, \ninjury.  A  hearing  on  those  issues  was  conducted  on  October  2,  2024,  and  an  opinion \nwas filed on October 21, 2024, finding that claimant had met his burden of proving by a \npreponderance  of  the  evidence  that  he  was  entitled  to  the  recommended  surgery  and \nthat  at  that  time  claimant  was  not  entitled  to  payment  of  additional  temporary  total \ndisability benefits. As to the correct impairment rating, the following finding was made: \n4.  Claimant’s  impairment  rating  attributable  to  his \ncompensable  injury  equals  2%  to  the  body  as  a  whole. \nRespondent  is  entitled  to  a  credit for  permanent  partial \ndisability benefits paid in excess of that 2% rating. \n \n The award portion of the opinion contains the following: \nClaimant’s permanent physical impairment rating as a result \nof  his  compensable  injury  on  September  14,  2021,  is  2% \npursuant  to  the AMA  Guides.  Respondent  is  entitled  to  a \ncredit for any benefits paid in excess of this amount. \n\nBetancourt – H108549 \n \n-6- \n \n The parties have stipulated that the October 21, 2024, opinion is final. Since the \ntime  of  the  last  hearing,  claimant  underwent  the  recommended  surgical  procedure  by \nDr. Seale on January 28, 2025, and the parties have stipulated that claimant is entitled \nto temporary total disability benefits beginning on that date. The issue to be litigated is \nrespondent’s entitlement to apply its credit against the temporary total disability benefits \npayable to claimant.  \n \nADJUDICATION \n At  the  prior  hearing,  the  parties  stipulated  that  respondent  had  paid  claimant \npermanent  partial  disability  benefits  based  on  an  8%  rating  to  the  body  as  a  whole. \nRespondent  introduced  into  evidence  an  impairment  evaluation  summary  dated  June \n24,  2024,  from  Functional  Testing  Centers,  Inc.  which  assigned  claimant  an  8% \nimpairment  rating  to  the  body  as  whole  for  a  surgically  treated  disc  lesion  without \nresidual  signs  or  symptoms  pursuant  to  Table  75  of  the AMA  Guides,  4\nth\n Edition. \nHowever,  as  the  prior  opinion  noted,  the  claimant’s  surgery  in  April  2022  was  the \nsecond surgical procedure on his lumbar spine, not the first. Therefore, the claimant’s \nfirst surgical procedure in 2014 for a non-work-related condition would have resulted in \nan  8%  rating  with  the  second  procedure  in  2022  resulting  in  an  additional  2% \nimpairment pursuant to the AMA Guides. Based upon this evidence, this administrative \nlaw judge found that respondent was entitled to a credit for permanent partial disability \nbenefits  paid  in  excess  of  2%.  As  previously  noted,  the  parties  have  agreed  that  the \nprior opinion is final. \n\nBetancourt – H108549 \n \n-7- \n Although  respondent  acknowledges  that  claimant  is  entitled  to  temporary  total \ndisability benefits beginning on January 28, 2025, following another surgical procedure, \nrespondent  contends  that  it  is  entitled  to  apply  the  previously  awarded  credit  against \nthose benefits until the credit is exhausted. Claimant contends that since the credit was \nfor  overpayment  of  permanent  partial  disability  benefits,  not  temporary  total  disability \nbenefits, respondent is not entitled to apply the credit. \n I  find  that  respondent  is  entitled  to  apply  the  previously  awarded  credit  against \npayment of temporary total disability benefits until the credit is exhausted. Claimant has \ncited  no  authority  supporting  the  contention  that  a  credit  for  overpayment  can  only  be \napplied against the same type of indemnity benefits for which the credit was awarded.  \n Claimant   argues   that   allowing   respondent   to   take   a   credit   under   these \ncircumstances  would  permit  a  respondent  to  take  a  credit  against payment  of medical \nbenefits. However, these are not the same type of benefits. Medical benefits are paid to \na  third  party,  while  temporary  total  disability  and  permanent  partial  disability  are \nindemnity  benefits  payable  directly  to  a  claimant.  Furthermore,  respondent  is  not \nrequesting  a  credit  against  medical  benefits  payable  in  this  claim.  Instead,  it  is  only \nrequesting  application  of  the  credit  against  additional  indemnity  benefits  payable  to \nclaimant. \n Per  the  prior  opinion,  claimant  has  received  indemnity  benefits  over  and  above \nthat to which he was entitled under the Arkansas Workers’ Compensation law. As a \nresult,   respondent   was   awarded   a   credit   for   that   overpayment.   Although   the \noverpayment  was  for  permanent  partial  disability  benefits,  a  finding  that  respondent  is \nnot  entitled  to  apply  the  credit  against  payment  of  temporary  total  disability  benefits \n\nBetancourt – H108549 \n \n-8- \nwould  continue  to  allow  claimant  to  receive  indemnity  benefits  in  excess  of  those  to \nwhich he is entitled under the law. \n Accordingly, I find that respondent is entitled to apply its credit against temporary \ntotal disability benefits owed to claimant beginning on January 28, 2025, and continuing \nuntil the credit is exhausted or until claimant’s entitlement to temporary total disability \nbenefits ends, whichever occurs first.  \n Having found that respondent is entitled to apply its credit against temporary total \ndisability benefits owed to claimant, it is not necessary to discuss whether the payment \nof permanent partial disability was an advance payment of compensation. Respondent \nhas already proven that it’s entitled to the credit which was awarded in the opinion filed \nOctober 21, 2024. \n Finally,  by  controverting  claimant’s  entitlement  to  the  additional  medical \ntreatment  in  the  form  of  surgery  at  the  prior  hearing,  respondent  has  controverted \nclaimant’s entitlement to temporary  total  disability  benefits  arising  out  of  that  surgery \nbeginning  on  January  28,  2025.  Therefore,  claimant’s  attorney  is  entitled  a  fee  on \ntemporary total disability benefits as of January 28, 2025. \n \nAWARD/ORDER \n Respondent  is  entitled  to  apply  its  credit  against  temporary  total  disability \nbenefits  owed  to  claimant  beginning  January  28,  2025.  By  controverting  claimant’s \nentitlement  to  the  surgery,  respondent  has  controverted  payment  of  temporary  total \ndisability benefits attributable to that surgery. \n\nBetancourt – H108549 \n \n-9- \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll sums herein accrued are payable in a lump sum and without discount.  This \naward shall bear interest at the maximum legal rate until paid. \n Respondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $263.00 \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H108549 JOSE BETANCOURT DEL RIO, Employee CLAIMANT BHI ENERGY, INC., Employer RESPONDENT STARR INDEMNITY & LIABILITY CO., Carrier RESPONDENT OPINION FILED JULY 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County,...","fetched_at":"2026-05-19T22:38:16.992Z","links":{"html":"/opinions/alj-H108549-2025-07-07","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/BETANCOURT_JOSE_H108549_20250707.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}