{
  "id": 6137666,
  "name": "Candelario M. SIERRA v. GRIFFIN GIN, AG-Comp SIF Claims",
  "name_abbreviation": "Sierra v. Griffin Gin",
  "decision_date": "2007-10-10",
  "docket_number": "CA 07-152",
  "first_page": "113",
  "last_page": "117",
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          "parenthetical": "stating that while the employer contended that payment of benefits would exceed her annual income, the limited amount of time employee had been employed made any projection of her expected income necessarily speculative"
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        {
          "parenthetical": "stating that while the employer contended that payment of benefits would exceed her annual income, the limited amount of time employee had been employed made any projection of her expected income necessarily speculative"
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  "last_updated": "2023-07-14T22:52:18.034517+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Pittman, C.J., and Robbins, Glover, Baker, and Miller, JJ., agree."
    ],
    "parties": [
      "Candelario M. SIERRA v. GRIFFIN GIN, AG-Comp SIF Claims"
    ],
    "opinions": [
      {
        "text": "Josephine Linker Hart, Judge.\nAppellant, the employee J claimant, contends that the Arkansas Workers\u2019 Compensation Commission erred in its calculation of his average weekly wage as the basis for compensation. Additionally, appellant, who appeared pro se before the administrative law judge (ALJ), asserts that because the parties never raised the issue of attorney\u2019s fees, the Commission should have vacated rather than reversed the ALJ\u2019s award of attorney\u2019s fees for appellant. We reverse and remand on the first point and affirm the latter.\nThis claim was heard on the stipulated facts that an employer-employee-carrier relationship existed on October 3, 2005, when appellant sustained compensable injuries in a fall at work. Further, the parties stipulated that appellant\u2019s job with the cotton gin was \u201cseasonal employment\u201d and that at the time of his injury, appellant was earning $1020 per week for nine weeks of work.\nThe statute governing calculation of weekly wages as a basis for compensation provides in part that \u201c[compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.\u201d Ark. Code Ann. \u00a7 ll-9~518(a)(l) (Repl. 2002). The statute, however, provides further that \u201c[i]f, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.\u201d Ark. Code Ann. \u00a7 ll-9-518(c).\nIn determining appellant\u2019s average weekly wage, the ALJ awarded a weekly compensation rate in the amount of $466. The ALJ arrived at this amount by multiplying appellant\u2019s stipulated weekly wage of $1020, which the ALJ determined was appellant\u2019s average weekly wage, by 66 2/3%, for a total of $680, and awarded a weekly compensation rate of $466 \u2014 the maximum payable for injuries occurring in 2005. See Ark. Code Ann. \u00a7 11-9-501 (b) (Repl. 2002); Ark. Code Ann. \u00a7 ll-9-519(a) (Repl. 2002).\nApplying Ark. Code Ann. \u00a7 11-9-518(c), the Commission reversed the ALJ, holding that \u201cthis claim represents an \u2018exceptional circumstance,\u2019 that does not fall squarely within the confines of prior case law\u201d because appellant \u201cwas under contract to work for nine weeks, versus an unlimited number of weeks throughout the year depending on the weather or other factors, or pursuant to a yearly, renewable contract.\u201d The Commission concluded that it would be \u201cunjust and unfair\u201d to award a rate of $466, because appellant was not a regular employee but was instead a seasonal employee contracted to work for nine weeks. In arriving at his weekly compensation rate, the Commission stated that appellant was contracted to earn $9180 over a nine-week period, which averaged $1020 per week. The Commission divided the $9180 by fifty-two weeks, which equaled $176.54 per week. This amount was multiplied by 66 2/3% for a weekly compensation rate of $118 per week.\nThe Commission observed that if it awarded a rate of $466 per week, as the ALJ did, then over fifty-two weeks, appellant would receive $24,232, an amount that the Commission stated \u201cfar exceeds what the claimant was contracted to earn while working for the respondent employer,\u201d while a weekly rate of $118, over a year, \u201cfairly represents\u201d 66 2/3% of appellant\u2019s contracted wages. Further, the Commission wrote that \u201cit can be logically assumed that the claimant was employed elsewhere throughout the year,\u201d and found persuasive appellees\u2019 \u201cargument that it would be inappropriate to find that the claimant earned an average weekly wage of $1,020.00 year round, as this could require consideration of other income the claimant earned at other jobs he might hold throughout the year,\u201d and that \u201cwould place an unfair burden on [appellees] to pay compensation based on his yearly combined income, rather than on the wages he earned at the job at which he was injured.\u201d\nWe reverse and remand the Commission\u2019s decision. Here, there were no \u201cexceptional circumstances\u201d requiring application of Ark. Code Ann. \u00a7 ll-9-518(c). While the Commission urged that appellant would earn more in fifty-two weeks than his contracted amount, this is merely speculative. There is simply no evidence in the record regarding appellant\u2019s past or prospective annual earnings with this \u2014 or any other \u2014 employer. See Chapel Gardens Nursery v. Lovelady, 47 Ark. App. 114, 885 S.W.2d 915 (1994) (stating that while the employer contended that payment of benefits would exceed her annual income, the limited amount of time employee had been employed made any projection of her expected income necessarily speculative). Furthermore, at least in the absence of other evidence regarding his yearly wages, spreading a seasonal wage over a whole year for the purpose of determining the employee\u2019s weekly wage would be tantamount to legislating policy against seasonal employment. See Farm Air Corp. v. Reader, 11 Ark. App. 72, 666 S.W.2d 717 (1984). Consequently, this case is not one amenable to treatment under subsection (c) of the statute.\nAs noted above, it was stipulated that appellant was earning $1020 a week. Applying Ark. Code Ann. \u00a7 11-9-518(a)(1), this amount was appellant\u2019s average weekly wage under the contract of hire in force at the time of the accident. The case of Magnet Cove School District v. Barnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003), provides guidance. In Magnet Cove, a teacher was under a contract of hire for thirty-nine weeks. Considering the application of Ark. Code Ann. \u00a7 ll-9-518(a)(l), we affirmed the Commission\u2019s decision to divide the teacher\u2019s contract salary of $26,500 by thirty-nine, and not fifty-two weeks, as sought by the employer. Similarly, dividing appellant\u2019s total wages, $9180, by the term of the contract, nine weeks, results in an average weekly wage of $1020. Accordingly, the Commission\u2019s decision is reversed and remanded.\nIn his second point on appeal, appellant notes that the ALJ ordered appellees to pay \u201ctheir proportionate share of attorney\u2019s fees.\u201d In its opinion, the Commission noted that appellant was not represented by counsel. The Commission concluded that the ALJ erred in directing appellees to pay attorney\u2019s fees, and ordered that \u201cthis award should be and hereby is reversed.\u201d\nAppellant argues that because the parties never raised the issue of attorney\u2019s fees before the ALJ, the Commission should have vacated rather than reversed the award. He asserts that \u201c[b]y reversing rather than vacating the [ALJ\u2019s] award of attorney\u2019s fees, the Commission has prejudiced [appellant] by potentially denying him an award of attorney\u2019s fees for this appeal should he raise and litigate the issue of attorney\u2019s fees at a later date.\u201d We, however, conclude that the premise of appellant\u2019s argument is not well founded. The Commission\u2019s reversing of the award of attorney\u2019s fees prescribed by Ark. Code Ann. \u00a7 11-9-715 (a) (Repl. 2002), rather than vacating the award, has no bearing on whether appellant is entitled to attorney\u2019s fees on appeal, which is governed by Ark. Code Ann. \u00a7 ll-9-715(b). Moreover, an argument for appellant\u2019s entitlement to attorney fees in the future is simply not before us, and appellant has presented neither convincing argument nor authority indicating that he may be precluded from receiving attorney\u2019s fees at some future date.\nReversed and remanded in part; affirmed in part.\nPittman, C.J., and Robbins, Glover, Baker, and Miller, JJ., agree.",
        "type": "majority",
        "author": "Josephine Linker Hart, Judge."
      }
    ],
    "attorneys": [
      "The Law Firm of White & White, PLC, by: J. Mark White, for appellant.",
      "Betty J. Hardy, for appellee."
    ],
    "corrections": "",
    "head_matter": "Candelario M. SIERRA v. GRIFFIN GIN, AG-Comp SIF Claims\nCA 07-152\n265 S.W.3d 129\nCourt of Appeals of Arkansas\nOpinion delivered October 10, 2007\n[Rehearing denied November 7,2007.]\nThe Law Firm of White & White, PLC, by: J. Mark White, for appellant.\nBetty J. Hardy, for appellee."
  },
  "file_name": "0113-01",
  "first_page_order": 141,
  "last_page_order": 145
}