{ "id": 6140376, "name": "Polly ODOM v. TOSCO CORPORATION and HARTFORD INSURANCE COMPANY", "name_abbreviation": "Odom v. Tosco Corp.", "decision_date": "1984-07-05", "docket_number": "CA 82-325", "first_page": "196", "last_page": "206", "citations": [ { "type": "official", "cite": "12 Ark. App. 196" }, { "type": "parallel", "cite": "672 S.W.2d 915" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "233 Ark. 786", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691761 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/233/0786-01" ] }, { "cite": "6 Ark. App. 333", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142303 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/6/0333-01" ] }, { "cite": "612 S.W.2d 333", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6136904 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/1/0044-01" ] }, { "cite": "1 Ark. App. 45", "category": "reporters:state", "reporter": "Ark. App.", "year": 1981, "opinion_index": 0 }, { "cite": "3 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6714870 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/3/0108-01" ] }, { "cite": "5 Ark. App. 307", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143161 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/5/0307-01" ] }, { "cite": "584 S.W.2d 455", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9939122 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/sw2d/584/0455-01" ] }, { "cite": "346 So.2d 266", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9684314 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/so2d/346/0266-01" ] }, { "cite": "613 P.2d 670", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1441483, 394383 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/kan/228/0289-01", "/kan-app-2d/5/0083-01" ] }, { "cite": "228 Kan. 289", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1441483 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/kan/228/0289-01" ] }, { "cite": "4 Kan. App. 2d 368", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 416896 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/kan-app-2d/4/0368-01" ] }, { "cite": "282 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "158 Ga. App. 849", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 574492 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ga-app/158/0849-01" ] }, { "cite": "394 So.2d 212", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9541581 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/so2d/394/0212-01" ] }, { "cite": "244 Ark. 399", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720253 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/244/0399-01" ] }, { "cite": "253 Ark. 176", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627467 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "179" }, { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/ark/253/0176-01" ] }, { "cite": "299 S.W. 749", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1927, "opinion_index": 0 }, { "cite": "175 Ark. 507", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403464 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/ark/175/0507-01" ] }, { "cite": "233 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691758 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/233/0489-01" ] }, { "cite": "416 S.W.2d 322", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8724312, 8724508 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0879-01", "/ark/242/0922-01" ] }, { "cite": "242 Ark. 879", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724312 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0879-01" ] } ], "analysis": { "cardinality": 834, "char_count": 18648, "ocr_confidence": 0.858, "pagerank": { "raw": 2.3249891333538044e-07, "percentile": 0.7904368169727269 }, "sha256": "cdf3377d233e4a9a0d290e0ed20837f3ab5676ddb727b424052836ee295bc9e0", "simhash": "1:9633c42755213f88", "word_count": 3004 }, "last_updated": "2023-07-14T22:00:16.322657+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft and Corbin, JJ., agree." ], "parties": [ "Polly ODOM v. TOSCO CORPORATION and HARTFORD INSURANCE COMPANY" ], "opinions": [ { "text": "Tom Glaze, Judge.\nThis workers\u2019 compensation appeal results from the Commission\u2019s refusal to enforce a joint petition settlement agreement, because the claimant died before a hearing was conducted on the joint petition. A review of the procedure by which this appeal has evolved is necessary to a clear understanding of our disposition of the case.\nThe claimant, Polly Odom, now deceased, suffered a compensable back injury when she fell on some stairs at work on September 5, 1978. She continued her job as an accounting clerk until October 20, 1978, when she became unable to work because of pain. She attempted to return to work on February 19,1979, but the company fired her at that time, discontinued her salary on February 28, 1979, and stopped paying for her therapy in March of 1979. A hearing was conducted before an administrative law judge on November 14, 1979. Appellees admitted that claimant was entitled to 10% permanent partial disability, but through an oversight, appellees paid nothing until after a decision was rendered in a second hearing conducted on July 16, 1981. The law judge filed his opinion on March 11, 1982. He set claimant\u2019s permanent partial disability at 35% to the body as a whole. He also found controversion of all benefits in excess of 10% to the body as a whole. On May 19,1982, the appellees paid the claimant $3,937.50, representing 10% permanent partial disability benefits that had not been paid because of an \u201cin-house oversight.\u201d On June 23, 1982, on appeal and cross-appeal, the Commission affirmed the decision of the administrative law judge except on the controversion issue. The Commission found the record inadequate to determine whether the initial 10% permanent partial disability had been con trovert\u00e9d and, if so, which one of the claiman t\u2019s two attorneys was entitled to the fee. The Commission said:\n, [I]f the parties themselves have not resolved these two issues by negotiation and agreement when this decision has become final, these two questions will have to be presented to the Administrative Law Judge for appropriate evidentiary development and decision. It will be the responsibility of the parties to request such a hearing before the Administrative Law Judge.\nThe appellant appealed and the appellees cross-appealed the Commission\u2019s decision to this Court. While the appeal was pending, appellant filed a motion to remand to the Commission for the parties to enter a joint petition. We granted the motion to remand on December 2, 1982. A hearing on the joint petition was scheduled for December 15, 1982. On December 9, 1982, the claimant died from a condition unrelated to her compensable injury.\nA hearing was held before an administrative law judge on March 1, 1983, to determine whether the joint petition settlement should be approved. Henry Odom, husband of Polly Odom, appeared as administrator of her estate. The law judge determined that, under \u00a7 19(1) of the Workers\u2019 Compensation Act, an agreement for settlement between the parties has no effect on the parties\u2019 rights until a hearing is conducted by the Commission. Ark. Stat. Ann. \u00a7 81-1319(1) (Repl. 1976). Therefore, the law judge denied the joint petition, not on substantive, but on procedural grounds. The Commission affirmed and adopted the decision of the law judge. On this appeal, appellant claims the Commission erred in not approving and enforcing the joint petition settlement. Appellant asks this Court to enforce the settlement agreement or, in the alternative, to decide the original appeal on its merits.\nIn support of the contention that the Commission should have approved the joint petition settlement, appellant cites a number of cases to illustrate that the policy of the law is to favor, to encourage, and to enforce compromise settlements. See, e.g., St. Paul Fire and Marine Insurance Co. v. Wood, 242 Ark. 879, 416 S.W.2d 322 (1967); Squires v. Beaumont, 233 Ark. 489, 345 S.W.2d 465 (1961); and Jacobs v. American Bank and Trust Co., 175 Ark. 507, 299 S.W. 749 (1927). However, the cases cited by appellant do not deal with the joint petition procedure required under the workers\u2019 compensation laws. St. Paul Fire and Marine Co. v. Wood dealt with a tort claim and subrogation under \u00a7 81-1340 (Repl. 1960); Squires v. Beaumont involved a lawsuit for damages between two business associates over a construction project in which they were involved; and Jacobs v. American Bank and Trust Company concerned an unlawful detainer action; the \u201csettlement\u201d was between the assignee of the mortgagee and the mortgagor.\nAlthough the court in each of the foregoing cases stated that the law favors compromise settlements, that general rule does not apply to joint petition settlements. Section 81-1319(1) provides:\n(1) Joint petition. Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition.\nThe Commission\u2019s own Rule 19 provides, in part, as follows:\nThe Commission discourages the use of the Joint Petition as a means of settling cases except in unusual circumstances.\nRule 19, Arkansas Workers\u2019 Compensation Law and Rules of the Commission (1982).\nIn Jacob Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W.2d 200 (1972), the Court said about joint petition settlements:\nThe necessity for extreme caution in approving such settlements so clearly recognized by the commission\u2019s procedural rule lies in the fact that any award based thereon finally concludes all rights of the parties, even foreclosing any right of appeal from the order of approval. This is the only procedure under our act which leaves the claimant without any further remedy, regardless of subsequent developments.\nId. at 179, 485 S.W.2d at 202.\nWe cannot agree with appellant\u2019s arguments that this joint petition settlement should be enforced as any other contract of settlement with the administrator serving as a substitute for the deceased claimant. Nor can we agree that the actual hearing required by our statute is purely administrative and does not affect the rights of the parties. The Commission\u2019s Rule 19, quoted in part above, provides further:\nNo Joint Petition will be approved unless such Petition sets forth the nature of the unusual circumstances and unless such unusual circumstances are proved at a hearing.\nIt shall be necessary for the claimant to appear and testify at a Joint Petition hearing. Petitions shall be signed by all parties, including the claimant, and must be verified.\nUnder certain circumstances, the Commission may designate or direct the parties to take claimant\u2019s testimony by deposition or interrogatories.\nRule 19, Arkansas Workers\u2019 Compensation Laws and Rules of the Commission (1982).\nIn Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968), the Court affirmed the Commission in finding that a settlement agreement was not final within the meaning of section 19. In that case, the employer and the claimant reached an agreement they referred to as a \u201cfinal settlement.\u201d On the basis of letters to the Commission from the parties\u2019 attorneys, the Commission cancelled a scheduled hearing and entered an order incorporating the parties\u2019 agreed-upon terms of payment. When a claim was filed for payment of medical services outside the scope of the settlement, Georgia-Pacific refused to pay. The Court quoted the Commission\u2019s Rule 19 and found that Georgia-Pacific had made no attempt to comply with the rule. Therefore, the Court said, the Commission was justified in finding that its own order was not a final settlement within the meaning of the joint petition provision.\nWhat the appellant asks us to do in this case would require that we ignore the Commission\u2019s own procedures and the prior Arkansas cases on joint petitions. Because the precise facts at bar have not been presented previously to us, we have examined cases from other jurisdictions. See, e.g., Rogers v. Concrete Sciences, Inc., 394 So.2d 212 (Fla. Dist. Ct. App. 1981); Denton v. United States Fidelity & Guaranty Co., 158 Ga. App. 849, 282 S.E.2d 350 (1981); Barncord v. State Department of Transportation, 4 Kan. App. 2d 368, 606 P.2d 501, aff\u2019d, 228 Kan. 289, 613 P.2d 670 (1980); Pepitone v. State Farm Mutual Insurance Co., 346 So.2d 266 (La. Ct. App. 1977); Sherlin v. Liberty Mutual Insurance Co., 584 S.W.2d 455 (Tenn. 1979). In each of these cases, the claimant died between the time a settlement agreement was reached and the time of approval by the Commission \u2014 or the equivalent of our Commission \u2014 in each state.\nIn Barncord v. Department of Transportation, the claimant died on the day that a proposed oral settlement was to be presented to the Director of Workmen\u2019s Compensation Fund as the Kansas statute required. The Kansas Court of Appeals rejected the contention of the claimant\u2019s widow and children that the approval of a settlement agreement under Kansas law was merely a procedural formality. The Court quoted Larson as follows:\nIf the statute requires that a settlement have Commission approval, a settlement lacking such approval amounts to nothing more than a voluntary payment of compensation.. . . [I]t does not give rise to an \u201caward. ...\u201d\nBarncord, 606 P.2d at 505 quoting 3 Larson, Workmen\u2019s Compensation Law \u00a7 82.60 (1976). The Kansas Court concluded that the negotiated amount was not due the claimant at the date of his death because the settlement had not yet been presented to the director in a form recognized by statute.\nThe Supreme Court of Tennessee also considered the precise question before our Court under similar facts in Sherlin v. Liberty Mutual Insurance Company. The parties\u2019 attorneys reached a written agreement that, in Tennessee, was subject to approval by a judge of chancery, circuit, or criminal court. The claimant died of a nonwork-related gunshot wound before that approval was attained. In deciding whether or not the decedent\u2019s claim survived his death, the Court analogized that unaccrued disability benefits do not survive a claimant\u2019s death and become payable to his personal representative. The Court pointed out the rationale for such a rule:\n[I]t is the purpose of workmen\u2019s compensation acts to make industry take care of its casualties. To that end compensation is provided for injured workmen in lieu of wages. Wages cease with death, and likewise compensation received in lieu of wages must cease with death. If the employee dies from natural causes, his representatives have no claim against the employer. If the death results from injuries received in the industry, there are special provisions to take care of the employee\u2019s dependents. It would put an additional burden on the employer, not contemplated by the statutes, to require him to pay either wages or compensation to representatives of an employee who died from natural causes. If an employee had a vested right in compensation, he could will it away, and the employer would be paying this substitute for wages to persons with whom he had no connection.\nSherlin v. Liberty Mutual Insurance Co., 584 S.W.2d at 458. The court determined that the claimant\u2019s personal representative was entitled to temporary total benefits which had accrued at the time of his death, but not to the settlement amount that had not been approved prior to his death.\nOur own workers\u2019 compensation statutes provide that no compensation for disability is payable for any period beyond a claimant\u2019s death. However, an award of compensation for disability may be made after the claimant\u2019s death for the period of disability preceding death. Ark. Stat. Ann. \u00a7 81-1323(e) (Repl. 1976). We agree with the reasoning of the courts in the above-cited jurisdictions and find that the settlement reached by the deceased claimant and the appellees is not effective because a joint petition hearing had not been conducted and Commission approval had not been rendered prior to the claimant\u2019s death.\nThe appellant also argues that the settlement agreement between the decedent and appellees is enforceable based upon estoppel and waiver. Appellant contends the appellees are estopped to deny the settlement because they caused the claimant to have her appeal remanded for the purposes of entering a joint petition and that the claimant relied on appellees\u2019 conduct to her detriment or abandoned a legal right upon appellees\u2019 representations. The cases appellant cites in support of an estoppel theory are not workers\u2019 compensation cases. We have already held that our workers\u2019 compensation laws prevented the payment of the settlement agreement reached in this case. Accordingly, the claimant\u2019s death prior to the Commission\u2019s approval of the settlement caused the agreement not to be enforced; the failure to approve or enforce the agreement was not caused by appellees\u2019 conduct.\nAppellant\u2019s argument based upon waiver is much the same as her estoppel argument. Because the appellees entered into the settlement agreement, appellant contends, they waived their rights to object to the settlement. Again, waiver simply does not apply in this instance, because it is not the appellees\u2019 actions that preclude enforcement of the settlement, but the claimant\u2019s untimely death.\nBecause we find that the settlement agreement was. not effective prior to approval by the Commission pursuant to Ark. Stat. Ann. \u00a7 81-1319 (Repl. 1976), we consider appellant\u2019s alternative request for relief, that is, that we decide the issues presented in the original appeal. Both parties had appealed the Commission\u2019s award to the claimant of 35% permanent partial disability. The appellant raised five points for reversal, some of which we can consolidate for our discussion purposes.\nThe appellant\u2019s first allegation of error, that the Commission should have allowed the claimant\u2019s request to present additional evidence, was rendered moot by the claimant\u2019s death. However, we do not find error in the Commission\u2019s denial of the claimant\u2019s request. The statutory provisions that give the Commission the right to make investigations, order medical examinations or to take such action as it deems proper to ascertain and protect the rights of the parties, provide that these actions of the Commission are discretionary, not mandatory. Ark. Stat. Ann. \u00a781-I319(i), -1323(b), -1327 (Repl. 1976 and Supp. 1983). We do not find that the Commission abused its discretion in denying the claimant the right to additional time to be tested and to introduce the results of a C. T. scan.\nWe consider the appellant\u2019s second and third points together, that the Commission applied an improper legal standard and failed to set out its findings of fact. Appellant contends the Commission based its decision upon whether the evidence supported the decision of the administrative law judge. However, the appellant has misconstrued what the Commission said. The Commission found the decision of the administrative law judge \u201csupported by a preponderance of the evidence.\u201d In addition, the Commission affirmed and adopted the decision of the administrative law judge. That adoption had the effect of transferring to the Commission the findings of the law judge. See Oller v. Champion Parts Rebuilders, Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982); Dedmon v. Dillard Department Stores, Inc., 3 Ark. App. 108, 623 S.W.2d 207 (1981); Jones v. Scheduled Skyways, Inc., 1 Ark. App. 45, 612 S.W.2d 333 (1981).\nAppellant\u2019s fourth point is that the Commission erred in failing to resolve whether the appellees had controverted the 10% permanent partial disability benefits and if so, which of appellant\u2019s two lawyers was entitled to the fee. The Commission found the record inadequate to decide those questions. It instructed the parties to resolve those issues themselves or to request a hearing before the law judge to develop evidence on those points. We find no error in the Commission\u2019s determination. The appellant argues to us the argument she should have developed before the law judge. We cannot consider the merits of the question when it was not argued below. Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982).\nFinally, the appellant contends the Commission\u2019s decision is not supported by substantial evidence. Appellant argues, based primarily upon the claimant\u2019s testimony, that the record clearly shows the claimant was totally disabled. However, what appellant argues is precisely the factual question that was before the Commission. We must affirm the Commission if substantial evidence supports its finding that the claimant suffered permanent partial disability of 35% to the body as a whole. We find substantial evidence does support that finding in light of all of the evidence: the claimant\u2019s testimony, Dr. Hartmann\u2019s rating of 10% to the body as a whole, and Dr. Lester\u2019s rating of 10-15% to the body as a whole. Dr. Giles found \u201cchronic disability . . . without evidence of clinical radiculopathy.\u201d The Commission awarded disability in an amount greater than the medical evidence warranted, indicating that the Commission undoubtedly took into consideration the testimony of the claimant and her daughter, as well as factors other than medical evidence. See Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961).\nWe have determined that the Commission was correct in finding the proposed settlement ineffective because a hearing was not conducted on the joint petition prior to the claimant\u2019s death. In addition, we affirm in all respects the Commission\u2019s decision that resulted in appellant\u2019s first appeal. The appellees are liable to the claimant\u2019s personal representative for all benefits that had accrued at the time of claimant\u2019s death, figured at 35% to the body as a whole.\nAffirmed.\nCracraft and Corbin, JJ., agree.", "type": "majority", "author": "Tom Glaze, Judge." } ], "attorneys": [ "Denver L. Thornton, for appellant.", "Griffin, Rainwater ir Draper, for appellee." ], "corrections": "", "head_matter": "Polly ODOM v. TOSCO CORPORATION and HARTFORD INSURANCE COMPANY\nCA 82-325\n672 S.W.2d 915\nCourt of Appeals of Arkansas Division I\nOpinion delivered July 5, 1984\nDenver L. Thornton, for appellant.\nGriffin, Rainwater ir Draper, for appellee." }, "file_name": "0196-01", "first_page_order": 226, "last_page_order": 236 }