{
  "id": 6137932,
  "name": "Jerry SEWARD v. The BUD AVANTS COMPANY, Employer; Rockwood Insurance/Arkansas Property & Casualty Guaranty Fund, Carrier",
  "name_abbreviation": "Seward v. Bud Avants Co.",
  "decision_date": "1999-02-10",
  "docket_number": "CA 98-906",
  "first_page": "88",
  "last_page": "96",
  "citations": [
    {
      "type": "official",
      "cite": "65 Ark. App. 88"
    },
    {
      "type": "parallel",
      "cite": "985 S.W.2d 332"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "12 Ark. App. 400",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
        6143330
      ],
      "weight": 2,
      "year": 1984,
      "opinion_index": 0,
      "case_paths": [
        "/ark-app/12/0400-01"
      ]
    },
    {
      "cite": "Ark. Code Ann. \u00a7 23-90-103",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1992,
      "pin_cites": [
        {
          "page": "(2)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "Ark. Code Ann. \u00a7 23-90-101-123",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1992,
      "opinion_index": 0
    },
    {
      "cite": "330 Ark. 645",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        298539
      ],
      "weight": 3,
      "year": 1997,
      "opinion_index": 0,
      "case_paths": [
        "/ark/330/0645-01"
      ]
    },
    {
      "cite": "4 Ark. App. 11",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
        6135989
      ],
      "weight": 2,
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
        "/ark-app/4/0011-01"
      ]
    },
    {
      "cite": "Ark. Code Ann. \u00a7 11-9-716",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "weight": 2,
      "year": 1996,
      "opinion_index": 0
    },
    {
      "cite": "Ark. Code Ann. \u00a7 11-9-715",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "weight": 4,
      "year": 1996,
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 532,
    "char_count": 13023,
    "ocr_confidence": 0.75,
    "pagerank": {
      "raw": 1.1256306256765088e-07,
      "percentile": 0.5745209469741286
    },
    "sha256": "c9b7b373be7aed3c50bec0a21c64bca22eb4506417efdba12abf9cde6e7edabf",
    "simhash": "1:38b2708ac80ec309",
    "word_count": 2152
  },
  "last_updated": "2023-07-14T20:05:27.101250+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Robbins, C.J., and Meads, J., agree."
    ],
    "parties": [
      "Jerry SEWARD v. The BUD AVANTS COMPANY, Employer; Rockwood Insurance/Arkansas Property & Casualty Guaranty Fund, Carrier"
    ],
    "opinions": [
      {
        "text": "Sam Bird, Judge. The\nclaimant in this workers\u2019 compensation case was injured in 1988, and, in an opinion issued by the administrative law judge on March 12, 1993, found to be permanently and totally disabled under the odd-lot doctrine. Maximum attorney fees were ordered, \u201cto be paid in accordance with A.C.A. \u00a711-9-715, \u00a7 11-9-716, \u00a7 11-9-801, and WCC Rule 10,\u201d with respondents (the employer and its workers\u2019 compensation carrier) to pay \u201ctheir proportionate share.\u201d That opinion was not appealed to the Commission within thirty days, and, therefore, became a final order. However, the respondent employer\u2019s workers\u2019 compensation insurance carrier (Rockwood Insurance Company) had apparently become insolvent, and the Arkansas Property and Casualty Insurance Guaranty Fund (Fund), which assumed the carrier\u2019s obligations, requested a hearing to determine the amount of the attorney\u2019s fee awarded and whether the claimant\u2019s share of the fee should be deducted from his weekly disability benefit that the Fund was obligated to pay. Although appellant argued to the administrative law judge that the March 12, 1993, opinion was not appealed, and was, therefore, res judi-cata, the administrative law judge entered an order on September 26, 1995, directing payment of an attorney\u2019s fee of $7,873, \u201cwith one-half of said fee to be paid by the claimant out of the benefits which he is receiving from the [Fund] and one-half to be paid by the respondent employer, The Bud Avants Company.\u201d\nAppellant appealed the decision of the law judge, arguing that the wrong figures were used to calculate the lump-sum attorney\u2019s fee and that the law judge erred in requiring the claimant to pay his one-half of the fees out of his weekly benefits. On March 13, 1997, the Commission affirmed the law judge\u2019s order, as modified. Appellant appealed to this court and, on January 14, 1998, we remanded for the Commission to address appellant\u2019s argument that the Commission did not have jurisdiction because the March 1993 order was not appealed and was, therefore, res judicata.\nIn its opinion on remand, the Commission found that the March 1993 order became final after thirty days when it was not appealed, and, therefore, the issues decided by that order were res judicata. However, it also held that the doctrine of res judicata \u201cdoes not bar issues which were not previously decided and could not have been decided.\u201d The Commission then held that the \u201cSeptember 26, 1995, order was an attempt to settle and clarify the award of [attorney] fees awarded in the March 12, 1993, opinion.\u201d The Commission said that because the March 1993 opinion ordered that attorney\u2019s fees be paid in a lump sum but did not calculate the amount, the subsequent order determining the amount of the fee and the way it was to be paid was a collateral matter, which was not litigated and settled in the previous order and was not, therefore, res judicata. It stated: \u201cWhile claimant\u2019s attorney contended entitlement to a fee based upon controversion, the amount of the actual fee was never litigated until respondent\u2019s motion.\u201d\nAppellant has once again appealed to this court and makes three arguments:\nI. Chief Administrative Law Judge Shelton and the full Commission lacked jurisdiction to enter any order modifying the order of Administrative Law Judge Hogan which required the appellees to pay a lump-sum attorney\u2019s fee to appellant\u2019s attorney in accordance with A.C.A. \u00a7 11-9-715, A.C.A. \u00a7 11-9-716, A.C.A. \u00a7 11-9-801 and WCC Rule 10.\nII. The decision of the full Commission that the appellant\u2019s one-half of the attorney\u2019s fee awarded should be deducted from any of his accrued benefits or by withholding ten percent of his bi-weekly checks until his one-half of the attorney\u2019s fee is paid in full should be reversed.\nIII. The decision of the Commission as to the figures used to calculate the attorney\u2019s fee and their calculation of that amount should be affirmed.\nWe affirm the Commission\u2019s findings on points one and two, and reverse and remand on point three.\nAppellant\u2019s first argument is that the Commission did not have jurisdiction to enter the September 26, 1995, order because the March 1993 judgment was not appealed. Appellant contends the law of collateral estoppel, issue preclusion, and res judicata prevented the Commission from having jurisdiction. We disagree. The March 12, 1993, order requiring payment of maximum attorney\u2019s fees to appellant\u2019s attorney was not final and appealable as to the specific amount of the fee, nor could it be. The fee due an attorney for representing a claimant in a workers\u2019 compensation case is based on a percentage of the benefits the claimant receives. See Ark. Code Ann. \u00a7 11-9-715 (Repl. 1996). As long as the claimant is receiving benefits, the attorney is entitled to a fee in an amount not to exceed a statutorily specified percentage of the amount of benefits received by the claimant. Ark. Code Ann. \u00a7 ll-9-715(a)(l)(B). Therefore, until the claimant is no longer receiving benefits, the total amount of the fee due to a claimant\u2019s attorney cannot be determined. Consequently, we agree with the Commission\u2019s conclusion that the administrative law judge\u2019s September 26, 1995, opinion that merely calculated the amount of appellant\u2019s attorney\u2019s fee and specified by whom it was to be paid, was not barred by res judicata because that issue had not been litigated or determined by the March 12, 1993, opinion.\nAppellant also argues that the decision of the full Commission that the appellant\u2019s one-half of the attorney\u2019s fee awarded should be deducted from any of his accrued benefits or by withholding ten percent of his bi-weekly checks until his one-half of the attorney\u2019s fee is paid in full, should be reversed. Appellant contends that since the March 1993 order stated that the attorney\u2019s fee was to be paid in lump sum, the award is not required to be paid one-half by each party but is to be paid in full by the employer. He reasons that when the legislature amended Ark. Code Ann. \u00a7 11-9-715 to require the claimant and respondents to split the attorney\u2019s fee in half, it did not amend the lump-sum section, and, consequently, the division of the attorney\u2019s fee between the parties does not apply when the Commission\u2019s order specifies that the attorney\u2019s fee is to be paid in a lump sum pursuant to Ark. Code Ann. \u00a7 11-9-716 (Repl. 1996). Appellant cites no authority in support of his interpretation of \u00a7 11-9-716, and his argument overlooks the language of the order itself, which provides that appellees are to pay \u201ctheir proportionate share of attorney\u2019s fees.\u201d\nArkansas Code Annotated section ll-9-715(a)(2)(B)(i) (Repl. 1996) provides:\nIn all other cases whenever the commission finds that a claim has been controverted, in whole or in part, the commission shall direct that fees for legal services be paid to the attorney for the claimant as follows: One-half (V2) by the employer or carrier in addition to compensation awarded; and one-half (V2) by the injured employee or dependents of a deceased employee out of compensation payable to them.\nThus, the appellant\u2019s argument that the employer is to pay all the attorney\u2019s fee when it is awarded as a lump sum is also contradicted by the statute.\nAppellant also argues that unless the employer is required to pay the entire amount of the attorney\u2019s fee when a lump sum is awarded, there exists a risk that the attorney might never be paid the fees he has earned because the claimant might die or become disqualified to receive benefits before the attorney receives his full fee, thereby putting the attorney in the same position he was in before the enactment of \u00a7 11-9-716. We agree with appellant that \u00a7 11-9-716 was enacted to remedy the problem of attorneys failing to receive full payment of their fees where the attorney received his compensation in installments on the same schedule that benefits were paid to recipients, but benefits ceased before the attorney received full payment of his fee. Aluminum Co. of Am. v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982). However, we do not agree with appellant that the adoption of the fee-splitting statute (Ark. Code Ann. \u00a7 11-9-715) without a corresponding amendment of the lump-sum statute (Ark. Code Ann.\n\u00a7 11-9-716) means that the legislature intended that the employer would continue to be Hable for the entire amount of any lump-sum fees awarded. It would be wholly inconsistent for the legislature to amend Ark. Code Ann. \u00a7 11-9-715 by directing the Commission to order that one-half of attorney\u2019s fees be paid by the employer or carrier and one-half of the fee be paid by the injured employee or his dependents, while leaving intact Ark. Code Ann. \u00a7 11-9-716 that, according to appellant\u2019s interpretation, would permit the Commission to circumvent the fee-splitting requirement by simply ordering that all attorney\u2019s fees be paid in lump sum. Appellant\u2019s interpretation is also inconsistent with the principle of statutory construction that legislative acts relating to the same subject or having the same purpose must be construed together and in harmony if possible. Reed v. State, 330 Ark. 645, 957 S.W.2d 174 (1997). In construing such statutes, it is presumed that when the general assembly passed the latter act, it was well aware of the prior act. Id.\nThere is nothing in \u00a7 11-9-716 that requires the Commission to approve a lump-sum payment of the entire amount of an attorney\u2019s fee or that prohibits the Commission from approving a plan by which an attorney\u2019s fee is paid partly by lump sum and partly in installments. Since the amendment to Ark. Code Ann. \u00a7 ll-9-715(a)(2)(B)(i) contains the specific language that the half of the fee chargeable to the injured employee or his dependents is to be paid \u201cout of compensation payable to them,\u201d it appears to have been the intention of the legislature to enable the Commission to approve the lump-sum payment of attorney\u2019s fees chargeable to the employer while providing for installment payments of the portion of the attorney\u2019s fee chargeable to the injured employee or the injured employee\u2019s dependents. Therefore, we affirm the Commission\u2019s decision to provide for the payment of the attorney\u2019s fee in that fashion, with the employer\u2019s portion to be paid in lump sum, and the claimant\u2019s portion to be paid in installments out of the compensation payable to him.\nHowever, we agree with appellant and the view expressed by the dissenting Commissioner in the Commission\u2019s March 13, 1997, opinion, that the portion of the fee to be paid in installments by appellant should not be discounted since it is not being received by the attorney in lump sum. Therefore, we reverse as to this point and remand this matter to the Commission for the entry of an order providing for the payment of appellant\u2019s portion of the fee in installments from the benefits payable to him, without discount. In doing so, we recognize that there has probably already accrued, as a percentage of benefits already received by appellant, a significant sum of unpaid attorney\u2019s fees. On remand, the Commission should establish an appropriate schedule for the payment of those previously accrued, but unpaid, attorney\u2019s fees.\nFor his third point, appellant asks us to affirm the Commission\u2019s calculations of his attorney\u2019s fee. From the briefs, it does not appear that there is any disagreement among the parties as to the amount of the fee recalculated by the Commission in its April 15, 1998, opinion. However, since the Commission\u2019s figure ($9,084.44) was arrived at by discounting the entire amount of the attorney\u2019s fee, and not by discounting only the half of the attorney\u2019s fee chargeable to the employer to be paid in lump sum, we affirm only the Commission\u2019s calculation of the portion of the fee chargeable to the employer ($4,542.22), but, as stated above, we remand this matter to the Commission to estabhsh an appropriate schedule for the payment of that portion of the fee chargeable to the appellant on a non-discounted basis.\nAffirmed in part, and reversed and remanded in part.\nRobbins, C.J., and Meads, J., agree.\nThe Arkansas Property and Casualty Insurance Guaranty Fund is a statutorily created entity (Ark. Code Ann. \u00a7 23-90-101-123 (Repl. 1992)) that assumes the responsibility to satisfy certain obligations of insurers that become insolvent.\nArk. Code Ann. \u00a7 23-90-103(2) (Repl. 1992) excludes \u201cattorneys\u2019 fees and costs\u201d from the obligations that the Fund is required to assume.\nAppellant concedes in his brief that he has found no case law supporting his argument, but refers us to International Paper Co. v. McBride, 12 Ark. App. 400, 678 S.W.2d 375 (1984), as providing \u201csome guidance.\u201d We do not find McBride to be helpful.",
        "type": "majority",
        "author": "Sam Bird, Judge. The"
      }
    ],
    "attorneys": [
      "David H. McCormick, for appellant.",
      "William H. Trice III, for appellee."
    ],
    "corrections": "",
    "head_matter": "Jerry SEWARD v. The BUD AVANTS COMPANY, Employer; Rockwood Insurance/Arkansas Property & Casualty Guaranty Fund, Carrier\nCA 98-906\n985 S.W.2d 332\nCourt of Appeals of Arkansas Division III\nOpinion delivered February 10, 1999\nDavid H. McCormick, for appellant.\nWilliam H. Trice III, for appellee."
  },
  "file_name": "0088-01",
  "first_page_order": 110,
  "last_page_order": 118
}