{ "id": 922861, "name": "STUCCO PLUS, INC. v. Donald ROSE and Second Injury Trust Fund", "name_abbreviation": "Stucco Plus, Inc. v. Rose", "decision_date": "1997-02-17", "docket_number": "96-256", "first_page": "314", "last_page": "324", "citations": [ { "type": "official", "cite": "327 Ark. 314" }, { "type": "parallel", "cite": "938 S.W.2d 556" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "23 Ark. App. 193", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139779 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/23/0193-01" ] }, { "cite": "32 Ark. App. 5", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6643523 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/32/0005-01" ] }, { "cite": "276 S.W. 1014", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1925, "opinion_index": 0 }, { "cite": "169 Ark. 755", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1373995 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/ark/169/0755-01" ] }, { "cite": "876 S.W.2d 577", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1443811, 1443758 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0226-01", "/ark/317/0231-01" ] }, { "cite": "317 Ark. 226", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443811 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0226-01" ] }, { "cite": "309 Ark. 59", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906010 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0059-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 11-9-301", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "217 Ark. 821", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724659 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0821-01" ] }, { "cite": "289 Ark. 509", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875385 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0509-01" ] }, { "cite": "295 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893822 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0001-01" ] }, { "cite": "1986 Ark. Acts 10", "category": "laws:leg_session", "reporter": "Ark. Acts", "opinion_index": 0 }, { "cite": "1981 Ark. Acts 290", "category": "laws:leg_session", "reporter": "Ark. Acts", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 11-9-525", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(b)(5)" } ], "opinion_index": 0 }, { "cite": "316 Ark. 447", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907744 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0447-01" ] }, { "cite": "52 Ark. App. 42", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136990 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/52/0042-01" ] } ], "analysis": { "cardinality": 604, "char_count": 16548, "ocr_confidence": 0.77, "pagerank": { "raw": 1.261809456165164e-07, "percentile": 0.6126198863331415 }, "sha256": "67d88e640e227da14313aadcb83fc6dc9dfb9abeab09020fb4d286bea42dfb60", "simhash": "1:e514e5ad59e70a99", "word_count": 2685 }, "last_updated": "2023-07-14T16:50:41.435320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STUCCO PLUS, INC. v. Donald ROSE and Second Injury Trust Fund" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant Stucco, Incorporated, appeals the decision of the Arkansas Workers\u2019 Compensation Commission holding that Stucco is liable for benefits to its employee, Appellee Donald Rose, at the total disability benefits rate, that the liability of Appellee Second Injury Trust Fund does not begin until Stucco\u2019s liability is paid out, and that Stucco is responsible for an attorney\u2019s fee on the difference between Rose\u2019s total disability benefits and permanent partial disability benefits. The Arkansas Court of Appeals affirmed the Commission\u2019s decision. Stucco, Inc. v. Rose, 52 Ark. App. 42, 914 S.W.2d 767 (1996).\" We granted Stucco\u2019s petition for review of that decision, which was decided by a tie vote. When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Maloy v. Suttgart Memorial Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994). We find error in the Commission\u2019s decision and reverse and remand.\nFacts and Procedural History\nThe facts of this case are not disputed. Rose sustained a work-related injury to his lower back on June 26, 1990. His healing period ended June 23, 1991. As a result of this injury, he sustained an anatomical impairment of 13% to the body as a whole. Rose had a preexisting disability or impairment which, when combined with the June 1990 injury, resulted in his total disability. The 13% impairment equates to a benefit period of 58.5 weeks. The maximum weekly rate for permanent partial disability benefits for Rose\u2019s June 1990 injury is $169.59. The maximum weekly rate for total disability benefits is $226.11.\nBoth Stucco and the Second Injury Trust Fund accepted Rose\u2019s claim as compensable and as governed by Ark. Code Ann. \u00a7 11-9-525(b)(5) (Repl. 1996). A dispute arose, however, concerning the rate at which Rose\u2019s benefits should be paid and by whom they should be paid. Stucco contended that it should only be hable for benefits for the 58.5 weeks at the permanent partial disability rate of $169.59 and that the Second Injury Trust Fund is Hable for the difference between that rate and the total disability rate of $226.11. The Second Injury Trust Fund contended that its liability for Rose\u2019s total disability benefits did not begin until after Stucco paid the first 58.5 weeks at the total disability rate of $226.11.\nThe Administrative Law Judge found that Rose was entitled to receive benefits for his 13% impairment at the total disability rate of $226.11 beginningjune 24, 1991. The Administrative Law Judge ordered Stucco to pay the 58.5 weeks of benefits at the permanent partial disability rate of $169.59 per week, and, at the conclusion of the 58.5 weeks, ordered the Second Injury Trust Fund to pay the difference between the total disability rate of $226.11 per week and the permanent partial disability rate of $169.59 per week that accrued during the first 58.5 weeks. The Administrative Law Judge further ordered that, after the 58.5-week period, the Second Injury Trust Fund was to pay Rose benefits at the total disability rate of $226.11 until he is no longer disabled or dies.\nThe Administrative Law Judge determined that neither Stucco nor the Fund controverted Rose\u2019s claim for total disability benefits subsequent to the 58.5-week period, but that both Stucco and the Fund controverted Rose\u2019s claim to weekly benefits in excess of the permanent partial disability rate for the first 58.5 weeks. Accordingly, the Administrative Law Judge ordered the Fund to pay the maximum statutory attorney\u2019s fee based on the additional benefits found to be its liability. In addition, the Administrative Law Judge awarded Rose\u2019s attorney a fee of $500.00 to be paid by Rose.\nThe Second Injury Trust Fund appealed to the Commission, and Rose cross-appealed on the issue of controversion of total disability benefits after the 58.5 weeks. The Commission affirmed the Administrative Law Judge\u2019s finding that Rose was entitled to benefits at the total disability rate of $226.11, but reversed the finding that Stucco was responsible for the first 58.5 weeks at the permanent partial disability rate and ordered Stucco to pay at the total disability rate.\nThe Commission affirmed the Administrative Law Judge\u2019s finding that neither Stucco nor the Fund controverted the total disability benefits after the first 58.5 weeks, but reversed the Administrative Law Judge\u2019s determination that the Fund was liable for the fees to Rose\u2019s attorney based upon the difference between the two rates of benefits.\nStucco appealed the Commission\u2019s decision. Rose cross-appealed on the issue of controversion after the 58.5 week period. Rose has not pursued his cross-appeal in this court. Stucco presents two arguments for reversal of the Commission\u2019s decision. First, Stucco contends the Commission erred in holding that Stucco must pay Rose\u2019s benefits at the total disability rate. Second, Stucco contends the Commission erred in holding Stucco responsible for attorney\u2019s fees on the difference between Rose\u2019s permanent partial disability rate and total disability rates. We find merit to both arguments and reverse and remand.\nRate of Benefits\nThe very narrow issue presented is strictly a question of law. All parties agree that Rose is entitled to total disabihty benefits of $226.11 as a result of the combination of a preexisting injury and a later injury that Rose incurred in June 1990 while working for Stucco and that resulted in the 13% impairment rating. All parties agree that Second Injury Trust Fund liability is established. Ah parties agree that Stucco is responsible for paying Rose\u2019s benefits for the first 58.5 weeks due to the later injury. The question is how much of the $226.11 does the Workers\u2019 Compensation Act require Stucco to pay, all $226.11 or only $169.59 with the Second Injury Trust Fund then making up the difference. In other words, at what rate does the Workers\u2019 Compensation Act require Stucco to pay benefits during the 58.5 weeks, the permanent partial disability rate or the total disability rate?\nSection 11-9-525 addresses total disability resulting from the combination of a preexisting injury and a later injury, and provides as follows:\n11-9-525. Compensation for disability \u25a0 \u2014 \u2022 Second injuries.\n(a)(1) The Second Injury Trust Fund established in this chapter is a special fund designed to ensure that an employer employing a handicapped worker will not, in the event the worker suffers an injury on the job, be held liable for a greater disabihty or impairment than actually occurred while the worker was in his employment.\n(2) The employee is to be fuhy protected in that the fund pays the worker the difference between the employer\u2019s liability and the balance of his disabihty or impairment which results from ah disabilities or impairments combined.\n(b) (5) If the previous disabihty or impairment, whether from compensable injury or otherwise, and the last injury together result in permanent total disabihty, the employer at the time of the last injury shah be hable only for the actual anatomical impairment resulting from the last injury considered alone and of itself. However, if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in \u00a7\u00a7 11-9-501 \u2014 11-9-506 for permanent total disability, then, in addition to the compensation for which the employer is hable and after the completion of payment of compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under \u00a7\u00a7 11-9-501 \u2014 11-9-506 out of the fund.\nSection 11-9-525 (b)(5) is at the heart of this dispute and is silent on the rate at which an employer\u2019s liability for benefits is to be determined. This silence is perhaps due to the fact that when the language at issue in this case was adopted by 1981 Ark. Acts 290, \u00a7 4, the rates for permanent partial disability and permanent total disability benefits were the same. Those rates became different pursuant to 1986 Ark. Acts 10, \u00a7 2.\nThe Commission applied section 11-9-525 (b)(5) and held that Stucco must pay at the total disability rate for the 58.5-week period. In addition to section 11-9-525 (b)(5), the Commission also relied on what it described as the public policy of protecting the Second Injury Trust Fund\u2019s solvency. The Commission\u2019s reasoning for its interpretation of section 11-9-525 was flawed, and its consideration of the Fund\u2019s solvency was misplaced.\nThe Commission reasoned that but for the June 1990 injury and the corresponding 13% disability, Rose would not be permanently disabled, and, therefore, Stucco should be responsible for 13% of the total disability. The Commission thus held that Stucco\u2019s share of Rose\u2019s benefits was $226.11, the total disability rate, for 58.5 weeks, the time period for Rose\u2019s permanent partial disability benefits. The Commission\u2019s \u201cbut for\u201d reasoning is flawed because it completely disregards section ll-9-525(b)(5)\u2019s requirement that when permanent total disability results from a previous injury combined with a last injury, \u201cthe employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself.\u201d (Emphasis added.) The aforementioned \u201cbut for\u201d reasoning by the Commission does not consider the last injury alone and of itself but includes the last injury and its contribution to the total disability. Section 11-9-525 (b)(5) clearly and unambiguously prohibits such consideration of the total disability when determining the employer\u2019s liability for benefits.\nThe Commission also reasoned that Stucco would be receiving a windfall if the Fund were held liable for the difference. The Commission\u2019s \u201cwindfall\u201d reasoning is also flawed. Stucco is not avoiding any liability for any injury that occurred when Rose was employed at Stucco. Likewise, the Fund is not liable for any injury that occurred when Rose was employed at Stucco. Therefore, Stucco does not gain anything, much less a windfall.\nThe Commission\u2019s reliance on what it called the public policy of protecting the solvency of the Fund is misplaced for several reasons. Initially, there is simply no evidence in this record of the Fund\u2019s solvency or insolvency, and therefore any concern in that regard is premature. Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988). Moreover, in Mid-State Constr. Co. this court cited with approval Justice Newbern\u2019s dissent in McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), which pointed out that the court of appeals\u2019 reference to language from Arkansas Workmen\u2019s Compensation Comm\u2019n v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950) on consideration of the Fund\u2019s solvency came from the Commission and not from this court. Secondly, we note that the funding mechanisms provided for the Fund in 1950 by Ark. Stat. Ann. \u00a7 81-1313(f)(2)(iii) (Supp. 1949) were remarkably different from the current funding mechanisms provided in Ark. Code Ann. \u00a7\u00a7 11-9-301 to -307 (Repl. 1996). This difference in funding sources underscores that any consideration of the Fund\u2019s solvency in this case is inappropriate. Finally, we note that, in the event the Fund becomes insolvent, the General Assembly has expressed an intent to provide claimants with arrearages once the Fund regains its solvency, without any possibility of reverter of responsibility for benefits to employers. Section 11-9-301 (f).\nThe Second Injury Trust Fund relies on the second sentence of section 11-9-525(b)(5) and argues that the language \u201cin addition to the compensation for which the employer is Hable and after the completion of payment of compensation by the employer,\u201d means that the Fund\u2019s liability does not begin until \u201cafter\u201d the end of the 58.5 weeks, therefore Stucco must pay the total disability rate for the 58.5 weeks. The Second Injury Trust Fund maintains that the statute does not contemplate concurrent payments by an employer and the Fund. Such a constrained interpretation of a statute is not necessary when the language of the statute is clear and unambiguous, because we give the language of a clear and unambiguous statute its plain and ordinary meaning. McGee v. Amorel Pub. Sch., 309 Ark. 59, 827 S.W.2d 137 (1992).\nWhen a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); Southern Sur. Co. v. Dardanelle Rd. Improvement Dist. No. 1, 169 Ark. 755, 276 S.W. 1014 (1925). It is clearly expressed in section 11-9-525 that the purpose of the Fund is to fully compensate an employee for his total injuries while simultaneously protecting employers from having to pay for injuries that did not occur while the employee was working for that employer. That the employer is not to be held hable for a greater disability than actually occurred while the worker was in that employer\u2019s employment is mentioned in the statute no less than four times. Moreover, the statute clearly and unambiguously provides for the Second Injury Trust Fund to make up the balance of the employee\u2019s total benefits and the employer\u2019s share when it states that the \u201cfund pays the worker the difference between the employer\u2019s liability and the balance of his disability or impairment which results from all disabilities or impairments combined.\u201d (Emphasis added.)\nIn short, the Fund\u2019s argument in support of the Commission\u2019s interpretation of the statute is without merit. Section ll-9-525(b)(5)\u2019s language simply does not prohibit payments from both an employer and the Fund within the same period. . The words \u201cin addition to\u201d and \u201cafter\u201d payment of the employer\u2019s liability do nothing more than signal the possibility that an employee who is totally disabled from more than one injury could receive benefits concurrently from both the employer and the Fund without violating the statutory maximum benefits for total disability. That the employer is not liable for the total disability rate is patently clear from the use of the word \u201cremainder\u201d in the last clause of the subsection \u201cthe employee shall be paid the remainder of the compensation that would be due for permanent total disability . . . out of the fund.\u201d\nWe interpret section 11-9-525 (b)(5) to mean that Stucco\u2019s liability for Rose\u2019s benefits is limited to the injury occurring in June 1990 considered alone and of itself, and therefore, Stucco\u2019s liability is at the permanent partial disability rate of $169.59 for 58.5 weeks. We further interpret section 11 \u2014 9\u2014 525(b)(5) to mean that, after Stucco pays its weekly liability, the Fund must pay the balance of Rose\u2019s total disability benefits, or $56.52 per week for the 58.5 weeks. There is no dispute that the Fund is responsible for the full $226.11 per week thereafter.\nAttorney\u2019s Fees\nStucco argues that the Commission\u2019s award of fees based upon Stucco\u2019s liability for benefits at the total disability rate should be reversed because Ark. Code Ann. \u00a7 ll-9-715(a)(2)(B)(ii) (Repl. 1996) provides that attorney\u2019s fees \u201cshall be allowed only on the amount of compensation controverted and awarded.\u201d This argument has merit.\nWhere an employer demonstrates that it is liable for only a portion of a worker\u2019s present disability within the meaning of Second Injury Fund legislation, attorney\u2019s fees due from the employer should only be computed upon the basis of the amount of the employer\u2019s liability for benefits, not upon the amount of total disability benefits. Buckner v. Sparks Regional Medical Ctr., 32 Ark. App. 5, 794 S.W.2d 623 (1990); Prier Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1988). In short, an employer\u2019s liability for attorney\u2019s fees is limited to the amount of benefits awarded from injuries occurring while the worker was employed by that employer. Given our reversal of the Commission\u2019s decision of the amount of Stucco\u2019s liability for benefits, we also reverse the amount of attorney\u2019s fees assessed against Stucco.\nThe Commission\u2019s decision is reversed, and the case is remanded for entry of an order consistent with this opinion.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: James A. Arnold II and E. Diane Graham, for appellant.", "Lawrence W. Fitting, P.A., for appellee Donald Rose.", "Terry Pence, for appellee Second Injury Fund." ], "corrections": "", "head_matter": "STUCCO PLUS, INC. v. Donald ROSE and Second Injury Trust Fund\n96-256\n938 S.W.2d 556\nSupreme Court of Arkansas\nOpinion delivered February 17, 1997\nShaw, Ledbetter, Hornberger, Cogbill & Arnold, by: James A. Arnold II and E. Diane Graham, for appellant.\nLawrence W. Fitting, P.A., for appellee Donald Rose.\nTerry Pence, for appellee Second Injury Fund." }, "file_name": "0314-01", "first_page_order": 342, "last_page_order": 352 }