{
  "id": 3689690,
  "name": "Candelario M. SIERRA v. GRIFFIN GIN and AG-Comp SIF Claims",
  "name_abbreviation": "Sierra v. Gin",
  "decision_date": "2008-09-25",
  "docket_number": "07-1104",
  "first_page": "320",
  "last_page": "324",
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  "last_updated": "2023-07-14T22:36:09.980592+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Glaze, J., not participating."
    ],
    "parties": [
      "Candelario M. SIERRA v. GRIFFIN GIN and AG-Comp SIF Claims"
    ],
    "opinions": [
      {
        "text": "Jim Gunter, Justice.\nThis appeal arises from an order of the Workers\u2019 Compensation Commission reversing an administrative law judge\u2019s ruling regarding the calculation of Appellant Candelario M. Sierra\u2019s average weekly wage. We affirm the Commission\u2019s decision.\nSierra was a seasonal employee working for Appellee Griffin Gin. Sierra entered into a contract with Griffin Gin to work for a period of nine weeks at a rate of $1,020 per week. On October 3, 2005, Sierra fell while on the job and was injured. Griffin Gin and Appellee AG-Comp SIF Claims (\u201cAG-Comp\u201d), the insurance carrier, are currently paying medical expenses and temporary-total-disability benefits at the rate of $118 per week. The parties agreed to submit the case before the Commission on the record in lieu of a hearing to determine the correct compensation rate for Sierra. Sierra asserted that Griffin Gin\u2019s method used to calculate the average weekly wage (dividing Sierra\u2019s total wage by fifty-two weeks) was unreasonable, and asked the Commission to determine the correct figure based on Arkansas Code Annotated section 11-9-518(c) (Repl. 2002).\nOn July 6, 2006, the ALJ found that Sierra\u2019s average weekly wage was $1,020, entitling him to the maximum compensation rate. The ALJ also awarded attorney\u2019s fees to Sierra. Griffin Gin and AG-Comp then appealed to the Full Commission. On November 28, 2006, the Commission entered an order reversing the decision of the ALJ, stating:\n[I]t would be both unjust and unfair to award the claimant temporary total disability benefits at the maximum compensation rate of $466.00 per week. The claimant was not a regular employee. Rather, the claimant was a seasonal employee contracted to work for the respondent employer for a period of nine weeks.\nThe Commission found that the weekly compensation rate of $118 was just and fair. The Arkansas Court of Appeals reversed. Griffin Gin and AG-Comp sought and were granted review in this court. Upon a petition for review, we consider a case as though it had been originally filed in this court. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).\nFor his first point on appeal, Sierra asserts that the Commission committed error by not calculating his average weekly wage in accordance with the statutory method. Specifically, Sierra contends that, pursuant to Arkansas Code Annotated section ll-9-518(a), his average weekly wage is $1,020, the amount Griffin contracted to pay him for each week of work. He further asserts that neither an employment\u2019s seasonal nor temporary nature is an \u201cexceptional circumstance\u201d sufficient to allow the use of a different formula to calculate the benefits to which the employee is entitled.\nGriffin Gin and AG-Comp respond, arguing that Sierra\u2019s average weekly wage represents an exceptional circumstance and should be calculated pursuant to Arkansas Code Annotated section ll-9-518(c). Specifically, Griffin asserts that the record demonstrates that Sierra failed to meet his burden of proof that he is entitled to the maximum compensation rate of $466 per week and that there is substantial evidence to support the Commission\u2019s finding.\nWe have repeatedly used the following standard in reviewing decisions of the Commission:\nIn appeals involving claims for workers\u2019 compensation, this court views the evidence in a light most favorable to the Commission\u2019s decision and affinns that decision if it is supported by substantial evidence. Substantial evidence exists if reasonable minds could reach the Commission\u2019s conclusion. The issue is not whether the appellate court might have reached a different result from the Commission, but rather whether reasonable minds could reach the result found by the Commission. If so, the appellate court must affirm the Commission\u2019s decision.\nSee Texarkana Sch. Dist., supra.\nArkansas Code Annotated section 11-9-518 (Repl. 2002) provides the following calculation for injured workers\u2019 benefits:\n(a)(1) 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.\n(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and jusdy 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.\nWe have pointed out that Act 796 of 1993 significantly changed the workers\u2019 compensation statutes and the way workers\u2019 compensation claims are to be resolved. See Texarkana Sch. Dist., supra. Now, pursuant to Act 796, we are to strictly construe the workers\u2019 compensation statutes. Id. (citing Ark. Code Ann. \u00a7 ll-9-704(c)(3) (Repl. 2002)).\nIn the present case, while Sierra contends that his average weekly wage should be $1,020 pursuant to section ll-9-518(a), the Commission was asked to determine the correct figure based on section ll-9-518(c). Based upon its finding that Sierra\u2019s claim represented an \u201cexceptional circumstance that does not fall squarely within the confines of prior case law,\u201d the Commission reversed the ALJ\u2019s decision to award increased weekly compensation. The Commission found that this claim was distinguishable from prior cases because Sierra was under contract to work for nine weeks, \u201cversus an unlimited number of weeks throughout the year depending on the weather or other factors, or pursuant to a yearly, renewable contract.\u201d See Gill v. Ozark Forest Prods., 255 Ark. 951, 504 S.W.2d 357 (1974); Chapel Garden Nursery v. Lovelady, 47 Ark. App. 114, 885 S.W.2d 915 (1994). The Commission concluded that it would be unjust and unfair to award the claimant temporary total disability benefits at the maximum compensation rate of $466 per week because he would receive more disability benefits after twenty weeks than he was contracted to earn in nine weeks.\nBased on our standard of review and the record before us, we must affirm the Commission\u2019s decision. See Texarkana Sch. Dist., supra. We cannot say that reasonable minds could not reach the Commission\u2019s conclusion that Sierra\u2019s average weekly wage should be computed by dividing the total wage by fifty-two weeks rather than nine weeks. Accordingly, viewing all of the evidence in a light most favorable to the Commission, we affirm on this point.\nFor his second point on appeal, Sierra asserts that the Commission erred by reversing and denying the award of attorney\u2019s fees because neither Sierra nor Griffin Gin or AG-Comp ever raised the issue. Specifically, he contends that the Commission has prejudiced him 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. In response, Griffin Gin and AG-Comp contend that it was proper for the Commission to reverse the award because the ALJ erred in ordering them to pay their proportionate share of attorney\u2019s fees.\nArkansas Code Annotated section 11-9-715 (Repl. 2002) provides for the award of attorney\u2019s fees. This statute does not address the issue of whether, if the award of attorney\u2019s fees is not raised, it is error to reverse the award rather than vacate the award. Sierra was not represented by an attorney when he was in front of the ALJ. He appeared pro se. We do not agree that Sierra has been or will be prejudiced in this situation. Accordingly, we affirm the decision of the Commission.\nAffirmed.\nGlaze, J., not participating.",
        "type": "majority",
        "author": "Jim Gunter, Justice."
      }
    ],
    "attorneys": [
      "The Law Firm of White & White, P.L.C., by: J. Mark White, for appellant.",
      "Friday, Eldredge & Clark, by: BettyJ. Hardy, for appellees."
    ],
    "corrections": "",
    "head_matter": "Candelario M. SIERRA v. GRIFFIN GIN and AG-Comp SIF Claims\n07-1104\n287 S.W.3d 556\nSupreme Court of Arkansas\nOpinion delivered September 25, 2008\nThe Law Firm of White & White, P.L.C., by: J. Mark White, for appellant.\nFriday, Eldredge & Clark, by: BettyJ. Hardy, for appellees."
  },
  "file_name": "0320-01",
  "first_page_order": 344,
  "last_page_order": 348
}