Myrtle Parks v. Death and Permanent Total Disability Trust Fund

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION III

CA 00-879

March 14, 2001

MYRTLE PARKS APPEAL FROM THE ARKANSAS

APPELLANT WORKERS' COMPENSATION COMMISSION

VS.

DEATH AND PERMANENT TOTAL

DISABILITY TRUST FUND

APPELLEE AFFIRMED

Myrtle Parks sustained a compensable injury on November 10, 1988, while employed by the Van Buren School District. She was given a fifteen percent anatomical impairment rating to the body as a whole. Subsequently the claimant, the school district, and the district's insurance carrier, the Public Employee Claims Division, agreed that she was permanently and totally disabled.

At a hearing held on March 8, 1990, the claimant, the employer, and the carrier stipulated that her weekly compensation rate was $189.00 per week. The issue at that hearing was the extent to which the carrier had controverted the claim.

At a hearing held on July 15, 1999, the present appellee, the Death and Permanent Total Disability Trust Fund, had become a party. It was stipulated that the Public Employee Claims Division had paid benefits totaling $75,000.00. The law judge stated that the issues to be resolved were: (1) the claimant's average weekly wage and compensation rate; and (2) whether the earlier stipulation as to the compensation rate was binding on the Death and Permanent Total Disability Trust Fund. The law judge held that claimant's correct compensation rate was $174.00 per week and that the fund was not bound by the earlier stipulation between the claimant, the employer, and the carrier. The Commission affirmed and adopted the law judges's opinion, and this appeal followed.

Ms. Parks first contends that the Commission erred in fixing her compensation rate. Preliminarily, appellant argues that it was error for the Commission to rely, in part, upon its earlier unpublished opinion. No authority is cited for this proposition, and we know of none.

The more significant argument focuses on the method used to calculate appellant's compensation rate. Ark. Code Ann. § 11-9-518 provides, in pertinent part:

(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 becomputed on less than a full-time workweek in the employment.

. . .

(c) If, because of exceptional circum stances, 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.

Both parties agree that appellant's contract of employment ran from August 22, 1988 through June 9, 1989. There is also no disagreement that her yearly salary was $10,850.00 and that it was to be paid in ten equal payments. The Fund contended, and the Commission agreed, that her compensation rate should be based on 41.71 weeks (the number of weeks between August 22, 1988 and June 9, 1989). The disparity arises because of Ms. Parks's contention that the Commission should have factored in Thanksgiving and Christmas holidays and her spring break. Removing these days from the equation would lead to a total of 191 days of employment and the compensation rate of $189.00 per week. We cannot say the Commission erred. As the Fund points out, Ms. Parks's monthly paycheck did not vary based on the number of days actually worked in a particular month. We cannot say that the method of calcula tion utilized by the Commission was wrong as a matter of law.

Finally, Ms. Parks contends that the Fund should be bound by the earlier stipulation made by the carrier and herself. The lawjudge determined that res judicata did not bar the Fund from litigating the issue. In her argument, appellant notes that collateral estoppel generally bars the parties and their privies from relitigating issues once determined.

Appellant does not explain why the Fund should be treated as being in privity with the carrier. We think the matter is governed by the general rule that one who becomes a party to an action after the making of a stipulation is not bound by the stipulation. Jackson v. Circle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).

For the reasons stated, the decision of the Commission is affirmed.

Affirmed.

Hart and Crabtree, JJ., agree.