Randy E. Lewis v. Auto Parts & Tire Co., Inc., Fliteline Motors, Zenith Insurance Co., Second Injury Fund, and Death and Permanent Total Disability Trust Fund
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CA08-687
RANDY E. LEWIS,
Opinion Delivered
DECEMBER 31, 2008
APPELLANT
V.
AUTO PARTS & TIRE CO., Inc.,
FLITELINE MOTORS, ZENITH
INSURANCE CO., SECOND INJURY
FUND, and DEATH AND PERMANENT
TOTAL DISABILITY TRUST FUND,
APPELLEES
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION,
[F109650, F412000]
REVERSED AND REMANDED
KAREN R. BAKER, Judge
1.
WORKERS’ COM P ENSATION – PAYM ENT OF LUM P- SUM ATTORNEY FEE WAS AUTHORIZED BY
ARK . C O D E ANN. § 11-9-716.– Arkansas Code Annotated section 11-9-716 authorized the
Workers’ Compensation Commission to award a lump-sum attorney fee to be paid by appellee
Second Injury Fund; the Commission mistakenly determined that because the claimant’s benefits
were to be paid in installments throughout his lifetime, the amount of claimant’s benefits were
unascertainable; as a result, the amount of claimant’s attorney fee was also unascertainable; the
Commission misinterpreted Seward v. The Bud Advents Co., which was a mistake of law; the
holding in Seward permits the Commission to award a lump sum of fees chargeable to an
employer; because it is clear that the Second Injury Fund stands in lieu of the employer, the
Commission can also award a lump sum of fees from the Second Injury Fund.
2.
WORKERS’ COM PENSATION – STATUTORY CONSTRUCTION – AWARD OF LUM P- SUM ATTORNEY’S
FEE PERM ITTED BY STATUTE.– The award of a lump-sum attorney’s fee pursuant to Ark. Code
Ann. § 11-9-716 against appellee Second Injury Fund was not limited by the language in Ark.
Code Ann. § 11-9-804 to be applied to employers only; the language of section 11-9-716 is not
limited to employers; it does not mention employers or any other respondent by name; rather, the
statute only indicates that the Commission is authorized to approve lump-sum attorney fees; the
appellate court held that the statute included attorney fees owed by appellee Second Injury Fund;
therefore, pursuant to Ark Code Ann. § 11-9-716, claimant’s attorney was entitled to a lump-sum
fee for legal services owed to him by appellee Second Injury Fund.
Stephen M. Sharum, for appellant.
David B. Simmons, for appellee Second Injury Fund.
Randy Lewis appeals from a decision by the Workers’ Compensation Commission, which reversed
the ALJ and found that pursuant to Arkansas Code Annotated section 11-9-716 (Repl. 2002), appellant’s
attorney was not entitled to a lump-sum attorney fee to be paid by the Second Injury Fund. On appeal,
Lewis asserts that Arkansas Code Annotated section 11-9-716 authorizes the Commission to award a
lump-sum attorney fee to be paid by the Second Injury Fund. We agree and reverse and remand the
Commission’s decision.
The error in this case is derived from the Commission’s misinterpretation of this court’s holding in
Seward v. The Bud Advents Co., 65 Ark. App. 88, 985 S.W.2d 332 (1999), and the Commission’s
misinterpretation of the meaning of the relevant statutes. Lewis contends that the Commission’s opinion
is based on the false conclusion that the amount of the attorney’s fee is “unascertainable” since the amount
of payments to the claimant are unascertainable. We agree. The Commission mistakenly determined the
following: that because the claimant’s benefits were to be paid in installments throughout his lifetime, the
amount of claimant’s benefits were unascertainable; as a result, the amount of claimant’s attorney fee was
also unascertainable. Relying on the language in Seward, the Commission concluded that because the
amount of fees was unascertainable, then the Commission could not award a lump-sum attorney fee. That
is not the holding in Seward. In Seward, this court held that it was the intention of the legislature to enable
the Workers’ Compensation Commission to approve the lump-sum payment of attorney’s fees chargeable
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to the employer while providing for installment payments of the portion of the attorney’s fees chargeable
to the injured employee or the injured employee’s dependents; in such a situation the portion of the fee to
be paid in installments by the injured employee or the injured employee’s dependents should not be
discounted since it is not being received by the attorney in a lump sum. Seward, 65 Ark. App. at 95, 985
S.W.2d at 335. The Commission’s misinterpretation of Seward was a mistake of law. We do not defer
to the Commission on questions of law. See Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App.
215, 137 S.W.3d 421 (2003) (citing Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841
(1983)).
Based on this court’s holding in Seward, the Commission may approve the lump-sum payment of
attorney’s fees chargeable to the employer. The purpose of the Second Injury Fund was “designed to
ensure to an employer employing a worker with a disability will not, in the event that the worker suffers an
injury on the job, be held liable for a greater disability or impairment than actually occurred while the
worker was in his or her employment.” Ark. Code Ann. § 11-9-525 (Repl. 2002). The stated public
purpose of the establishment of the Fund is to encourage employment of handicapped or disabled workers
by assigning liabilities for the wage-loss consequences of a second injury to the Fund. Rice v. Georgia
Pacific Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000). In essence, the Second Injury Fund was
created to stand in lieu of the employer and assume responsibility for any liability. Seward holds that the
Commission can award a lump-sum of fees chargeable to an employer; because it is clear that the Second
Injury Fund stands in lieu of the employer, the Commission can also award a lump-sum of fees from the
Second Injury Fund.
Lewis also contends that the award of a lump-sum attorney’s fee pursuant to Arkansas Code
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Annotated section 11-9-716 against the Second Injury Fund is not limited by the language in Arkansas
Code Annotated section 11-9-804 to be applied to employers only. This presents us with an issue of
statutory interpretation. This court reviews issues of statutory construction de novo, as it is for this court
to decide what a statute means. Johnson v. Bonds Fertilizer, Inc., 365 Ark. 133, 226 S.W.3d 753
(2006) (citing MacSteel v. Ark. Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005)). Arkansas
Code Annotated section 11-9-704(c) (Repl. 2002) requires that we construe workers’ compensation
statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed,
and its doctrine is to use the plain meaning of the language employed. American Standard Travelers
Indem. Co. v. Post, 78 Ark. App. 79, 77 S.W.3d 554 (2002). The basic rule of statutory construction,
to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Teasley v.
Hermann Companies, Inc., 92 Ark. App. 40, 211 S.W.3d 40 (2005). When a statute is clear, however,
it is given its plain meaning, and the appellate court will not search for legislative intent; rather, that intent
must be gathered from the plain meaning of the language used. Id. A statute is ambiguous only where it is
open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable
minds might disagree or be uncertain as to its meaning. Id. In considering the meaning of a statute, we
construe it just as it reads, giving the words their ordinary and usually accepted meaning in common
language. Id. (citing American Standard Travelers Indem. Co., supra). The statute should be construed
so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every
word in the statute if possible. Id.
Pursuant to Arkansas Code Annotated section 11-9-715(a)(2)(A) (Repl. 2002), the Commission
can award fees for legal services to be paid from the fund when a claim has been controverted. Section
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11-9-716(a) (Repl. 2002) provides that the Commission is authorized to approve lump-sum attorney’s fees
for legal services rendered in respect to a claim. The lump-sum attorney’s fees are allowed even though
the claimant is to be paid on an installment basis. Ark. Code Ann. § 11-9-716(b) (Repl. 2002). The
statute also indicates that any approved fee is to be discounted at a rate provided in Arkansas Code
Annotated section 11-9-804 (Repl. 2002). Ark. Code Ann. § 11-9-716(c). Arkansas Code annotated
section 11-9-804 (Repl. 2002) merely provides the method by which the lump sum should be calculated
based on life expectancy tables and the discount rate stated.
Section 11-9-715 and section 11-9-716 should be read in conjunction. See International Paper
Co. v. McBride, 12 Ark. App. 400, 678 S.W.2d 375 (1984) (holding that the legislature intended section
11-9-716 and section 11-9-715 to be read in conjunction with one another and saw no conflict between
the two statutes; the legislature felt strongly that the Commission should be able to award lump-sum
attorney’s fees). The language of section 11- 9- 716 is not limited to employers; it does not mention
employers or any other respondent by name. Rather, the statute only indicates that the Commission is
authorized to approve lump-sum attorney fees. We hold that the statute includes attorney fees owed by
the Second Injury Fund. Therefore, pursuant to Arkansas Code Annotated section 11-9-716, claimant’s
attorney is entitled to a lump-sum attorney fee for legal services owed to him by the Second Injury Fund.
Both the Commission and appellee cite to Second Injury Fund v. Furman, 336 Ark. 10, 983
S.W.2d 923 (1999). The court in Furman held that a claimant could not recover attorney fees after
prevailing on appeal against the Second Injury Fund in the absence of express statutory authority. We
conclude that the holding in Furman does not control the issue presented in this case. In Furman the
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court was addressing a different statutory section—namely Ark. Code Ann. § 11-9-715(b)(1)—and the
holding applied to recovery of attorney fees after prevailing on appeal to this court. Here, the issue is the
availability of lump-sum fees for an attorney’s work in the proceedings before the ALJ and the Commission.
Pursuant to the statutory authority discussed above, we find that the Commission can award a
lump-sum attorney fee from the Second Injury Fund in this case. Therefore, we reverse and remand for
the Commission to enter an opinion in accord with this opinion.
Reversed and remanded.
BIRD and MARSHALL, JJ., agree.
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