Opinion
No. CA11-825
01-25-2012
JOHN O'HARA APPELLANT v. J. CHRISTY CONSTRUCTION CO., INC., TRAVELERS CASUALTY & SURETY CO., and DEATH & PERMANENT TOTAL DISABILITY TRUST FUND APPELLEES
APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION [E306806]
AFFIRMED
DAVID M. GLOVER , Judge
John O'Hara was injured in the scope and course of his employment in March 1993. Various issues in this workers' compensation case have been the subject of four prior appeals to this court: (1) O'Hara v. J. Christy Constr. Co., CA 98-599 (Ark. Ct. App. Mar. 3, 1999) (unpublished); (2) O'Hara v. J. Christy Constr. Co., 94 Ark. App. 143, 227 S.W.3d 443 (2006); (3) O'Hara v. J. Christy Constr. Co., 101 Ark. App. 212, 272 S.W.3d 842 (2008); (4) O'Hara v. J. Christy Constr. Co., 2010 Ark. App. 685.
In the last case (O'Hara IV), the issue on appeal was whether the Commission erred in deciding that it did not have the authority to order the Death and Permanent Disability Fund (the "Fund") to pay O'Hara's portion of his attorney's fee in a lump sum. This court held that the Commission did have the authority to make such a determination and reversed and remanded the case to the Commission for further proceedings regarding how and in what manner O'Hara's fifty-percent portion of his attorney's fee was to be paid. The Commission remanded the case to the administrative law judge (ALJ), who denied O'Hara's request to have his one-half of the attorney's fees paid in a lump sum by the Fund. The ALJ's decision was affirmed and adopted by the Commission. O'Hara now brings this appeal, arguing that the Commission erred in its denial of payment of his one-half of the attorney's fees in a lump sum because a lump-sum payment was in his best interest. We affirm the Commission's decision.
The pertinent facts of this case were set forth in O'Hara IV:
[O'Hara] and his attorney, Floyd M. Thomas, determined that it was in their collective best interest that appellant's fifty-percent portion of the attorney's fee be paid to Thomas in a lump sum, with the application of the appropriate discount pursuant to Arkansas Code Annotated section 11-9-715 (Repl. 1996) and Arkansas Code Annotated section 11-9-716 (Repl. 1996). The respondent insurance carrier, Travelers Casualty & Surety Co., agreed and has paid its fifty-percent portion of the attorney's fee in a lump sum of $5,670.40, pursuant to an agreed order approved by the ALJ and filed on June 29, 2009. Appellant continues to draw his benefits from the Fund pursuant to Arkansas Code Annotated section 119-502 (Repl. 1996), and the Fund has objected to paying appellant's remaining fifty-percent portion of the attorney's fee in a lump sum rather than the continued $25.12 biweekly payments.2010 Ark. App. 685, at 2.
Because appellant's injury occurred before July 1, 2001, the attorney's fee in question is governed by the provisions of Arkansas Code Annotated §§ 11-9-715 and -716 as they existed prior to the amendments of Act 1281 of 2001.
On remand, the ALJ wrote an extensive and detailed opinion denying O'Hara's request that the Fund pay his portion of attorney's fees in a lump sum, finding:
[E]ven assuming that this examiner has the discretion to order the Fund to pay the claimant's one-half of a lump sum attorney's fee and then recoup that payment over time from the claimant, I respectfully decline to do so in this case where: (1) the Fund risks not recouping a lump-sum payment if the claimant dies or becomes no longer entitled to benefits before the Fund has time to recoup a lump-sum payment, (2) the Fund objects in all regards to paying the claimant's one-half fee in lump sum because of the risk of not recouping the payment, and (3) the claimant's attorney had at least one opportunity in 2008, and apparently a prior opportunity as well, to request the claimant's one-half of a lump sum fee be paid out of the claimant's accrued benefits, but the claimant's attorney waited until fifteen months after the last disbursement of accrued benefits to the claimant before requesting a lump-sum payment of his remaining fees.
We hold that this case is controlled by our court's decision in Ard v. Death & Permanent Total Disability Trust Fund, 2011 Ark. App. 774, handed down on December 14, 2011, after both parties had filed their briefs. In Ard, the employer agreed to pay its one-half share of the attorney's fee in a lump sum, but the Fund, which was paying Ard's portion of the attorney's fees out of the benefits that were being paid to her, did not agree to paying a lump sum, arguing that a lump-sum payment would force it to assume the risk of overpayment if the claimant or her attorney died or for some reason the claimant became ineligible for benefits before the Fund could recoup its lump-sum payment from her benefits. In affirming the Commission's denial of Ard's request that the Fund pay her portion of the attorney's fees in a lump sum, this court held:
There is nothing in section 11-9-716 that requires the Commission to approve a lump-sum payment of the entire amount of an attorney's fee or that prohibits the Commission from approving a plan by which an attorney's fee is paid partly by lump sum and partly in installments. Seward v. The Bud Avants Co., 65 Ark. App. 88, 985 S.W.2d 332 (1999). On appeal, we will not interfere with the Commission's determination on the issue of attorney's fees unless there is an abuse of discretion, Littlejohn v. Earle Industries, 239 Ark. 439, 389 S.W.2d 898 (1965), and abuse of discretion is a high threshold that does not simply require error in the2011 Ark. App. 774, at 3-4.
decision, but requires that the tribunal act improvidently, thoughtlessly, or without due consideration. See Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004). On this record, we cannot say that the Commission abused its discretion in declining to order the appellee Fund to pay appellant's portion of the attorney's fees in a lump sum.
Here, as in Ard, the Fund objected to paying the attorney's fees in a lump sum due to its concern of risk of overpayment before it could recoup the amount paid on behalf of O'Hara. We cannot say that the Commission abused its discretion in denying O'Hara's request for the Fund to pay his portion of the attorney's fees in a lump sum.
Affirmed.
PITTMAN and ROBBINS, JJ., agree.