Opinion
CLAIM NO. E901415
ORDER FILED JULY 3, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by the HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
ORDER
This matter comes before the Commission on the claimant's Motion for Sanctions. The claimant seeks immediate payment of overdue benefits and attorney's fees, a statutory penalty, applicable interest, and a contempt citation for alleged non-payment of prior Commission orders. A hearing was held before the Full Commission on June 28, 2001 to determine the amount of benefits that have been paid by the respondents to the claimant pursuant to Full Commission orders filed on August 18, 2000, October 19, 2000, and February 12, 2001. There was no testimony taken at the hearing, and the record consists of Commission Exhibits 1 and 2 offered and received into the record without objection by either party. The claimant also proffered an additional exhibit labeled Claimant's Proffered Exhibit 1, which we have not considered.
The relevant facts in this case are not in dispute. An Administrative Law Judge filed an opinion on May 17, 2000, finding in part that the claimant is entitled to temporary partial disability benefits for the period from March 1, 1999 through June 23, 1999. Based on the Administrative Law Judge's method for calculating the claimant's benefits for temporary partial disability, he directed the respondents to pay the claimant $326.70 for that period. In an opinion filed on August 18, 2000, the Full Commission affirmed the Administrative Law Judge's finding that the claimant is entitled to temporary partial disability benefits from March 1, 1999 through June 23, 1999. However, the Full Commission found that the Administrative Law Judge miscalculated the claimant's average weekly wage at the time of her injury, and that the claimant's compensation rate should have been based on a 42 ½ work week instead of the actual number of hours per week that the claimant worked prior to her injury. Subsequently, in an order filed on October 19, 2000, the Full Commission awarded the claimant's attorney an attorney's fee of $250.00 for prevailing in part in the Full Commission opinion filed on August 18, 2000.
The respondents tendered the claimant a check in the amount of $152.70 on November 21, 2000. Correspondence by Misty Thompson, Claims Specialist for Risk Management Resources, indicates that the check was in an amount equal to the Administrative Law Judge's award of $326.70 less $174.00 in attorney's fees that the claimant owed to her attorney out of the benefits awarded. On that same date, the respondents paid the claimant's attorney $348.01, representing both halves of the one-half attorney's fee of $174.00 owed by both the respondent and the claimant to the claimant's attorney.
The claimant filed another Motion for Reconsideration in November of 2000 seeking payment of transcript costs, and seeking recalculation of prior benefits based on the correct average weekly wage. By order dated February 12, 2001, the Full Commission granted in part the claimant's Motion for Reconsideration. The Full Commission directed the respondents to pay the claimant the difference between benefits previously paid for temporary total disability and permanent anatomical impairment at an incorrect compensation rate calculated by the respondents, and the amount which would have been due to the claimant had the respondents correctly calculated the claimant's compensation rate based on a 42 ½ hour work week. In addition, the respondents were ordered to pay the claimant's attorney the maximum attorney's fee for controversion on all benefits awarded in the Commission's August 18, 2000 and February 12, 2001 opinions.
This record leads to the following conclusions. The respondents have paid the claimant the $326.70 directed by the Administrative Law Judge less attorney's fees. The respondents have also paid to the claimant's attorney the attorney's fees ordered by the Full Commission on October 19, 2000, and an attorney's fee on the $326.70 awarded by the Administrative Law Judge in his May 17, 2000 opinion. However, the fee that the respondents have paid to the claimant's attorney does not include an attorney's fee on the additional money which should have been paid to the claimant under the Full Commission's August 18, 2000 opinion which directed the respondents to recalculate the temporary partial disability awarded. Moreover, we note that the respondents did not appeal, did not file a timely motion for clarification, and did not pay that portion of the Full Commission's August 18, 2000 opinion directing the respondents to recalculate the claimant's temporary partial disability award based on a 42 ½ hour work week. Likewise, we note that the respondents did not appeal, did not file a timely motion for clarification, and did not pay any of the additional benefits awarded by the Full Commission for temporary total disability compensation, compensation for permanent anatomical impairment, interest or attorney's fees ordered in the Full Commission's February 12, 2001 Order of Reconsideration.
FINDINGS
We find that the claimant is entitled to immediate payment of the benefits awarded by the Full Commission in our opinions filed on August 18, 2000 and on February 12, 2001, and that the respondents are entitled to a credit against that liability based on the $326.70 less attorney's fees that the respondents paid to the claimant on November 21, 2000. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996). We find that the claimant is entitled to a 20% penalty pursuant to Ark. Code Ann. § 11-9-802(c) on the additional temporary partial disability benefits, temporary total disability benefits, and benefits for permanent anatomical impairment awarded again herein, since these benefits were clearly not paid within 15 days after they became due pursuant to the terms of Full Commission awards filed on August 18, 2000 and February 12, 2001. We find that the respondents have controverted these unpaid benefits a second time and therefore owe a second controverted attorney's fee based thereon. See Tyson Foods, Inc. v. Fatherree, 16 Ark. App. 41, 696 S.W.2d 782 (1985). Consequently, we find that the claimant's attorney is entitled to a second attorney's fee at the maximum rate allowed by law pursuant to Ark. Code Ann. § 11-9-715(a) (Repl. 1996).
Ark. Code Ann. § 11-9-706(b) provides:
If any person or party in proceedings before the commission disobeys or resists any lawful order or process, . . . or refuses to comply with any final order of an administrative law judge or the commission, . . . then said person or party, at the discretion of the administrative law judge or the commission, may be found in contempt of the commission and may be subject to a fine not to exceed ten thousand dollars ($10,000).
We find that the respondent parties, McDonald's of Benton and Risk Management Resources, have refused without justification to comply with the orders of the Commission dated August 18, 2000 and February 12, 2001, and we find that the respondent parties, McDonald's of Benton and Risk Management Resources, have joint and several liability for a fine of $5,000 pursuant to Ark. Code Ann. § 11-9-706(b). However, we hold in abeyance imposition of the fine, contingent on the respondents promptly paying the claimant within ten working days after receipt of this order the additional benefits, attorney's fees, interest, and penalty directed herein.
In reaching our decision on the contempt request, we note that the dissent suggests that the claimant or the claimant's attorney has some burden to assist the respondent-employer, respondent-third party administrator, and/or the respondents' attorney in calculating the proper benefits to be paid pursuant to Full Commission findings. First, we agree with the claimant's attorney in this case that the claimant and the claimant's attorney have no burden to assist the respondents in calculating the claimant's correct compensation rate based on a 42 ½ hour work week. Second, we note that when the claimant's attorney did offer assistance in making such calculations, the respondents did not accept the claimant's calculations. Third, we point out that the respondents have a burden to pay the benefits awarded by the Commission within 45 days from the date that the respondents receive the order of the Full Commission if the respondents do not appeal the award. See generally Vanessa Daulton v. Gordos of Arkansas, Inc., Full Workers' Compensation Commission, Opinion filed July 23, 1990 (W.C.C. No. D701912). We further note that the respondents' Motion for Clarification in this case was neither timely filed nor indicates that the respondents lack the knowledge to calculate benefits based on a 42 ½ hour work week. To the contrary, paragraph number 5 of the respondents' Motion for Clarification instead asserts that all benefits directed to be paid by the Full Commission in this case have already been paid. For the reasons discussed above, this allegation is clearly incorrect. We take this opportunity to point out that the respondents in this case should have performed their own calculations based on a 42 ½ hour work week and paid the claimant those amounts which the respondents calculated were owed based on a 42 ½ hour work week, so that if the claimant's attorney disagreed with the respondents' calculations, he could seek any additional benefits owed based on allegedly erroneous calculations. In the present case, rather than performing their own calculations and making payments when due, the respondents clearly disregarded at least portions of two Full Commission orders previously filed in this case. Without conceding that the amounts calculated by the dissent in this case are correct, we do point out that even the dissent must feel that there is no particular difficulty in performing the calculations necessary to calculate the claimant's correct compensation rates based on a 42 ½ hour work week. The dissent's calculations obviously belie the dissent's suggestion that there was sufficient difficulty for the respondents in determining how to perform the correct calculations so that the respondents were unable to do so in a timely manner.
We are furnishing a copy of this order to the Director of the Commission's Self-Insurer Division for his use in determining if the respondent should be permitted to continue to enjoy its status as a self-insured employer in view of its disregard of the Commission's orders.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
I agree with the majority that the Commission's Orders should and must be promptly obeyed by all parties before it. However, on the evidence before us in this matter, I cannot conclude that respondents have deliberately acted contrary to the Commission's Orders. Specifically, it is readily apparent from the record of correspondence between the parties now before us (which we previously did not have access to) that both sides made efforts to arrive at a mathematically correct amount of benefits due claimant, in addition to the benefits previously paid to her. I would note that the respondents have also filed a Motion for Clarification on June 22, 2001, that the majority opinion does not mention. In addition, the respondent's attorney sent a letter to the claimant's attorney on April 18, 2001, requesting his help in determining the amount the claimant's attorney contended claimant was owed. I cannot find that respondent acted in bad faith or deliberately delayed the calculations, and I note that claimant did submit in the course of correspondence (between counsel) differing amounts claimed due her. See Commission Exhibit 2, Pages 52, 56-57, 58, 59-63, 65.
I calculate the additional benefits due the claimant as follows:
Claimant's average weekly benefit rate for total disability is $174/week. The claimant's hourly rate of $6.15 was used to calculate her benefits. This is the hourly rate that the Administrative Law Judge found and the Commission affirmed on August 18, 2000. On the date of the injury, January 29, 1999, the wage records in the record also support the finding that the claimant was making $6.15 per hour. I also note that the calculations are based on the claimant working a 42.5 hour week. This is based on the Full Commission's finding in the Opinion issued on August 18, 2000. It is calculated as follows:
$6.15/hr. x 42.5 hours worked per week = $261.38/week
$261 x 66 2/3 = $173.99
Therefore, pursuant to A.C.A. § 11-9-501(b), the claimant's temporary total disability rate is $174. Her permanent partial disability rate is $154/week based upon the provisions of A.C.A. § 11-9-501(d)(1).
Permanent Partial Disability is calculated as follows:
$154 x 9.2 weeks = $1416.80 benefits due
1039.60 paid
$377.20 owed to claimant
Temporary Total Disability Benefits is calculated as follows:
$174 x 14 weeks = $2436.00 benefits due paid ($113 x 14) = 1582.00 paid $ 854.00 owed
This is for the period June 24, 1999, through September 29, 1999.
$174 + 174 + 174 = $522
$522.00 benefits due
— 371.28 paid
$150.72
This is for the period January 30, 1999, through February 21, 1999.
Temporary Partial Benefits were awarded for the period March 1, 1999, through June 23, 1999. They are calculated as follows:
12.5 hours x $6.15/hour = $76.88 (rounded to $77)
$77 x 66 2/3 = $51.33 (rounded to $51.00)
$ 51.00/week x 16.5 hours = $841.50
$841.50 benefits due
326.70 paid
$514.80 owed
I would note that the claimant received a check for $152.70 due to her portion of attorney's fees being deducted.
Summary:
Temporary Total Disability Benefits owed — $854.00
Permanent Partial Disability Benefits owed — 377.20
Temporary Partial Disability Benefits owed — 514.80
$1,746.00
A total of $1746.00 is owed claimant plus interest, less attorney fees.
It seems to me that directing respondents in effect to pay an additional amount of benefits, without specifying the amount itself, would simply leave the parties right where they were before this hearing — a result that neither side desires and which would merely prolong this litigation. I would not award penalties or additional attorney's fees as a result of this hearing.
I take this opportunity to reiterate my position that Risk Management Resources is not a proper party to this matter. The employer and insurance carrier, whether the carrier is a self-insured employer, assigned risk provider, or a voluntary market provider, are the proper parties to any workers' compensation case. Risk Management Resources is merely an agent, not independently liable for the acts of its principal, presumably a self-insurer which is not a party. This Commission should not direct or suggest action against any person not a party.
Therefore, I respectfully dissent from the majority opinion.
____________________________ MIKE WILSON, Commissioner