Arkansas Game & Fish Commission v. Gerard

2017 Ark. App. 523, 530 S.W.3d 887, 2017 Ark. App. LEXIS 613
CourtCourt of Appeals of Arkansas
DecidedOctober 18, 2017
DocketCV-17-59
StatusPublished
Cited by2 cases

This text of 2017 Ark. App. 523 (Arkansas Game & Fish Commission v. Gerard) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkansas Game & Fish Commission v. Gerard, 2017 Ark. App. 523, 530 S.W.3d 887, 2017 Ark. App. LEXIS 613 (Ark. Ct. App. 2017).

Opinions

BART F. VIRDEN, Judge

| tThe Arkansas Game & Fish Commission (AG&F) appeals the Arkansas Workers’ Compensation Commission’s decision requiring it to pay one hundred percent of the attorneys’ fees resulting from additional benefits awarded to Gerard. We reverse.

I. Factual History

Between 2002 and 2013, Oscar Gerard, an employee of AG&F, underwent various medical procedures related to a compensa-ble back injury he sustained while at work. On February 19, 2014, Gerard’s treating back surgeon declared that Gerard had attained maximum medical improvement with 16 percent impairment. AG&F accepted liability for the 16 percent impairment rating and a 10 percent wage loss. Two other doctors independently evaluated Gerard, and both opined that his impairment rating was 23 percent to the body as a whole. AG&F accepted the 23 percent impairment rating.

Subsequently Gerard filed a claim in which, among other things, he argued that he was entitled to permanent partial-disability benefits in excess of 10 percent due to the 7 | percent increase in his impairment rating, he was entitled to additional temporary total disability benefits, and AG&F should not be entitled to any offset pursuant to Ark. Code Ann. § 11-9-411 (Repl. 2012).

After the hearing on December 22, 2015, the administrative law judge (ALJ) decided partially in Gerard’s favor and found that Gerard had established that he is entitled to a 35 percent wage-loss disability award, but that AG&F was allowed to take credit for the previous 10 percent wage loss paid. The ALJ found that AG&F was entitled to the offset provided for in Ark. Code Ann. § 11-9-411 because “it appears to this examiner that Mr. Gerard’s Arkansas Public Employment Retirement System (APERS) retirement benefits rate of $2,424.67 to $2,479.79 per month would far exceed his workers’ compensation benefit rates of $277.00 or $369.00 per week.” The ALJ also found that the attorneys for the parties were entitled to a 25 percent fee on the indemnity benefits awarded to Gerard “one-half of which is to be paid by the claimant and one-half to be paid by the respondents in accordance with Ark. Code Ann. § ll-9-715[.]”1 AG&F promptly tendered its half of the of attorneys’ fees.

On April 18, 2016, Gerard filed a motion to enforce payment of the attorneys’ fees. Gerard explained that his disability retirement compensation exceeded the award of additional benefits, and the offset depleted the “payable benefits” from which the attorneys’ fees should be paid. Gerard argued that he effectively never received any compensation, and because Ark. Code Ann. § ll-9-715(a)(2)(B)(i) requires that Gerard’s payment of attorneys’ | ¡¡fees must come from any benefits he was awarded, AG&F must pay the remaining half of the fees. Gerard stated that

[t]hus, respondent is required to pay the claimant’s 1/2 share of the attorney’s fee owed and then withhold such an amount from compensation it pays to the claimant, if any. If, as in this case, respondent (because of the offset) ends up paying no compensation to the claimant, then respondent would be entitled to deduct the claimant’s ½ share of the fee from any future benefits that may become payable to the claimant.

Essentially Gerard argued that he should not be required to pay his attorneys’ fees out of his own pocket when the statute directs that the fees be deducted from the payable benefits.

AG&F responded that , this it had made payment of half of the attorneys’ fees to the proper entities, and despite the unfortunate offset, Ark. Code Ann. § 11-9-715(a)(2)(B)(i) requires that Gerard be responsible for his half of the attorneys’ fees out of his own pocket if necessary. (Add. 40-1)

The ALJ acknowledged that is a case of first impression and that neither the Commission nor the courts had directly addressed which statute, had priority over the other. The ALJ explained that “neither Section 411 nor Section 715 is unclear ■in any relevant way except that both statutes are silent and,therefore ambiguous as to which statute applies first to an award of benefits in a controverted claim.”- The ALJ found that “deduction of the claimant’s one-half of the controverted attorneys’ fees out of compensation payable to the claimant under Arkansas Code Annotated section ll-9-715(a)(2)(B)(i) precedes any reduction' in benefits provided for under Arkansas Code Annotated section 11-9-411(a)(l).” (Add. 48) The ALJ ordered AG&F to pay the claimant’s one-half of the fees to the attorney out of the benefits awarded to the claimant. The ALJ based its decision on public policy that Lenables “an injured worker to obtain the services of an attorney for resolution of a controverted claim.” The ALJ also noted that

in a controverted claim such as this where APERS did not assist in the litigation, there could be no money for a third party payer to recover but for the efforts of the claimant’s attorney in obtaining the award of benefits. I also note that subordinating the benefits reduction to that of the attorney does not reduce any contractual debt that Mr. Gerard might owe to APERS for double recovery. APERS may still recoup any unpaid portion of its overpayment from Mr. Gerard through any other means of permanent disability benefits!)]

AG&F appealed to the full Commission, and the Commission affirmed and adopted the ALJ’s decision, AG&F filed a timely notice of appeal.

On appeal AG&F raises two issues: (1) whether the full Commission erred in its interpretation of Ark. Code Ann. § 11-9-715 by requiring AG&F to pay the'full amount of the attorneys’ fees from the additional benefits awarded,, but not paid, to Gerard; and (2) whether the full Commission erred when it found that the General Assembly intended the attorneys’ fees awarded pursuant to. Ark. Code Ann. § 11-9-715 to have priority over the offset provided-for in Ark. Code Ann. § 11-9-411. .

II. Standard of Review. and Applicable Law ■

Typically, this court reviews decisions of the Commission "using the substantial-evidence standard of review. J.M.E. v. Valley View Agri Sys., Inc., 2016 Ark. App. 531, at 5, 505 S.W.3d 211, 214. However, the facts here are undisputed, and this court is reviewing the interpretation and application of two statutes. ■ The question of the correct application of a statute is a question of law, which this court decides de novo. In deciding what a statute means, the interpretation of a statute by the agency charged with its execution is highly | ¿persuasive and, while not binding on this court, will not be overturned unless it is clearly wrong. Brigman v. City of W. Memphis, 2013 Ark. App. 66, at 2-3, 2013 WL 457909,

Arkansas Code- Annotated section ll-9-704(c)(3) requires strict construction of the provisions of the Workers’ Compensation Act. Strict construction is narrow construction and requires that nothing be taken as intended that is not clearly expressed. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, at 4-5, 424 S.W.3d 881, 885. The doctrine of strict construction requires this court to use the plain meaning of the language employed. Id.

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Related

Ark. Game & Fish Comm'n v. Gerard
541 S.W.3d 422 (Supreme Court of Arkansas, 2018)
Arkansas Game & Fish Commission v. Gerard
2017 Ark. App. 523 (Court of Appeals of Arkansas, 2017)

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Bluebook (online)
2017 Ark. App. 523, 530 S.W.3d 887, 2017 Ark. App. LEXIS 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkansas-game-fish-commission-v-gerard-arkctapp-2017.