United States Fidelity & Guaranty Co. v. Potter

567 S.W.2d 104, 263 Ark. 689, 1978 Ark. LEXIS 2068

• Court: Supreme Court of Arkansas
• Decided: June 19, 1978
• Docket: 77-418
• Status: Published

Opinions

Conley Byrd, Justice.

Appellee David J. Potter, attorney for Emma J. Young was awarded the maximum attorney’s fee on the worker’s compensation total disability claim of Emma J. Young. Emma J. Young is being paid weekly benefits of $43.68 for the remainder of her life. This litigation ensued when appellee filed a petition requesting that the remaining portion of his fee be paid in a lump sum equal to ten percent of all compensation to be paid to Emma J. Young for the rest of her life as determined under applicable mortality tables. Notwithstanding, the medical proof showing that Emma J. Young, because of the nature of her injuries, was not expected to live a normal life span for a woman of 53 years, the Commission using the standard mortality table ordered appellant United States Fidelity and Guaranty Company to pay a lump sum attorney’s fee in the amount of $2,898.96. The circuit court affirmed. Appellant appeals raising the sole issue of whether appellee is lawfully entitled to be paid a lump sum attorney’s fee when the claimant is being paid her compensation periodically in compliance with the provisions of the workers’ compensation law.

To sustain the action of the Commission, appellee relies upon Ark. Stat. Ann. § 81-1332 (Repl. 1976) and Ark. Stat. Ann. § 81-1319(k) (Repl. 1976). The first statute § 81-1332, supra, provides that “. . . the Commission shall direct that fee [fees] for legal services be paid by the employer or carrier in addition to compensation awarded, and such fee [fees] shall be allowed only on the amount of compensation controverted and awarded. . . .” Section 81-1319(k), supra, merely provides for lump sum settlements “Whenever the Commission determines that it is for the best interest of the parties entitled to compensation. . . .”

In the case of Emma J. Young, the only compensation awarded is weekly benefits, consequently, it follows that the Commission had no statutory authority to direct that an attorney’s fee be paid on the basis of a lump sum award. Since the award and assessment of an attorney’s fee against the employer or carrier is purely statutory, we must hold that the Commission erred in awarding a lump sum fee.

Reversed and remanded.

Hickman and Howard, JJ., dissent.