CLAIM NO. E416692
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 6, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by RICHARD J. ORINTAS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge denying claimant’s motion for contempt. Based upon our de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that respondent was in contempt for failure to pay claimant’s one-half share of the attorney’s fee.
[4] No where in the Statute does it state that respondent is responsible for withholding claimant’s one-half share of the attorney’s fee out of benefits payable to claimant. In our opinion, we are without authority to hold respondent in contempt for failure to do something which it was never legally obligated to do. While case law has established a precedent for withholding claimant’s one-half share of the attorney’s fees out of future benefits awarded, we do not have authority to require a respondent to withhold a potential attorney’s fee from claimant’s benefits on the off chance that such fees will be awarded. [5] Although Ark. Code Ann. § 16-22-304 (c) provides that attorney’s liens attach in Workers’ Compensation claims when the Commission notifies the employer or carrier of the existence of the claim, fees for legal services are only valid unless approved by the Workers’ Compensation Commission. Moreover, the amount of the fees (or lien) is determined by an order of the Commission pursuant to Ark. Code Ann. § 11-9-715 (1987). Since there is no statutory authority or case precedent for respondent to withhold a potential attorney’s fee from benefits prior to an award of attorney’s fees, claimant’s attorney merely had an inchoate right to a fee in the future. In this case, by the time the award and attorney’s fee was rendered, claimant was no longer receiving and no longer entitled to additional future compensation benefits. Thus, respondent was not obligated to withhold a portion out of the fee from claimant’s benefits, since we are without authority to require fees be withheld prior to fees being awarded. [6] Claimant’s attorney has received all of his fee from respondent to which he is entitled. Respondent has discharged its obligation with regard to claimant’s attorney’s fee. When respondent paid its one-half share of the attorney’s fee pursuant to Ark. Code Ann. § 11-9-715In all other cases whenever the Commission finds that a claim has been controverted . . . the Commission shall direct that fees for legal services be paid to the attorney for the claimant as follows: One-half (1/2) by the employer or carrier in addition to compensation awarded; and one-half (1/2) by the injured employee . . . out of compensation payable to them.
(a)(2)(B)(i) any lien against the award was extinguished. Accordingly, we find that claimant has failed to show respondent should be held in contempt. Therefore, we deny and dismiss this claim. [7] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[8] Commissioner Humphrey dissents.