CLAIM NO. E014876.
Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 31, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GUY BRINKLEY, Attorney at Law, Piggott, Arkansas.
Respondent No. 1 represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
ORDER
This claim involves a number of legal issues involving a potential duty of the Death and Permanent Total Disability Trust Fund (hereinafter “The Fund”) to send the claimant’s attorney by separate check the claimant’s portion of the attorney’s fees pursuant to orders of administrative law judges filed in 1996 and on March 20, 2000. For the most part, the facts in this case are not in dispute.
However, among the other issues involved, the Fund has raised a procedural due process challenge to any Commission order finding the Fund liable for failing to comply with the attorney’s fee withholding requirement in the administrative law judge’s 1996 order. In this regard, the Fund notes that the Fund was not a normal party to that order, and the Fund has maintained that there is no evidence in the record to establish when the Fund first received notice of the 1996 order. As we understand the Fund’s argument, the Fund maintains that the Fund cannot be held financially liable for failing to withhold the attorney’s fees at issue when the Fund took over payments on or about October 2, 1998, if the Fund had no notice of the 1996 order directing that attorney’s fees be withheld.
In a prior order in this case, we noted that the Fund was not a named party to the 1996 order, and that an unresolved issue exists as to whether the Fund was bound by the 1996 order directing the respondents to withhold the claimant’s portion of the attorney fee awarded therein. We remanded this case to permit the parties to develop the record, to develop the issues, and for the administrative law judge to make findings of fact and conclusions of law thereafter.
As we understand the administrative law judge’s findings on remand, the administrative law judge has concluded that, as a matter of standard procedure, the Fund, by necessity, must have reviewed the 1996 order prior to taking over payments on October 2, 1998. While the administrative law judge’s reasoning may ultimately prove correct, the Fund’s standard procedures are not currently in the record. For its part, the Fund appears to object to the procedure by which the administrative law judge developed the record on remand. In addition, the Fund again argues that there is no evidence in the record as to when the Fund first received notice of the 1996 order, and the Fund asserts that the Fund could have relied on a Form AR-D without actual knowledge of the 1996 order. The Fund’s argument, like the administrative law judge’s finding, appears to be based on the Fund procedures which were not introduced into evidence on remand.
Clearly, the parties have once again failed to develop an adequate record to determine when the Fund received adequate notice of the 1996 order. We therefore remand this case for additional proceedings and findings by the administrative law judge thereafter. On remand, the Fund is directed to either stipulate that the Fund had actual notice of the 1996 order prior to taking over payments on October 2, 1998, or in the alternative, make the Fund’s files, procedures, and personnel available for discovery at the discretion of the administrative law judge.
IT IS SO ORDERED.
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MIKE WILSON, Commissioner
Commissioner Humphrey concurs.