CLAIM NO. E014876
Before the Arkansas Workers’ Compensation Commission
ORDER FILED FEBRUARY 15, 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 in part and remanded.
ORDER
The Death and Permanent Total Disability Trust Fund [hereinafter “the Fund”] appeals portions of an opinion and order filed by the administrative law judge on September 7, 1999. In relevant part, the administrative law judge ordered the Fund to pay the claimant’s attorney the one-half attorney’s fee owed by the claimant (but not withheld) issued by separate check to the attorney as ordered from October 2, 1998, until the date of this opinion. The administrative law judge also ordered the Fund to withhold and issue by separate check to claimant’s attorney the claimant’s one-half attorney’s fee from all future indemnity benefits. We find that we are constrained to vacate these two findings of the administrative law judge, and to remand this case for additional proceedings.
As regards the current record in this case, we note that the administrative law judge rendered an opinion without a hearing, and that opinion purports to be written based on a record. The file does presently contain some documents which purport to have been made a part of the record after the administrative law judge’s decision, but these documents do not indicate who requested that the documents be made a part of the record, who, if anyone, was notified that the documents would be made a part of the record, and why these documents were, in fact, made a part of the record after the administrative law judge’s decision. Further, the administrative law judge’s decision states that the case was submitted on the record, yet there does not appear to be a copy of any record in this case that we can find that was prepared prior to the administrative law judge’s decision. We further note that the claimant has attached documents to his brief on appeal to the Full Commission to review, which the claimant indicates that the Commission may need to make a ruling in this matter, and the Fund has likewise attached a set of documents to the Fund’s brief on appeal.
The Fund also asserts that the administrative law judge failed to give the Fund adequate notice that the administrative law judge intended to render a decision which affected the rights and liabilities of the Fund. We agree, the only notice that the Fund acknowledges receiving regarding the present claim for attorney’s fees was a July 14, 1999 letter from the claimant’s attorney to the administrative law judge with an attached amended pre-hearing questionnaire. The Fund was not named as a party in the caption of either document, and the Fund was not named in the body of either document. The Fund’s attorney asserts in his brief on appeal that the Fund had no knowledge that a pre-hearing conference was held in this case on July 20, 1999. The documents attached to the Fund’s brief likewise indicate that the Fund sent the administrative law judge a letter on July 28, 1999, stating that the Fund assumed that it had received the claimant’s amended pre-hearing questionnaire for informational purposes only. In light of this procedural history, we find that the administrative law judge’s findings regarding the Fund must be vacated and this case remanded to the administrative law judge to permit both parties to present their evidence and contentions to the administrative law judge, and for the administrative law judge to make findings based on the record developed and the contentions of the parties.
We also have the following observations to assist the administrative law judge and the parties in developing the record and their legal research on remand. The Fund’s contentions in their brief on appeal suggest that the Fund never withholds the claimant’s one-half of attorney’s fees once the Fund takes over payment even where, as here, a Commission order specifically directs the respondents to do so. However, we may be mis-interrupting the Fund’s contentions in this regard, and this appears to be a question of fact for resolution by evidence or stipulation. As we understand the Fund’s contentions, the Fund also asserts in part that an administrative law judge lacks authority to direct that attorney’s fee be withheld from benefits payable to a claimant. The Fund asserts the following grounds in support of the Fund’s contention in the present case: (1) the attorney’s fee statute does not itself direct any party to withhold the claimant’s half of the attorney’s fee from the claimant’s compensation, (2) since the attorney’s fee statute does not direct any party to withhold attorney’s fees from the claimant’s compensation, the Commission has no statutory authority to order that action and (3) even if the Commission has the authority to order the respondents to make the withholding, there is no evidence “in the record” that the Fund was ever provided a copy of the original administrative law judge’s opinion in this case which directed that the attorney’s fee be withheld.
We decline to make any findings on these issues at this time. In addition, we are not aware of any published opinions by the Arkansas Court of Appeals or the Arkansas Supreme Court addressing the Fund’s legal arguments. However, we point out that the Full Commission has somewhat addressed the first two issues previously, and a majority of the Full Commission found that the Commission’s authority and duty to direct a withholding of the claimant’s one-half of the attorney fee from the benefits paid to the claimant is based on Ark. Code Ann. § 16-22-304 (c), the attorney’s lien statute, and not based on Ark. Code Ann. §11-9-715, the attorney’s fee statute. See, Timothy Bales v. DeanMarvel, Full Workers’ Compensation Commission, Opinion filed June 6, 1997 (Claim No. E416692).
Our reasoning in Bales would certainly suggest that the administrative law judge in the present case did have the authority to direct the Fund in her September 7, 1999 order to withhold claimant’s one-half attorney’s fee from all future
indemnity. However, there appears to be an unanswered question of law and fact in this case regarding the administrative law judge’s implied conclusion that the Fund had a duty under a prior administrative law judge’s August 9, 1996 opinion and order to begin withholding an attorney’s fee upon taking over payments starting October 2, 1998. In this regard, we note that the Fund was apparently not a named party-respondent in this case at the time of the prior administrative law judge’s August 19, 1996, opinion and order, and therefore, an issue exists as to whether the Fund was bound by the August 1996 opinion’s direction to the respondents to withhold an attorney’s fee.
However, we remand 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.
IT IS SO ORDERED.
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ELDON F. COFFMAN, Chairman
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MIKE WILSON, Commissioner
Commissioner Humphrey concurs.