CLAIM NO. E014876
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 24, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GUY BRINKLEY, Attorney at Law, Piggott, Arkansas.
Respondent No. 1 represented by HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.
ORDER
This matter comes before the Full Commission on motions for reconsideration filed by the claimant and the Death and Permanent Total Disability Trust Fund (hereinafter “The Trust Fund”) of a Full Commission opinion and order filed in this case on April 4, 2001. In that opinion and order, we directed The Trust Fund to withhold the claimant’s portion of his attorney’s fee and pay same by separate check directly to the claimant’s attorney with respect to all future indemnity compensation payable to the claimant by The Trust Fund. In addition, we directed The Trust Fund to release to the claimant’s attorney those monies which the Administrative Law Judge ordered The Trust Fund to begin withholding prospectively for the benefit of the claimant’s attorney beginning on September 7, 1999. With regard to the attorney’s fee which accrued to the claimant’s attorney for the period between October, 1998, when The Trust Fund took over payment and September 7, 1999, when the Administrative Law Judge first directed The Trust Fund to withhold attorney’s fees prospectively, we directed The Trust Fund to also withhold from the claimant’s future indemnity benefits and pay by separate check to the claimant’s attorney, at a weekly rate of withholding mutually agreeable between the claimant and his attorney, an amount equal to the attorney’s fee which the claimant’s attorney should have received out of benefits paid by The Trust Fund to the claimant between October 2, 1998 and September 7, 1999.
In its motion for reconsideration, The Trust Fund advises that the Fund never began withholding an attorney’s fee prospectively as directed by the Administrative Law Judge on September 7, 1999. Therefore, there is no money to release to the claimant’s attorney as directed in our April 4, 2001 opinion and order. The claimant and his attorney advise in their motion for reconsideration that the claimant’s attorney has consulted with the claimant, that the claimant feels that he has already paid the claimant’s attorney enough money, so that the two cannot agree on an amount for The Trust Fund to deduct from the claimant’s future benefits to pay the claimant’s attorney for the period from October 2, 1998 until September 7, 1999. In addition to these motions for reconsideration, The Trust Fund has filed a notice of appeal to the Arkansas Court of Appeals of our opinion and order filed on April 4, 2001.
In light of the information provided by the parties herein, The Trust Fund is directed to immediately begin withholding from the benefits payable to the claimant an amount equal to 6 1/2% of the claimant’s weekly benefits for future disbursement depending on the outcome of The Trust Fund’s appeal to the Court of Appeals. Further, unless our findings are ultimately modified or reversed on appeal, The Trust Fund is also directed to pay to the claimant’s attorney at the conclusion of this litigation a lump sum amount equal to the claimant’s 5% attorney’s fee for controversion which will have accrued during the period beginning October 2, 1998, and continuing through the date that an opinion and order becomes final ending the litigation on the attorney’s fee at issue in this claim. The Trust Fund shall also continue withholding 6 1/2% of the claimant’s weekly benefits (5% for fees accruing each week to the claimant’s attorney and 1 1/2% for The Trust Fund to recoup its lump sum payment made at the conclusion of litigation)for a sufficient period until The Trust Fund has recouped the amount of the lump sum payment made to the claimant’s attorney covering the approximately 2 1/2 year period from October 2, 1998 through the date of this order. Thereafter, The Trust Fund is directed to withhold only 5% of the claimant’s benefits each week and to pay same to the claimant’s attorney by separate check. By our calculation, The Trust Fund should recoup those monies paid to the claimant’s attorney in a lump sum for the period beginning on October 2, 1998 and continuing to the present after approximately eight years of withholding at a rate of 6 1/2% per week. We point out to the claimant, who feels that he has already paid his attorney enough fee in this case, that the excess withholding rate we are directing above the 5% attorney’s fee which the claimant owes to his attorney by law on all benefits at issue is only an additional 1 1/2% of the claimant’s weekly benefits in excess of that 5%. We find that withholding an additional 1 1/2% of benefits for approximately an eight year period to recoup those benefits which were overpaid to the claimant, and which are due to his attorney for services rendered, is fair to all parties involved.
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ MIKE WILSON, Commissioner
________________________________ SHELBY W. TURNER, Commissioner