CLAIM NO. E300876
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 2, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHEILA CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE J. MICHAEL PICKENS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The respondents appeal an order filed by the administrative law judge on July 18, 1994. In that order, the administrative law judge found that the respondents failed to pay temporary total disability compensation awarded in a previous order for the period extending from March 9, 1993 through December 2, 1993. Consequently, he found that the respondents were liable for a 20% late payment penalty, and he ordered the respondents to pay the compensation awarded. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed.
[6] Then, the administrative law judge made the following statement at the end of the section of the decision labeled “CONCLUSIONS”:7. The claimant was temporarily totally disabled for the periods subsequent to March 9, 1992, during which time he was totally incapacitated as a result of his compensable injury.
[7] Finally, in the section captioned “AWARD” which immediately follows the statement quoted above, the following language is found:. . . It is further my opinion, after a thorough consideration of all of the evidence [in this] record, to include the testimony of the witnesses, and review of the medical evidence, that the claimant was rendered totally incapacitated from engaging in gainful employment for a period of approximately two weeks following his January 22, 1992, compensable injury, and periodically during the period March 9, 1992 through March 1993, and continuously through the period March 9, 1993 through December 2, 1993, or until such time as he reaches the end of his healing period as a result of his compensable injury of January 22, 1992, and March 9, 1992. respondents have controverted this claim in its entirety. [Emphasis added].
[8] Certainly, the administrative law judge’s findings with regard to the periods prior to March 9, 1993, create some confusion since the claimant was not seeking temporary total disability compensation for those periods. However, we find the administrative law judge’s decision with regard to the period which was truly at issue is plain and not subject to misinterpretation. Consequently, we find that the administrative law judge’s March 28, 1994, opinion and order did award the claimant temporary total disability compensation for the period extending from March 9, 1993 through December 2, 1993, and we find that the administrative law judge’s decision in this regard is sufficiently clear to allow the respondents to calculate the amount of compensation owed for this period. Moreover, even if we were to assume that the administrative law judge’s decision with regard to the period at issue was vague and confusing, which we do not, we would find that the language used in the opinion was at least sufficient to alert the respondents that temporary total disability compensation was being awarded for something other than just the period extending from January 23, 1992 through February 7, 1992, which the respondents actually paid. Thus, to the extent the respondents did find the administrative law judge’s decision to be “so vague and confusing so as to make it impossible for the carrier to determine exactly what benefits had been awarded or, alternatively, how those benefits are to be calculated,” their remedy was to file a motion seeking clarification of the administrative law judge’s decision, not to simply ignore the portions of the decision which they found to be vague and confusing. [9] Where indemnity compensation is payable under the terms of an award by the Commission which is not appealed, the first payment of compensation does not become due until the time for appeal has expired. Ark. Code Ann. § 11-9-802(c) (Cumm. Supp. 1993); Ark. Code Ann. § 11-9-711 (1987);Johnson v. American Pulpwood Co, 38 Ark. App. 6, 826 S.W.2d 827 (1992). Thereafter, indemnity compensation is to be paid every two weeks. Ark. Code Ann. § 11-9-802. If any installment of indemnity compensation payable under the terms of an award by the Commission is not paid within fifteen (15) days after it becomes due, Ark. Code Ann. §11-9-802(c) provides for the imposition of a penalty equal to twenty percent (20%) of the installment. Under Ark. Code Ann. § 11-9-802(b), the Commission may excuse late payments of compensation payable without an award after a showing by the employer that, owing to conditions over which it had no control, the installment could not be paid within the prescribed time period. Ark. Code Ann. § 11-9-802(c), which addresses payments payable under an award, does not contain such a provision. [10] Consequently, in the present claim, we find that the temporary total disability compensation for the period extending from March 9, 1993 through December 2, 1993, became due when no timely appeal was taken from the administrative law judge’s decision, and we find that the respondents became subject to the 20% late payment penalty when payment was not made within 15 days thereafter. In addition, we find that the respondents have not presented evidence of any conditions over which it had no control which prevented it from making the payment in a timely manner. Therefore, we find that the respondents are liable for the late payment penalty. [11] Finally, the respondents also contend on appeal that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary total disability compensation for the period extending from March 9, 1993 through December 2, 1993. In this regard, the Arkansas Workers’ Compensation Law allows parties to petition the Full Commission for review of an order or award of an administrative law judge. The applicable statute governing the time for filing an appeal to the Full Commission states the following:Respondents are hereby ordered and directed to pay to the claimant temporary total disability benefits at a weekly compensation benefit rate of $155.69, for the period covering January 23, 1992 and thereafter during which time claimant was totally incapacitated from engaging in gainful employment as a result of his compensable injury [sic] [of] January 22, 1992, and March 9, 1992.
[12] Ark. Code Ann. § 11-9-711(a)(1) (1987). The procedural requirements set forth in Ark. Code Ann. § 11-9-711(a)(1) dare mandatory and jurisdictional, and consequently, must be strictly complied with. Cooper Industrial Products v.Meadows, 5 Ark. App. 205, 634 S.W.2d 400 (1982); Lloyd v.Potlatch Corporation, 19 Ark. App. 335, 721 S.W.2d 670A compensation order or award of an administrative law judge or a single commissioner shall become final unless a party to the dispute shall, within thirty (30) days from the receipt by him of the order or award, petition in writing for a review by the full commission of the order or award.
(1986). Therefore, in the present claim, the decision of the administrative law judge became final when no petition for review was filed within thirty days, as provided in the statute, and the Full Commission cannot now consider this issue. [13] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the respondents are liable for a late payment penalty for temporary total disability compensation owed for the period extending from March 9, 1993 through December 2, 1993. Therefore, we find that the administrative law judge’s order must be affirmed. [14] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809
(1987). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715(b) (1987). [15] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[16] Commissioner Tatum dissents.