CLAIM NO. D614536
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 18, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOHN RICHARD BYRD, SR., Attorney at Law, Hamburg, Arkansas.
Respondents represented by the HONORABLE JAMES M. GRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER[2] The respondent appeals an opinion and order filed by the administrative law judge on March 21, 1997. In that opinion and order, the administrative law judge found that the claimant is entitled to a 25% safety violation penalty on all of the claimant’s temporary total disability compensation received, on his compensation for permanent anatomical impairment, and on his compensation for permanent disability benefits in excess of his permanent anatomical impairment. After conducting a de novo
review of the entire record, we find that the claimant is entitled to receive a 25% safety violation penalty on all of the claimant’s permanent and total disability compensation in excess of the 20% anatomical impairment accepted by the respondent prior to the first hearing on this claim, but that the doctrine of res judicata
bars an application of the 25% penalty to the claimant’s temporary total disability compensation or to the 20% anatomical impairment accepted and paid by the respondent prior to the first hearing on this claim. [3] The present litigation was brought by the claimant to enforce an order of the Full Commission dated May 10, 1995. In that order, the Full Commission found in relevant part:
[4] Neither party appealed the Commission’s May 10, 1995, order, and the respondent subsequently paid the claimant for a 25% increase on benefits for a 5% anatomical impairment. This 5% anatomical impairment represented the difference between the degree of anatomical impairment which the respondents accepted and paid (20%) and the degree of anatomical impairment for which the respondents were ultimately held liable (25%). [5] The administrative law judge’s March 21, 1997, order requiring the respondent to pay the claimant a 25% increase on all temporary and permanent disability compensation ever owed or paid by the respondent essentially disregards the plain language of the Full Commission’s May 10, 1995, order holding the respondent liable for a 25% increase on indemnity benefits awarded to theclaimant in the prior awards of the Commission. In this regard, we note that the claimant’s compensation for temporary total disability was accepted and paid in its entirety by the respondent, as were benefits for a 20% permanent anatomical impairment. Therefore, we fail to see any basis for possibly concluding that the claimant’s temporary total disability compensation or his compensation for a 20% anatomical impairment accepted by the respondent was ever “awarded to the claimant in the prior awards of this Commission”, as required by the Full Commission May 10, 1995 order. To the extent that the administrative law judge suggests that the Full Commission’s May 10, 1995, order mis-applied the law, we simply note that the language of the order is unambiguous, and the claimant’s proper remedy if he felt aggrieved by that order would have been to appeal it. The claimant did not appeal the May 10, 1995, order and we are therefore bound by that decision. [6] To the extent that the respondent asserts that the claimant had only been awarded a 5% additional anatomical impairment payable by the respondent prior to May 10, 1995, we note that the administrative law judge’s, March 19, 1993, order contained the following award (ultimately upheld by both the Full Commission and the Court of Appeals prior to the May 10, 1995 order):Pursuant to Ark. Code Ann. § 11-9-503 (1987), we find that the compensation which is provided for in Ark. Code Ann. § 11-9-501(a)-(d) and awarded to the claimant in the prior awards of this Commission shall be increased by twenty-five (25%). [Emphasis added].
Award
[7] In light of the administrative law judge’s award of permanent and total disability payable by this respondent, we see no basis in the record to support the respondent’s assertion that the Commission had only awarded the claimant an additional 5% impairment prior to May 10, 1995. [8] Finally, to the extent that the claimant asserts that the checks tendered to the claimant on June 23, 1995, were late, and not tendered within the statutorily prescribed deadline, we note that the claimant has failed to provide any explanation for this assertion, and we are not able to perceive any basis from our own review of the law and the record that the respondent’s June 23, 1995, were not tendered within the applicable statutory period. [9] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that, pursuant to the Full Commission’s May 10, 1995, and applicable prior orders, the claimant is entitled to a 25% increase in the compensation rate for all of the claimant’s permanent disability compensation in excess of the 20% anatomical impairment which was accepted and paid by the respondent. In addition, we find that the claimant’s attorney is entitled to a second attorney fee at the maximum rate on the penalty benefits at issue herein, except to the extent that these benefits have already been paid by checks tendered on or around June 23, 1995. [10] 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 (Repl. 1996). For prevailing in part 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 (Repl. 1996). [11] IT IS SO ORDERED.Respondent No. 1 is hereby ordered and directed to pay to the claimant permanent total disability benefits at a weekly compensation benefit rate of $175 commencing with the end of the claimant’s healing period, and continuing until such time as it has satisfied its obligation under the Arkansas Workers’ Compensation Act, as a result of the claimant’s compensable injury of September 7, 1986, the same representing a 25% anatomical impairment as a result of the claimant’s compensable injury of September 7, 1986, along with wage loss.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[12] Commissioner Wilson concurs in part and dissents in part. [13] CONCURRING AND DISSENTING OPINION[14] I respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I concur in the majority’s finding that the doctrine of res judicata bars an application of the 25% penalty to the claimant’s temporary total disability compensation and to the 20% anatomical impairment accepted and paid by the respondent prior to the first hearing on his claim. I also concur in the majority’s finding that the checks tendered to the claimant on June 23, 1995 were tendered within the statutorily prescribed time period. However, I must dissent from the majority’s finding that the claimant is entitled to a 25% increase in the compensation rate for the claimant’s wage loss benefits. I find that the 25% penalty does not apply to these benefits. Based upon my de novo review of the record, I find that the respondent has timely paid all safety penalty benefits plus interest awarded by the Commission and the respondent has timely paid to the claimant’s attorney its share of the claimant’s attorney’s fee on the controverted and awarded benefits, plus reimbursable costs. Therefore, I respectfully concur in part and dissent in part from the majority opinion. [15] MIKE WILSON, Commissioner