CLAIM NO. E707386
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 9, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE ANGELA M. DOSS, Attorney at Law, Fayetteville, Arkansas.
[1] ORDER
[2] This matter comes before the Full Commission on the motion of the claimant’s attorney for an attorneys’ fee related to our prior order of remand dated September 28, 1998. After considering the claimant’s motion, the respondent’s response thereto, and all other matters properly before the Commission, we respectfully deny the claimant’s motion.
[4] The carrier wrote to the Chief Executive Officer of the Commission on January 27, 1998, requesting that this claim be dismissed for failure to prosecute pursuant to Ark. Code Ann. § 11-9-702(a)(4) and AWCC Rule 13. The Clerk of the Commission wrote to Mr. Tolley and the claimant on February 4, 1998. The clerk advised counsel that, if the Clerk did not hear from him within 30 days, the Clerk would assume he did not object to dismissal, and an appropriate order would be entered. The Commission file does not contain any response from Mr. Tolley, and the Chief Executive Officer subsequently entered an Order of Dismissal on March 20, 1998. [5] Counsel for the claimant appealed the Chief Executive Officer’s March 20, 1998 order and requested a “$250.00 attorney fee for protecting my client’s interest in making sure that an insurance company does things properly under the statute.” In an order filed September 28, 1998, we vacated the CEO’s order of dismissal and remanded this case for an administrative law judge to consider the respondents’ motion to dismiss, consistent with Ark. Code Ann. § 11-9-702(a)(4) (Supp. 1997), without addressing Mr. Tolley’s attorney’s fee request. [6] Counsel subsequently filed the within Motion for Attorney Fees. The claimant requests an attorney’s fee because she “prevailed on appeal” in having the Full Commission vacate the dismissal of the case by the Chief Executive Officer. The claimant maintains that she has “preserved the status quo” and “clearly is a prevailing party.” The claimant requests a fee of $250.00 for “prevailing on appeal” and an additional $250.00 “for having to write again to ask for the attorney fee to be awarded.” [7] The respondent submits that the claimant is not entitled to the attorney fee sought. The respondent asserts that the appeal process was not facilitated by the respondent, but rather was made necessary by the actions of the claimant and her attorney. We agree. [8] Arkansas Code Annotated § 11-9-715 states in relevant part:This will acknowledge receipt of your letter of July 10, 1997 transmitting a copy of Form AR-C that has been filed in this matter by Attorney Tolley on behalf of the claimant.
This is to advise the Commission and Mr. Tolley that Mrs. Cox did suffer a compensable injury on May 20, 1997 when she suffered a fall resulting in an injury to her left upper extremity.
Mrs. Cox did not lose any compensable time as a result of this injury and, consequently, the claim has been handled in a medical only status. It is our understanding that Mrs. Cox was provided appropriate medical care for her injury.
We have contacted Attorney Tolley’s office and has (sic) scheduled an appointment to take Mrs. Cox’s statement on July 18, however, she failed to make the appointment and, therefore, we are uncertain at this time as to what issues are in dispute, and what additional benefits are being claimed.
By copy of this letter to Mr. Tolley, we would ask that he please clarify this for us and also assist us in making Mrs. Cox available as soon as possible in order that we can further respond to the claim.
[9] In the present case, we find that the claimant’s attorney has so far failed to establish that he is entitled to any fee in this case for two reasons. First, although the claimant’s attorney asserts that he has prevailed before the Full Commission regarding the respondents’ motion to dismiss, we point out that we did not reach the merits of that motion in our September 28, 1998 order. Instead, we remanded this case for an administrative law judge to decide the respondents’ motion pursuant to Ark. Code Ann. § 11-9-702(a)(4). Consequently, the claimant has not yet prevailed with regard to the respondents’ motion to dismiss and has certainly not yet prevailed with regard to benefits allegedly sought by the claimant pursuant to the Form AR-C which initiated this claim. Under these circumstances, we find that the claimant has failed to establish that she has prevailed to date before the Full Commission, within the meaning of Ark. Code Ann. § 11-9-715(b)(1), so as to entitle the claimant’s attorney to an “additional” fee. [10] Second, even if we were to find that the claimant “prevailed” under the circumstances of our order of September 28, 1998, a finding that we do not make, we find that the claimant’s attorney has failed to justify an attorney’s fee award from the claimant or from the respondent in this case. In this regard, we note that the correspondence in the Commission’s file indicates that the claimant did not show up to give a scheduled statement regarding this claim and the claimant’s attorney did not respond to the respondent’s dismissal motion when requested to do so by the Clerk of the Commission. Notably, the July 7, 1997 Form AR-C signed by Mr. Tolley, which purportedly is a claim forinitial benefits, appears completely at odds with the respondent’s July 21, 1997 correspondence indicating that the claimant’s injury had been accepted as compensable and that appropriate benefits had already been paid. Consequently, the documents currently in the Commission’s file would suggest that Mr. Tolley has filed a non-meritorious claim in which no justiciable issue exists between the parties, a practice which both this Commission and the Court of Appeals have previously admonished Mr. Tolley not to continue doing. See,Johnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730 (1996). However, we do not make any finding regarding whether Mr. Tolley has engaged in sanctionable conduct in the present case since that issue has not been raised and no record has been developed on that or any other issue in this case. [11] Accordingly, for the reasons discussed herein, we find that the claimant’s motion for attorney fees must be, and hereby is, denied. [12] IT IS SO ORDERED.(b)(1) In addition to the fees provided in subdivision (a)(1) of this section, if the claimant prevails on appeal, the attorney for the claimant shall be entitled to an additional fee at the full commission and appellate court levels, the additional fee to be paid equally by the employer or carrier and by the injured employee or dependents of a deceased employee, as provided above and set by the commission or appellate court.
(2) The maximum fees allowable pursuant to this subsection shall be the sum of two hundred fifty dollars ($250) on appeals to the Full Commission from a decision of the administrative law judge, and the sum of five hundred dollars ($500) on appeals to the Arkansas Court of Appeals or Supreme Court from a decision of the commission.
(3) In determining the amount of fees, the court shall take into consideration the nature, length, and complexity of the services performed, and the benefits resulting to the compensation beneficiary.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[13] Commissioner Humphrey dissents.