DAVENPORT v. DAVENPORT AUTO TRUCK STOP, 2005 AWCC 166

CLAIM NO. F206220

CURTIS DAVENPORT, EMPLOYEE, CLAIMANT v. DAVENPORT AUTO TRUCK STOP, EMPLOYER, RESPONDENT NO. 1, TRAVELERS INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 1, SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 24, 2005

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE PHILLIP WELLS, Attorney at Law, Jonesboro, Arkansas.

Respondents No. 1 represented by the HONORABLE PHILLIP CUFFMAN, Attorney at Law, Maumelle, Arkansas.

Respondent No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.

ORDER
Respondent No. 2, Second Injury Trust Fund, moves the Full Commission to reconsider and clarify our July 7, 2005 Opinion And Order. After considering Respondent No. 2’s motion and the replies of the other parties, the Full Commission finds that the Second Injury Fund is not liable for the attorney’s fee provided for in Ark. Code Ann. §11-9-715(b)(2) (Repl. 2002).

Attorney’s fees cannot be awarded unless specifically provided for by statute. Arkansas Okla. Gas Corp. v. Waelder Oil Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998). Ark. Code Ann. § 11-9-715(b) (Repl. 2002) provides:

(1) 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 in addition to the fees provided in subdivision (a)(1) of this section, 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 five hundred dollars ($500) on appeals to the full commission from a decision of the administrative law judge and the sum of one thousand dollars ($1,000) on appeals to the Court of Appeals or Supreme Court from a decision of the commission.

The Full Commission filed an Opinion in the present matter on July 7, 2005. See, Davenport v. Davenport Auto Truck Stop, Workers’ Compensation Commission F206220 (July 7, 2005). The Full Commission found, “For prevailing in part on appeal, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002).”

The Supreme Court of Arkansas has held that Ark. Code Ann. §11-9-715(b)(1) does not mention the Second Injury Fund, nor can the Fund be construed so as to be included definitively within the terms “employer or carrier.” See, Furman v. Second Injury Fund, 336 Ark. 10, 983 S.W.2d 923 (1999).

The Full Commission therefore finds that Respondent No. 2 is not liable for the attorney’s fee enumerated in Ark. Code Ann. § 11-9-715(b). Pursuant to Ark. Code Ann. § 11-9-715(b)(1), the additional fee is to be paid equally by the Respondent No. 1 and the injured employee.

IT IS SO ORDERED.

________________________________ OLAN W. REEVES, Chairman
________________________________ SHELBY W. TURNER, Commissioner
________________________________ KAREN H. McKINNEY, Commissioner