CLAIM NO. E811131
Before the Arkansas Workers’ Compensation Commission
ORDER FILED NOVEMBER 28, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent No. 1 represented by BRUCE ANIBLE, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by JUDY RUDD, Attorney at Law, Little Rock, Arkansas.
ORDER
This matter is before the Full Commission on motions filed by Respondent No. 1. The administrative law judge issued a decision in this cause on July 26, 2001. Respondent No. 1 filed a Motion for Clarification on August 1, 2001. On September 4, 2001, the administrative law judge denied the motion. Respondent No. 1 filed a Motion for Remand on September 10, 2001. In correspondence dated September 12, 2001, Respondent No. 2 advised the Commission that the Second Injury Fund declined to take any position on the motion.
The remand motion filed by Respondent No. 1 is essentially a request for clarification of the administrative law judge’s opinion, and provides in pertinent part:
That the wording of the Administrative Law Judge’s 07/26/01 Opinion makes it unclear with respect to whether the Administrative Law Judge found Respondents [sic] No. 1 failed to prove entitlement to reimbursement and/or a credit with regard to their perfected subrogation lien in light of Jaynes and the made whole doctrine OR whether Respondents [sic] No. 1 failed to perfect their lien in accordance with the requirements of Ark. Code Ann. § 11-9-410 . . .
We cannot agree with the assertion of Respondent No. 1 that the administrative law judge’s decision lacked clarity. The issue presented was the applicability of the made whole doctrine in light of the Supreme Court’s decision in General Accident Ins. v. Jaynes, 343 Ark. 143, 33 S.W.3d 161 (2000). The administrative law judge did not determine whether respondents fulfilled the requirements of Ark. Code Ann. § 11-9-410 (Repl. 1996) for preserving their statutory lien.
Therefore, after considering this motion and all other matters properly before the Commission, we find that this motion should be denied.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson concurs.
CONCURRING OPINION
MIKE WILSON, Commissioner
I concur in the majority opinion finding that the issue presented by the parties to the Administrative Law Judge was the applicability of the made whole doctrine in light of the Jaynes decision. I interpret the Administrative Law Judge`s opinion as finding that Respondent No. 1 is not entitled to a lien because it failed to prove that the settlement entered into by the claimant amounted to double recovery and therefore failed to prove that the claimant had been made whole.
I write separately to point out that there was no contention by any party at the hearing that Respondent No. 1 had otherwise failed to perfect their subrogation lien, and this issue was not litigated at the hearing. I would further point out that having an otherwise perfected lien would necessarily be a pre-requisite to the litigation of the applicability of the “made whole” doctrine.
The remand requested by Respondent No. 1 thus appears unnecessary, as the majority opinion has clarified the requested issue.
_______________________________ MIKE WILSON, Commissioner