Court of Appeals of Arkansas, Divisions II, III, IV
ARKANSAS GAME & FISH COMMISSION AND PUBLIC EMPLOYEE CLAIMS DIVISION APPELLANT
OSCAR A. GERARD, JR. APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
H. Montgomery, Public Employee Claims Division, for
Alan Peoples, PLC, by: Mark Alan Peoples, for appellee.
F. VIRDEN, JUDGE.
Arkansas Game & Fish Commission (AG&F) appeals the
Arkansas Workers' Compensation Commission's decision
requiring it to pay one hundred percent of the attorneys'
fees resulting from additional benefits awarded to Gerard. We
2002 and 2013, Oscar Gerard, an employee of AG&F,
underwent various medical procedures related to a compensable
back injury he sustained while at work. On February 19, 2014,
Gerard's treating back surgeon declared that Gerard had
attained maximum medical improvement with 16 percent
impairment. AG&F accepted liability for the 16 percent
impairment rating and a 10 percent wage loss. Two other
doctors independently evaluated Gerard, and both opined that
his impairment rating was 23 percent to the body as a whole.
AG&F accepted the 23 percent impairment rating.
Gerard filed a claim in which, among other things, he argued
that he was entitled to permanent partial-disability benefits
in excess of 10 percent due to the 7 percent increase in his
impairment rating, he was entitled to additional temporary
total disability benefits, and AG&F should not be
entitled to any offset pursuant to Ark. Code Ann. §
11-9-411 (Repl. 2012).
the hearing on December 22, 2015, the administrative law
judge (ALJ) decided partially in Gerard's favor and found
that Gerard had established that he is entitled to a 35
percent wage-loss disability award, but that AG&F was
allowed to take credit for the previous 10 percent wage loss
paid. The ALJ found that AG&F was entitled to the offset
provided for in Ark. Code Ann. § 11-9-411 because
"it appears to this examiner that Mr. Gerard's
Arkansas Public Employment Retirement System (APERS)
retirement benefits rate of $2, 424.67 to $2, 479.79 per
month would far exceed his workers' compensation benefit
rates of $277.00 or $369.00 per week." The ALJ also
found that the attorneys for the parties were entitled to a
25percent fee on the indemnity benefits awarded to Gerard
"one-half of which is to be paid by the claimant and
one-half to be paid by the respondents in accordance with
Ark. Code Ann. § 11-9-715[.]" AG&F promptly
tendered its half of the of attorneys' fees.
April 18, 2016, Gerard filed a motion to enforce payment of
the attorneys' fees. Gerard explained that his disability
retirement compensation exceeded the award of additional
benefits, and the offset depleted the "payable
benefits" from which the attorneys' fees should be
paid. Gerard argued that he effectively never received any
compensation, and because Ark. Code Ann. §
11-9-715(a)(2)(B)(i) requires that Gerard's payment of
attorneys' fees must come from any benefits he was
awarded, AG&F must pay the remaining half of the fees.
Gerard stated that
[t]hus, respondent is required to pay the claimant's 1/2
share of the attorney's fee owed and then withhold such
an amount from compensation it pays to the claimant, if any.
If, as in this case, respondent (because of the offset) ends
up paying no compensation to the claimant, then respondent
would be entitled to deduct the claimant's ½ share
of the fee from any future benefits that may become payable
to the claimant.
Gerard argued that he should not be required to pay his
attorneys' fees out of his own pocket when the statute
directs that the fees be deducted from the payable benefits.
responded that this it had made payment of half of the
attorneys' fees to the proper entities, and despite the
unfortunate offset, Ark. Code Ann. §
11-9-715(a)(2)(B)(i) requires that Gerard be responsible for
his half of the attorneys' fees out of his own pocket if
necessary. (Add. 40-1)
acknowledged that is a case of first impression and that
neither the Commission nor the courts had directly addressed
which statute had priority over the other. The ALJ explained
that "neither Section 411 nor Section 715 is unclear in
any relevant way except that both statutes are silent and
therefore ambiguous as to which statute applies first to an
award of benefits in a controverted claim." The ALJ
found that "deduction of the claimant's one-half of
the controverted attorneys' fees out of compensation
payable to the claimant under Arkansas Code Annotated section
11-9-715(a)(2)(B)(i) precedes any reduction in benefits
provided for under Arkansas Code Annotated section
11-9-411(a)(1)." (Add. 48) The ALJ ordered AG&F to
pay the claimant's one-half of the fees to the attorney
out of the benefits awarded to ...