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Arkansas Game and Fish Commission v. Gerard

Supreme Court of Arkansas

March 29, 2018

ARKANSAS GAME AND FISH COMMISSION, PUBLIC EMPLOYEE CLAIMS DIVISION; AND DEATH & PERMANENT TOTAL DISABILITY TRUST FUND APPELLANTS
v.
OSCAR A. GERARD, JR. APPELLEE

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. F205923]

          Robert H. Montgomery, Public Employee Claims Division, for appellant.

          Mark Alan Peoples, PLC, by: Mark Alan Peoples, for appellee.

          KAREN R. BAKER, Associate Justice

         This appeal stems from a decision from the Full Commission of the Arkansas Workers' Compensation Commission. On May 12, 2002, appellee, Oscar Gerard, suffered a compensable injury. The appellant, Arkansas Game and Fish Commission ("AG&F"), accepted the injury as compensable and paid workers'-compensation benefits and expenses as a result of his injury. Between 1999 and 2013, Gerard had three surgeries for his work-related injuries while employed by AG&F.

         On February 19, 2014, Gerard's treating back surgeon declared that Gerard had attained maximum medical improvement with 16 percent impairment. Thereafter, AG&F accepted liability for the 16 percent impairment rating and a 10 percent wage loss. Subsequently, two other doctors independently evaluated Gerard, and both opined that Gerard's impairment rating was 23 percent to the body as a whole. AG&F accepted the 23 percent impairment rating.

         In 2015, Gerard sought additional temporary total-disability benefits, alleging that he was entitled to either permanent and total disability benefits or alternatively wage-loss disability benefits as a result of his work-related injury. Gerard further alleged 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. Further, Gerard asserts that AG&F should not be entitled to any offset pursuant to Ark. Code Ann. § 11-9-411 (Repl. 2012).

         On December 22, 2015, an administrative law judge ("ALJ") held a hearing. On February 23, 2016, the ALJ issued an opinion finding, among other things, that Gerard established that he is entitled to a 35 percent wage-loss disability award and that AG&F was allowed to take credit for the previous 10 percent wage loss paid. The ALJ further 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 Gerard's attorney was entitled to a 25 percent 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 tendered its half of the attorneys' fees. The parties did not appeal this order.

         On April 18, 2016, Gerard filed a motion to enforce payment of the attorneys' fees. Gerard asserted 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. AG&F responded that it had paid one-half of the attorneys' fees to the proper entities, and pursuant to Ark. Code Ann. § 11-9-715(a)(2)(B)(i), Gerard was responsible for his half of the attorneys' fees out of his own pocket, if necessary.

         The ALJ found that the "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)" and ordered AG&F to pay Gerard's one-half of the fees to Gerard's attorney out of the benefits awarded to the claimant. AG&F appealed to the Full Commission, and the Commission affirmed and adopted the ALJ's decision. AG&F appealed to the court of appeals, which reversed the Full Commission's decision. Arkansas Game & Fish Comm'n v. Gerard, 2017 Ark.App. 523, at 1-4, 530 S.W.3d 887, 888-89. On December 14, 2017, we granted Gerard's petition for review. When this court grants a petition for review, it considers the appeal as though the case originally had been filed in this court. Jones Bros., Inc. v. Whitlock, 366 Ark. 254, 257, 234 S.W.3d 864, 867 (2006).

         On appeal, AG&F presents two points: (1) whether the Full Commission erred in its interpretation of Ark. Code Ann. § 11-9-715 by requiring AG&F to pay Gerard's one-half portion of the attorney's fees due from the benefits awarded; and (2) whether the Full Commission erred when it found that the General Assembly intended the attorney's fees awarded pursuant to Ark. Code Ann. § 11-9-715 to have priority over the offset provided for in Ark. Code Ann. § 11-9-411.

         Standard of Review

         "In appeals involving claims for workers' compensation, our court views the evidence in a light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Hapney v. Rheem Manufacturing Co., 341 Ark. 548, 26 S.W.3d 771 (2000); Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999)." Wallace v. W. Fraser S., Inc., 365 Ark. 68, 69-70, 225 S.W.3d 361, 363-64 (2006).

         Further, in reviewing §§ 11-9-715 and 11-9-411, "we construe the statutes so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007). 'When interpreting statutes, our review is de novo, as it is for this court to decide what a constitutional and statutory provision mean.' Ark. Hotels and Ent't, Inc. v. Martin, 2012 Ark. 335, 423 S.W.3d 49. 'In considering the meaning of a statute, we consider it just as it reads, giving the words their ordinary and usually accepted meaning.' Nelson v. Timberline Int'l, Inc., 332 Ark. 165, 176, 964 S.W.2d 357, 362 (1998). Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). Statutes relating to the same subject must be construed together and in harmony, if possible. Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006)." Ortho-McNeil-Janssen Pharm., Inc. v. State, 2014 Ark. 124, at 10-11, 432 S.W.3d 563, 571. "However, when we construe the workers' compensation statutes we must strictly ...


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