Chamberlain v. American Airlines
| Decision Date | 14 July 1987 |
| Docket Number | No. 66017,66017 |
| Citation | 1987 OK 62,740 P.2d 717 |
| Parties | Billy Dean CHAMBERLAIN, Petitioner, v. AMERICAN AIRLINES and Travelers Insurance Company, Respondents. |
| Court | Oklahoma Supreme Court |
Wilson Jones and Bryce Hill, Frasier & Frasier, Tulsa, for petitioner.
Jerry H. Holland and Arthur H. Adams, Sanders & Carpenter, Tulsa, for respondents.
The only issue presented by the petitioner/claimant, Billy Dean Chamberlain, is whether, after he was awarded compensation for permanent total disability, the attorney fees awarded to his lawyer should be commuted to a lump-sum payment or if the fees should be paid periodically. We find that pursuant to 85 O.S. 1981 §§ 22(1), 41(B) and 48, attorney fees should be commuted to a lump sum.
The respondents and cross-petitioners, American Airlines and Travelers Insurance Company, assert that both the trial court and the review panel of the Workers' Compensation Court erred by failing to credit their payments for fourteen weeks of compensation mandated by 85 O.S. 1981 § 22, 1 and for wages paid to the claimant in lieu of compensation for a four-month period prior to the award for permanent total disability. We find that 85 O.S. 1981 § 41.1 prohibits any deduction from the amount of the claimant's award or any credit for payments made either in lieu of compensation or for the satutorily mandated fourteen weeks of compensation.
The trial court found that the claimant was permanently and totally disabled as the result of multiple surgeries for hernias. It awarded compensation at the statutory rate of $212.00 per week combined with a lump-sum payment of $14,204.00 for the sixty-seven weeks which had accrued at the time of the award. In addition, the claimant's award for attorney fees was commuted to a lump-sum of $21,200.00 with the proviso that the employer, American Airlines, could recover the fees at the rate of 10% per week from the weekly payments made to the claimant. The review panel affirmed both the award for permanent total disability and the attorney fees, but it reversed the manner of payment of the attorney fees. Under the panel's formula, the attorney was to be paid $2,840.80 from the accrued portion of the award and $212.00 every fifth week for a period not to exceed five-hundred weeks. In essence, the review panel's decision prohibited any payment to the claimant every fifth week.
ATTORNEY FEE AWARDS IN WORKERS' COMPENSATION CASES MAY NOT
BE SATISFIED BY DEPRIVING THE RECIPIENT OF WEEKLY
Once it has been determined that a claimant is entitled to recover under the Workers' Compensation Act, there are three provisions which must be considered before the disbursement of benefits can be accomplished: 1) 85 O.S. 1981 § 22(1), 2 2) 85 O.S. 1981 § 41(B), 3 and 3) 85 O.S. 1981 § 48. 4 In the event of permanent total disability, § 22(1) provides that 66 2/3% of the employee's weekly wages shall be paid to the employee. 5 Section 41(B) states that awards for permanent total disability are to be made under § 22, and that the Court shall make a determination that the claimant will be entitled to receive weekly income benefits. 6 Section 48 mandates that "claims for compensation or benefits due under the Workers' Compensation Act shall not be assigned, released or commuted ..." except as provided under the Act, and that "benefits shall be paid only to employees ...". 7
All three sections of the Act contain mandatory and directory language rather than permissive and discretionary verbiage. 8 When the mandate of the Act is followed, as a matter of law, the claimant must receive weekly income benefits.
ATTORNEY FEE AWARDS IN CASES WHERE THE CLAIMANT IS FOUND
The determination that attorney fee awards may not be satisfied by depriving the compensation claimant of weekly benefits is readily reached through a careful reading of the statutes. The method by which the employer is to recover such fees if there is an award for permanent total disability is a more difficult problem. The respondents argue that because the review panel is empowered to modify the trial court's order regarding the way attorney fees are paid, this Court has no jurisdiction to review the modification. We agree with the respondents that we have long-recognized that whether to award an attorney fee is within the exclusive jurisdiction of the Workers' Compensation Court. 9 We do not agree that this recognition removes all questions involving attorney fees from our jurisdiction, or that under appropriate circumstances, the findings of the Workers' Compensation Court concerning attorney fees may not be reviewed on appeal. 10
The Legislature has determined that the American rule, which provides that in the absence of a statute or a contract each party to a suit is required to pay his own attorney fees, 11 prevails insofar as attorney fees in workers' compensation cases are concerned. However, the Legislature also has recognized that claimants entitled to compensation may not, without the benefit of the award, be able to afford a lawyer. Because in the absence of bad faith there is no common law right to recover one's attorney fees from an adverse party, 12 any recovery here rests upon the statute. 13 The Act provides for a court-approved contingent-fee arrangement by which attorney fees are to be paid from the claimant's award. 14 Such attorney fees are necessarily post-judgment awards because the claimant must prevail before attorney fees may be imposed.
In cases involving permanent total disability, the question regarding attorney fees is not whether the trial court may award a lump-sum fee, 15 but whether it must do so in order to comply with Title 85. Therefore, we could summarily affirm the trial court's award of a lump-sum fee. We choose not to do so, mostly because of the existing confusion about how these fees are to be awarded, the need to settle existing uncertainty in order to avoid future problems, and the inconsistent manner in which attorney fees are ordered to be paid. 16 In most cases involving general provisions authorizing the trial court in workers' compensation cases to commute unaccrued compensation to a lump sum, the court may also properly commute a portion of the claimant's award to pay the attorney's fee. 17 Additionally, when a statute provides that the fee shall be reasonable, the term "reasonable" is interpreted to encompass both the amount and kind of fee--lump sum or periodic. 18 In Oklahoma, the payment of attorney fees in cases involving permanent total disability is addressed in two sections of the Act, 85 O.S. 1981 § 30 and 85 O.S. 1981 § 41(A), (B). Title 85 O.S. 1981 § 30 states that claims for legal services for permanent total disability awards may be paid in a lump-sum. 19 Subsections (A) and (B) of 85 O.S. 1981 § 41 also address the payment of legal fees in such cases. Subsection (A) 20 provides that attorney fees are to be based upon a maximum of a five-hundred-week award which may be commuted to a lump-sum payment. Subsection (B) 21 does not speak directly to the award of these fees but it does refer to lump-sum payment of legal services, "as provided herein." This language undoubtedly refers to subsection A. The only language in subsection (A) referring to payment of attorney fees assumes a commutation to a lump-sum payment. 22 The pertinent language from § 30 provides:
"Claims for legal services for permanent total disability awards ... may be paid in a lump sum which shall be deducted from the periodic compensation payments ..."
A casual reading of this language might lead one to believe that the commutation of the fee into a lump sum is discretionary because the term "may" is used to refer to the commutation. 23 However, the whole sentence must be carefully construed to determine its meaning. Once the sentence is carefully dissected, it is obvious that the word, "may", is not the term crucial to the understanding of legislative intent. The operative language controlling the necessary construction of the sentence is the language referring to how attorney fees are to be retrieved. 24
Section 30 sets forth the only way an employer or insurance carrier may recover attorney fees after an award for permanent total disability has been ordered--an allowance of a ten percent deduction in each of the monthly payments until the fee is satisfied. 25 Because the sole arrangement for recovery of attorney fees is delineated in § 30, and because the recovery is based upon a lump-sum payment, the commutation to a lump sum is mandatory if there is an award for permanent total disability. If it were not so, there would be no statutory procedure for employers and insurers to recoup attorney fees.
The respondents contend that lump-sum payments are inequitable in cases of permanent total disability because the possibility exists that the claimant will physically recover; and if he/she does, they will not be reimbursed for the previously-paid attorney fees. We are not unsympathetic to this argument, but we are not faced with that problem here. Rules of construction require that statutes be construed to avoid conflict between provisions. 26 There is no true conflict--one section does not require periodic payment of attorney fees while the other demands a lump-sum payment. The statutes must be construed to harmonize one section with the other giving reasonable effect to all. 27 When this rule is followed, the inevitable outcome is that attorney fees awarded in conjunction with permanent total disability cases must be commuted to a lump sum and recovered at the rate of ten percent from each of the periodic payments until the fee is recouped. We find the statutes to be controlling, and that it is for the Legislature, not this Court, to provide for contingent possibilities.
A CLAIMANT'S AWARD MAY NOT BE REDUCED BY PAYMENTS MADE IN
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