{"id":"alj-H205106-2023-11-06","awcc_number":"H205106","decision_date":"2023-11-06","opinion_type":"alj","claimant_name":"Juan Acevedo","employer_name":"Portillos Constr., Inc","title":"ACEVEDO VS. PORTILLOS CONSTR., INC. AWCC# H205106 NOVEMBER 6, 2023","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//ACEVEDO_JUAN_H205106_20231106.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ACEVEDO_JUAN_H205106_20231106.pdf","text_length":20853,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205106 \n \nJUAN D. RUIZ ACEVEDO, \nEMPLOYEE                                                       CLAIMANT \n \nPORTILLOS CONSTR., INC., \nEMPLOYER                                                    RESPONDENT \n \nOHIO SECURITY INS. CO./ \nLIBERTY MUTUAL INS. GRP., \nINSURANCE CARRIER/TPA                                                                          RESPONDENT   \n \n \nOPINION AND ORDER FILED NOVEMBER 6, 2023 \n \nSingle issue presented for decision based on the parties’ written briefs and designated record before \nthe Arkansas Workers’ Compensation Commission (the Commission), Administrative Law Judge \nMike Pickens, submitted on August 21, 2023. \n \nThe claimant is represented by the Honorable Mark Alan Peoples, Peoples Law Firm, Little Rock, \nPulaski County, Arkansas.   \n \nThe  respondents  are  represented  by  the  Honorable  Zachary  Ryburn,  Ryburn  Law  Firm,  Little \nRock, Pulaski County, Arkansas.   \n \nINTRODUCTION \n In lieu of a hearing and pursuant to the parties’ mutual agreement made during the course \nof the aforementioned prehearing teleconference memorialized in the Amended Prehearing Order \nfiled  July  21,  2023,  the  parties  waive  their  right  to  a  hearing  on  the  subject  issues.  Instead,  the \nparties’ have agreed the ALJ may render an opinion and order based on the record designated by \nand agreed to by the parties as set forth below. \nPursuant to the Prehearing Order filed July 21, 2023, the parties have agreed to the \nfollowing relevant stipulations: \n1. The   Arkansas   Workers’   Compensation   Commission   (the   Commission)   has \njurisdiction over this claim and the issue herein – specifically, enforcement of the \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n2 \nJoint Petition Order (JP Order) filed June 2, 2023. \n \n2. Both the claimant and respondents waive their right to a hearing on this issue. In \nlieu of a hearing, and pursuant to the parties’ mutual agreement, they will submit \nthis matter to be decided based on their respective briefs and the record as described \nabove. \n \n3. The JP Order was approved and filed with the Commission on June 2, 2023. As of \nthe date of the parties’ July 19, 2023, prehearing telephone conference – some 47 \ndays  after  approval  and  filing  of  the  June  2,  2023,  Joint  Petition  Order –  the \nclaimant  still  had  not  received  the  $5,000.00  settlement  check  awarded  in  the \nsubject order. \n \n(Commission Exhibit 1 at 2). Again, pursuant to the parties’ mutual agreement the sole issue to \nbe litigated based on the parties’ blue-backed briefs and designated and mutually agreed record \nis: \n 1. Whether, and if so to what extent, the respondents are subject to a late payment   \n  penalty based on the amount of the sum approved and awarded to the claimant in   \n  the Joint Petition Order approved and filed June 2, 2023. \n \n(Comms’n Ex. 1 at 2).   \nThe claimant contends he is entitled to a late payment penalty pursuant to Ark. Code Ann. \n§ 11-9-802 (2023 Lexis Replacement) based on the total amount of his joint petition settlement \naward of $5,000.00. (Comms’n Ex. 1 at 2). \n The  respondents  contend  they  are  not  subject  to  the  payment  of  any  such  late  payment \npenalty. Moreover, the respondents contend the claimant should be held in contempt for filing a \nfrivolous  motion  and,  therefore,  the  claimant  should  be  deemed  liable  for  payment  of  their \nattorney’s fees and costs in responding to the motion. (Comms’n Ex. 1 at 3). \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n3 \n \n The record herein consists of the blue-backed documents attached hereto as Commission \nExhibit 1 (the Amended Prehearing Order Filed July 21, 2023); Joint Exhibit 1, pages 1-57; Joint \nExhibit 2, pages 1-17; the parties’ respective blue-backed briefs; any and all other relevant, agreed \ndocuments, if any, they may have attached to their respective briefs; as well as the Commission’s \nentire file by reference including but not limited to the digital recording of the June 2, 2023, JP \nhearing. \nSTATEMENT OF THE CASE \n The relevant facts of this case are not in dispute. The issue to be decided is a matter of law, \nas  stated supra:  Whether,  and  if  so,  to  what  extent,  if  any,  the  respondents  are  subject  to  a  late \npayment penalty pursuant to Ark. Code Ann. Section 11-9-802 (2023 Lexis Repl.) related a joint \npetition settlement hearing (JP hearing) that was held on June 2, 2023. A prehearing order filed \nMarch 17, 2023, scheduled a hearing on the merits for Friday, June 2, 2023. The parties settled the \nclaim before the hearing date, and the claimant requested the June 2, 2023, hearing date and time \nbe used for the JP hearing. The respondents agreed to this request, as did the ALJ.   \n      The claimant knew the respondents would not and did not have the two (2) settlement checks \nin their possession at the hearing, but had previously agreed this was acceptable and he wished to \nproceed  with the JP hearing with the understanding he would receive his settlement check after \nthe JP hearing. The ALJ found the settlement was in the both the claimant’s and respondents’ best \ninterests, approved the settlement, and signed and filed the JP Order dated June 2, 2023. \n On June 16, 2023 – 15 days after the date the JP Order was signed (which was on a Friday) \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n4 \n–  the  respondents  delivered  the  $5,000  settlement  check  to  the  claimant.  The  check  was  made \npayable to both the claimant and his attorney. The claimant’s attorney advised the respondents’ \nattorney the claimant was unable to cash the check since it was made payable to both him and his \nattorney. Consequently, the claimant’s attorney requested  the  respondents  issue  a  second  check \nmade payable only to the claimant. It appears the claimant’s attorney made this request on June \n16, 2023. While the first settlement check could have been cashed soon after the claimant received \nit if both the claimant and his attorney signed it, the record is devoid of evidence demonstrating \nany effort  was  made  to  obtain  the  claimant’s  attorney’s(s’)   signature(s)   on   the   check. \nConsequently,  the  respondents  agreed  to  send  a  new  check  listing  only the claimant’s  name  as \npayee.  Of  course,  pursuant  to  the  terms  of  the JP  settlement  agreement, the claimant’s attorney \nreceived his fee via a separate check made payable solely to him. \n The  claimant  and/or  his  attorney  returned  the  first  settlement  check  to  the  respondent’s \nattorney, who received it and sent it back to Liberty Mutual, the respondent-carrier. Liberty Mutual   \nissued a stop payment on the first JP settlement check so a new, second check could be sent before \nthey –  Liberty  Mutual – actually  received  the  claimant’s  first,  returned  settlement  check, \npurportedly in an attempt to expedite the claimant’s receipt of the second check. The new/second \ncheck was mailed to the claimant’s attorney, returned to sender, and subsequently sent directly to \nthe claimant. The claimant received the second, newly-issued settlement check on or about July \n31, 2023, some 59 days after the date the JP order was signed and thereafter filed of record with \nthe Commission. \n     Finally, it should be noted – as the claimant’s attorney accurately explained in his brief – the \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n5 \nclaimant and his attorney made numerous efforts to obtain receipt of the second settlement check, \nand  exercised  a  demonstrable  degree  of  patience  before  the  claimant  finally  felt  compelled and \nbelieved  it  necessary  to  file  his  motion  for  a  late  payment  penalty  pursuant  to Ark.  Code  Ann. \nSection 11-9-802. \n      On June 15, 2023, claimant received a check in the mail from Liberty Mutual, however, \nthe  check  was  made  payable  to  “Mark  Peoples  PLC  and  Ruiz  Acevedo  Juan.”  The  claimant \nattempted  to  negotiate  the  check  without  success.  On  June  16,  2023,  the  claimant  informed  his \nattorney he had been unable to cash the JP settlement check. Immediately thereafter, on the same \nday the  claimant’s  attorney informed  the  respondents’ attorney of this  issue,  and  requested  the \nrespondents issue a new check to the claimant as soon as possible.   \nThereafter, on Thursday, June 22, 2023, the claimant’s attorney informed the respondents’ \nattorney the claimant still had not received his settlement check. On Monday, June 26, 2023, the \nclaimant’s  attorney  once  again informed  the  respondents’  attorney the  claimant  still  had  not \nreceived his check. On Wednesday, June 28, 2023, the claimant’s attorney once again informed \nthe respondents’ attorney the claimant still had not received his JP settlement check. At this time \nthe claimant’s attorney placed the respondents’ attorney on notice that if the check did not arrive \non or before close of business on Monday July 3, 2023, the claimant would seek a penalty for late \npayment pursuant to Ark. Code Ann. Section 11-9-802(c) (2023 Lexis Repl.). \n       In  an  email  dated  Friday,  July  7,  2023,  the  claimant’s  attorney  asked  the  respondents’ \nattorney for voluntary compliance: “Today marks 5 weeks since the JP hearing. Claimant has still \nnot been paid. Please ask Liberty to send him an additional $1,000 as late payment penalty. Let \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n6 \nme know by Wednesday whether they will agree to pay the penalty.  If they voluntarily agree to \npay penalty, I will forego any fee associated therewith.   If they do not agree,  I will move for a \n36%  penalty  for  willful  late  payment  and  an  associated  atty  fee. Thanks  much.” (Italics added; \nunderlining in original). In an email to the claimant’s attorney dated Monday, July 10, 2023, the \nrespondents’  attorney  advised  that  no  late  payment  penalty  was  applicable  to  the  alleged  late \npayment of a JP settlement check.   \n Consequently, since the claimant still had not received his JP settlement check, on July 10, \n2023,  the claimant’s  attorney  filed  a  motion  for  penalties  with  the  Commission,  requesting  the \nCommission issue an order requiring the respondents to pay claimant the sum of $6,800, which \nsum represents the $5,000 JP settlement amount, plus an additional $1,800, which the claimant’s \nattorney advised represented a 36% penalty based on Ark. Code Ann. Section 11-9-802(e) (2023 \nLexis  Repl.).  Alternatively,  the  claimant’s  attorney  requested  the  Commission  issue  an  order \nrequiring the respondents to pay the claimant an additional $1,000 as a 20% penalty pursuant to \nArk. Code Ann. Section11-9-802(c), as well as a maximum statutory attorney’s fee based on the \namount of any penalty awarded. Again, the claimant received the second settlement check on July \n31, 2023, some 59 days after the date the ALJ signed the JP Order on June 2, 2023. In response to \nthe claimant’s motion, the respondents filed  a motion for sanctions,  requesting the Commission \norder the claimant to pay their attorney’s fees and costs as they argued the claimant’s motion for a \nlate payment penalty on these facts was, “baseless and frivolous.”   \nDISCUSSION \n       While both claimant’s and respondents’ attorneys arguments were well and clearly made, \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n7 \nbased on the applicable law as applied to the facts of this case, I am compelled to find that both \nthe claimant’s and the respondents’ motions should be, and hereby are, denied for the following \nreasons.   \n       First, while Ark. Code Ann. Section 11-9-805 (2023 Lexis Repl.) does in fact characterize \nthe  Commission’s approval  of  either  a  partial  or  full  and  final  settlement  of  a  claim  to  be  an \n“award”  (see,  e.g.,  11-9-805  (a)(2)(A)  and  (B), et  seq.) Ark.  Code  Ann.  Section  11-9-802  is \nentitled, “INSTALLMENTS”, and all the provisions of Ark. Code Ann. Section 11-9-802 quite \nspecifically and clearly apply to the late payment of an, “installment of compensation.” See, Ark. \nCode Ann. Section 11-9-802(a), (b), and (c). All of these provisions specifically refer and apply \nto “installment” payments of compensation benefits, and not to a JP settlement “award” which is \nnot  made  in  installment  payments,  but  is  in  fact  and  of  course  made  in  a  lump  sum  payment. \nNowhere in Ark. Code Ann. Section 11-9-802 does there exist a penalty provision that purports to \napply  to  a  JP  settlement  agreement,  whether  the  JP  settlement  is  a  partial  settlement  of  all  but \nmedical benefits, or a full and final settlement of the entire claim, both including both medical and \nindemnity benefits.   \n       Second, as applicable in this case, pursuant to Ark. Code Ann. Section 11-9-805 (b)(1)(B): \n“After the Commission enters an order with regard to any full settlement, the commission does not \nhave jurisdiction over any claim for the same injury or any results arising from it. Ark. Code Ann. \nSection 11-9-805 does not contain any penalty for the late payment of a JP settlement award. While \nit is both egregious and unacceptable for it to take some 59 days for the respondents to deliver the \nclaimant’s settlement check to him, there exists no provision in the Act giving the Commission the \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n8 \nstatutory authority to levy a penalty against a respondent who fails to timely deliver a claimant’s \nsettlement check to him or her, much less a statute that provides the Commission with any guidance \nconcerning how any such penalty – if one did in fact exist – shall be determined. Moreover, if their \nexisted  any  case  law  providing  the  Commission  the  authority  to  levy  a  penalty  against  the \nrespondents on these facts, I am reasonably certain the claimant’s most capable and experienced \nattorney would not only be aware of it, but he would have cited it in his brief. Therefore, without \nany statutory or other mandatory authority allowing the Commission to levy a penalty in a case \nsuch as this one, it has no such authority. \n       Third, while it is well-settled the Commission retains jurisdiction to enforce the terms and \nprovisions of the JP settlement agreement to ensure – for example in a case like this one – that a \nclaimant receives his settlement check, in this case the claimant did receive his settlement check, \nalbeit  in  a  highly  untimely  manner.  Arguably,  if  there  were  a  provision  in  either  or  both  the  JP \nsettlement agreement and/or order specifically stating the respondents must deliver the claimant’s \nsettlement check to him on or before a date certain or they would be subject to some specifically \nagreed  penalty  (similar  to,  for  example,  a  liquidated  damages  provision  in  a  contract),  the \nCommission would in fact have the authority to enforce this JP settlement agreed penalty provision \njust  as  it  undoubtedly  now  has  to  enforce  any  and  all  of  the  terms  and  provisions  of  the  JP \nsettlement agreement. However, no such provision exists in this particular JP settlement agreement \nor  order,  nor  in  any  other  of  the  standard  JP  settlement  agreements  and  orders  which  the \nCommission approves and/or signs and files of record. It is unlikely either party would ever want \nto include such a provision, as such language would almost certainly prove to be a disincentive to \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n9 \na  JP  settlement  agreement  for  one  or  both  parties.  Therefore,  if  the  claimant  has  any  remedy \nwhatsoever under the Act on these facts, it does not and cannot arise out of any of the provisions \nof Ark. Code Ann. Section 11-9-802. \n Likewise, concerning the respondents’ motion for sanctions in the form of attorney’s fees \nand  costs  for  having  to  respond  to  the claimant’s motion,  I find the  respondents’ motion  to  be \nwithout  either  precedent,  or  merit.  It  is  somewhat  difficult  for  this  ALJ  to  understand  how  the \nrespondents’  can  reasonably  expect me  to  award  sanctions  against  either/or  a  claimant  or  his   \nattorney when both the claimant and his attorney in good faith agree to proceed with a JP settlement \nhearing with the undeniably reasonable expectation that both the claimant and his attorney would \nreceive their checks in a timely manner. Indeed, any reasonable claimant and his attorney would \nexpect the claimant would receive his settlement check soon after the signing, entry, and issuance \nof the JP Order. Most certainly a claimant should expect to receive his settlement check well before \n59 days after the signing, entry, and issuance of the subject JP Order.   \n       While the record does not contain specific facts as to why and how the first check apparently \ninaccurately listed the claimant’s name, and in addition listed his attorney’s name, as a payee on \nthe  first  check  issued  some  15  days  after  the  JP  Order  was  signed;  or  whether  the claimant’s \nattorney could simply have signed the check so a bank may have cashed it (but if the claimant’s \nname  was  incorrectly/inaccurately  listed  as  the  payee  on  the  check,  would  a,  or  any,  bank  cash \nsuch a check?), the record also is devoid of any evidence why it should take the respondents an \nadditional  44  some-odd  days –  almost  one  and  one-half  (1  ½)  months –  to  issue  and  deliver  a \nsecond settlement check to the claimant. Regardless of the reason(s), the evidence in the record \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n10 \ndoes not sufficiently explain why it took the respondents such a long time to get the claimant a \nsecond check that listed the correct payee, and accurately stated his name. Most respectfully, but \nalso most sincerely, rather than file a motion for sanctions against the claimant and/or his attorney \non  these  facts,  the  respondents  should  be  thankful  the  claimant  and  his  attorney  did  not  file  a \nmotion for contempt and/or sanctions against them. The respondents motion for sanctions in the \nform of attorney’s fees and costs is hereby respectfully denied on these facts or, more accurately \nstated, the lack of facts/evidence justifying the granting of such a motion.   \n       These and all other respondents may also want to consider that if a claimant cannot expect \nto receive a JP settlement check  before the expiration almost 60 days – some two (2) months – \nafter the date of the JP Order (and more likely than not long after the respondents have filed the \nnecessary form(s) with the Commission to close the claimant’s claim) both a claimant and/or his \nattorney may very well understandably be less willing to settle a case and proceed with a JP hearing \nwithout the respondents’  attorney  being  able  to  have  the  settlement  checks  in  hand  and  able  to \npresent  them  on  the  record  at  the  time  of  the  hearing.  And  this  could  result  in  the  delay  of  JP \nsettlement agreements and hearing dates, which would not be a good situation for either claimants \nor respondents.                       \n Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. When the ALJ found the subject joint petition settlement agreement to be \nin the parties’ best interests; and the ALJ signed, and caused the JP Order \nto be entered of record, and issued, the Commission lost jurisdiction over \nall aspects of this claim except for its jurisdiction and ability to enforce \nthe  specific  terms  and  provisions  of  the  settlement  agreement.  There \nexists no evidence herein that either party failed to abide by the specific \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n11 \nterms and provisions of the subject joint petition settlement agreement.   \n \n2. Ark.  Code  Ann.  Section  11-9-802  does  not  apply  to  the  alleged  late \npayment  of  an  award  made pursuant  to  the  ALJ’s  approval  of  a  joint \npetition settlement agreement. Consequently, the respondents cannot be \ndeemed liable for the alleged late payment of a joint petition settlement \naward pursuant to Ark. Code Ann. Section 11-9-802.   \n \n3. The  respondents  have  failed  to  meet  their  burden  of  proof  that  the \nclaimant and/or his attorney should be subject to sanctions in the form of \nattorney’s  fees  and  costs.  On  these facts,  I  cannot  find  the  claimant’s \nand/or his attorney’s motion to be either “baseless” or “frivolous”. \n   \n      \n     IT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205106 JUAN D. RUIZ ACEVEDO, EMPLOYEE CLAIMANT PORTILLOS CONSTR., INC., EMPLOYER RESPONDENT OHIO SECURITY INS. CO./ LIBERTY MUTUAL INS. GRP., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED NOVEMBER 6, 2023 Single issue presented for decision base...","fetched_at":"2026-05-19T23:00:10.723Z","links":{"html":"/opinions/alj-H205106-2023-11-06","pdf":"https://labor.arkansas.gov/wp-content/uploads//ACEVEDO_JUAN_H205106_20231106.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}