CLAIM NO. E912333
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 30, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICHAEL A. FRIEDMAN, Attorney at Law, Texarkana, Arkansas.
Respondents represented by the HONORABLE KEITH M. McPHERSON, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on September 11, 2001. In that opinion and order, the Administrative Law Judge found in relevant part that on October 14, 1999, the claimant sustained a compensable hernia injury. In addition, the Administrative Law Judge found that the respondents have controverted the payment of all benefits in this claim subsequent to March 21, 2000. After conducting a de novo review, we find that the claimant failed to establish by a preponderance of the evidence that he sustained a compensable hernia injury on October 14, 1999 pursuant to Ark. Code Ann. § 11-9-523. Therefore, the decision of the Administrative Law Judge in this regard must be reversed. In addition, we find that the respondents did in fact controvert the claimant’s cervical surgery. Therefore, we affirm the Administrative Law Judge’s attorney fee award.
1. Hernia
Ark. Code Ann. § 11-9-523 provides in relevant part:
(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the Workers’ Compensation Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That the pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter; and
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.
In the present case, there is no dispute at present that the claimant sustained compensable cervical and low back injuries on October 14, 1999 when he was attempting to move and lift a large and heavy sheet of metal, but slipped and fell, allowing the sheet of metal to come to rest on top of him. There is no dispute that the sheet of metal weighed between 400 and 700 pounds, and that the claimant strained to prevent the metal from striking him in the stomach or abdominal region. The claimant strained, holding the end of the metal out of his groin area in an attempt to keep it from settling down. However, after his initial lunge, the claimant realized that he was in fact trapped and allowed the sheet of metal to settle in as he held it.
However, Commissioner Turner’s dissenting arguments notwithstanding, there is also no dispute that the claimant experienced absolutely no pain or symptoms in the abdominal region until at least sometime in November of 1999, at least two weeks after the date of the incident which the claimant alleges caused his hernia currently at issue. Because the claimant experienced absolutely no symptoms in the abdominal region for over two weeks after the incident at issue, it is impossible for the claimant to establish that there was severe pain in the hernial region, that the pain caused him to cease work immediately, that he gave notice of the occurrence of any type of abdominal injury within 48 hours, or that any physical distress in the abdominal region required the attendance of a licensed physician within 72 hours after the sheet metal incident. Consequently, because the claimant experienced no symptoms in the abdominal region for over two weeks after the incident, the claimant has failed to establish the second, third, fourth, and fifth requirements to establish a compensable hernia under Ark. Code Ann. § 11-9-523.
In addition, the only expert medical opinion allowed into the record by the Administrative Law Judge on the issue of whether the claimant’s subsequently diagnosed hernia was caused by the October 14, 1999 incident was the August 4, 2000 opinion of Dr. Yeshwant Reddy, and Dr. Reddy has opined that, under the circumstances presented, the claimant’s diagnosed umbilical hernia is not work related. Because we accord substantial weight to Dr. Reddy’s expert medical opinion on this issue, we also find that the claimant has failed to establish that his hernia occurred immediately following the result of any sudden effort, severe strain, and application of force directly to the abdominal wall which occurred during the October 14, 1999 sheet metal incident. Consequently, we are constrained to also find that the claimant has failed to establish the first requirement to establish a compensable hernia under Ark. Code Ann. § 11-9-523.
2. Attorney’s Fees
The Arkansas Workers’ Compensation Law specifically provides that the Commission shall direct that a fee be paid to the claimant’s attorney “whenever the Commission finds that a claim has been controverted, in whole or part. . . .” Ark. Code Ann. § 11-9-715 (a) (2) (Supp. 1996) (previously codified at Ark. Stat. Ann. § 81-1332 (Cumm. Supp. 1985)); see, also, Tyson Foods, Inc. v. Fatherree, 16 Ark. App. 41, 696 S.W.2d 782 (1985). Making respondents liable for at least a portion of the attorney’s fees serves the legitimate social purposes of discouraging oppressive delays in recognition of liability, deterring arbitrary and capricious denials of claims, and insuring the ability of a necessitous employee to obtain adequate legal representation. See,Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W.2d 480
(1976). Thus, the purpose of determining whether or not a claim has been controverted, and by whom, “is to place the burden of litigation expense upon the party; which made it necessary.” Henning, supra; Buckner v.Sparks Regional Medical Center, 32 Ark. App. 5, 794 S.W.2d 6223 (1990). Consequently, whether a claim is controverted must be determined from the circumstances of each particular case. Buckner, supra, MasoniteCorporation v. Mitchell, 16 Ark. App. 209, 699 S.W.2d 409 (1985); Climerv. Drake’s Backhoe, 7 Ark. App. 148, 644 S.W.2d 637 (1983). The mere failure to pay compensation benefits does not amount to controversion, in and of itself. Revere Copper Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). Likewise, controversion may not be found where the respondent accepts its compensability but delays payment in a reasonable attempt to investigate the extent of the disability. Horseshoe Bend v.Sosa, 259 Ark. 267, 532 S.W.2d 182 (1976); Hamrick v. The ColsonCompany, 271 Ark. 740, 610 S.W.2d 281 (1981). However, assuming a position which requires an injured employee to retain an attorney to take the actions necessary to assure that the employee’s rights are protected may constitute controversion. New Hampshire Insurance Co. v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984); Turner v. Trade Winds Inn, 267 Ark. 861, 592 S.W.2d 454 (1980); Buckner, supra.
In the present case, the only prehearing order made a part of the record in this case, a prehearing order filed on October 24, 2000, indicates that the claimant at that time contended that surgery has been recommended by Dr. Patterson for his neck, and that the claimant seeks medical and indemnity benefits. The respondents contended that the claimant has received all temporary, total, and medical benefits to which he is entitled as a result of the October 14, 1999 incident. Therefore, the October 24, 2000 prehearing order, which involved litigation including the claimant’s attorney and the respondents’ attorney, indicates that the respondents had clearly controverted their liability for Dr. Patterson’s neck surgery, in addition to having admittedly controverted any liability for the claimant’s hernia or for any temporary total disability benefits after March 21, 2000. Moreover, the respondents have also conceded in their brief on appeal that the respondents did not accept liability for Dr. Patterson’s surgery, first proposed in February of 2000, and requested for authorization in April of 2000, until after respondents had taken a sworn deposition from Dr. Patterson on August 25, 2000. Therefore, just like their contentions in the prehearing order filed on October 24, 2000, the respondents’ action in invoking the legal process by taking a sworn deposition of Dr. Patterson prior to accepting Dr. Patterson’s proposed surgery, indicates that the claimant was constrained to retain an attorney to protect his rights to surgery before the respondents were willing to accept liability for Dr. Patterson’s surgery. In reaching this decision, we note that the respondent asserts on appeal that it was not until the deposition was obtained that the respondents purportedly obtained a “proper” medical opinion stated within a reasonable degree of medical certainty required by Ark. Code Ann. § 11-9-102(16)(B). However, we note that Dr. Patterson’s April 19, 2000 opinion recommends surgery and indicates that Dr. Patterson is going to “put in for” surgery. We are somewhat at a loss as to how the respondents could suggest that they did not controvert the claimant’s entitlement to surgery when the respondents did not accept liability for Dr. Patterson’s proposed surgery until after taking a sworn deposition, some four months after Dr. Patterson “put in for” his proposed fusion surgery. Moreover, if the respondents required some type of clarification from Dr. Patterson for “investigation,” as opposed to “litigation,” it is difficult to perceive how that clarification could require a four month delay or why that type of clarification might require a sworn deposition. For all of the above reasons, we agree with the Administrative Law Judge’s conclusion that the respondents assumed a position which required the claimant to retain an attorney to protect the claimant’s rights with respect to Dr. Patterson’s proposed fusion surgery which he “put in for” in April of 2000, but which was not accepted until either August of 2000 (if the assertions in the respondents’ brief are credible), or until some time after October 24, 2000 (if the contentions in the Administrative Law Judge’s prehearing are accurate).
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to establish that he sustained a compensable hernia injury. In addition, we find that the claimant’s attorney is entitled to the attorney’s fees at issue. Therefore, we find that the decision of the Administrative Law Judge must be reversed in part and affirmed in part.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996).
For prevailing in part on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
MIKE WILSON, Commissioner
I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the majority opinion finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable hernia injury on October 14, 1999. However, I must respectfully dissent from the majority opinion finding that the respondents controverted their liability for Dr. Patterson’s neck surgery. In my opinion, the respondents never contested the compensability of the claimant’s cervical or lumbar injuries.
The evidence shows that the respondents did temporarily suspend permission for the claimant’s recommended cervical surgery, based upon the representations made by Dr. Patterson that the claimant’s expectations regarding the outcome of the surgery were not reasonable. Dr. Patterson noted that the claimant was “more interested in talking about his workers’ compensation problems than about his operation.” After further investigation, however, in the form of a deposition of Dr. Patterson taken on August 25, 2000, the respondents promptly authorized and paid for this procedure. The respondents should not be required to pay an attorney’s fee for any medical benefits the respondents voluntarily agreed to pay.
Therefore, I must respectfully concur in part and dissent in part from the majority opinion.
_______________________________ MIKE WILSON, Commissioner
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I, too, must respectfully concur in part and dissent in part from the majority opinion. While I concur in the finding that respondents controverted claimant’s cervical surgery, I must dissent with regard to claimant’s hernia injury. Upon my de novo review of the entire record, I find that claimant did prove by a preponderance of the evidence that he sustained a compensable hernia injury on October 14, 1999.
While the majority opinion finds that claimant failed to satisfy the second, third, fourth, and fifth requirements of Ark. Code Ann. §11-9-523, I disagree. In satisfaction of the second requirement of §11-9-523, the claimant testified that he experienced burning pain in his hernial region not long after a sawhorse fell, causing a 700-pound of sheet metal to fall on top of him. Claimant testified that while he managed to hold some of this weight off of him, a corner of this metal piece sat directly on top of his navel. He further testified that he also injured his back and neck while straining to hold the sheet metal up. While the majority opinion acknowledges this testimony, it reasons that:
Because the claimant experienced absolutely no symptoms in the abdominal region for over two weeks after the incident at issue, it is impossible for claimant to establish that there was severe pain in the hernial region, that the pain caused him to cease work immediately, that he gave notice of the occurrence of any type of abdominal injury within 48 hours, or that any physical distress in the abdominal region required the attendance of a licensed physician within 72 hours after the sheet metal incident.
I disagree and find that claimant did satisfy all the statutory requirements to prove a compensable hernia injury. Claimant testified that he informed Dr. Chandler, his treating physician, that he had pain in his abdominal and groin area when he initially presented. He further testified on cross-examination that Dr. Chandler believed his injury to be work-related:
So five months after you have a heavy lifting accident at work, your doctor prepares a letter or a record saying you probably didn’t realize that you had a hernia because you had other injuries too. Is that basically what you are saying today?
A. Yes.
(Transcript, P. 37).
In fact, Dr. Yeshwant Reddy, who performed an independent evaluation on respondents’ request, noted on August 4, 2000, “On May 19, 2000, Dr. Rodney R. Chandler, M.D., in his note states that Mr. Barnard has been suffering from hiatal and umbilical hernia that have gotten progressively worse since his incident on October 14, 1999. He recommends umbilical hernia repair.” (Joint Ex., p. 49).
Bryan Smith, neuropsychologist, noted on March 10, 2000, “[claimant] also complained of burning in his stomach, under the left rib cage, on the side of his naval, but was upset that no one seemed concerned about this.” (Claimant’s Ex. 1, p. 1).
Dr. Charles Mabry reported on May 22, 2000:
[claimant] noticed a swelling in and around his umbilicus. This was first heralded by tingling and burning in and around his umbilicus approximately 1-2 weeks prior to the appearance of the hernia. He also noticed some bruising in his upper epigastric shortly after the plate fell on him and continues to have some pain in his upper epigastric area. (Joint Ex., p. 43).
Based on the nature of claimant’s injury and the fact that the sheet metal rested directly on claimant’s naval and abdominal area (a fact that is not disputed), it is plausible that claimant would have had pain in that area — one undeniable physical area of his injury.
I also find that the claimant presented credible testimony of his injury and of his notification to medical personnel of such injury. Upon psychological evaluation, Smith reported in summary, “There was no indication of difficulty suggesting response bias and nothing to suggest that he was consciously feigning any difficulties.” (Claimant’s Ex. 1, p. 7).
Based on claimant’s description of his accident (the fact that the sheet metal fell directly on his naval area), his testimony about his actual pain, and other psychological and medical evidence, I find that claimant did meet his burden of proof that he sustained a compensable hernia injury, pursuant to Ark. Code Ann. § 11-9-523.
For the foregoing reasons, I must respectfully concur in part and dissent in part from the majority opinion.
_________________________________ SHELBY W. TURNER, Commissioner