CLAIM NOS. E214467 E216882
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JULY 30, 2008
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant is not represented by counsel, but appears pro se.
Respondent represented by HONORABLE GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Intervenor represented by HONORABLE DALE GRADY, Attorney at Law (Retired), Bryant, Arkansas.
ORDER
Presently before the Commission are Intervenor’s June 10, 2008 Motion for Contempt and for Issues under the “Due Process Clause” of the 14th Amendment to the U.S. Constitution and AR Constitution and Judge Blood’s Testimony; June 11, 2008, exhibit of correspondence from attorney Michael Boyd to counsel for respondent seeking reimbursement for medical mileage which we will treat as a Motion to Introduce Additional Evidence; June 12, 2008 Motion for Reconsideration to Set Aside and/or Modify Full Commission Order of 03/13/08 and Grant Intervenor’s Motion for All Post-Hearing Proffered Exhibits (Letter Motion and Brief of 02/02/08) Blue-Backed Medical Travel issue joined and Motion for Consideration of additional Appeal Issues being # 5,7,14,15, 16 on Notice of Appeal — Equitable Estoppel Applies to the WCC and Parties
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Especially to Respondents (and Claimant) and Motion for Specific Performance on Specific Agreement, Reliance on Agreement and Stipulation on Record in Opinion of 02/11/08; June 13, 2008 Motions Intervenor is Entitled to a Fee on the Radio-Frequency Procedure of Dr. Thomas Hart in Issue, for Order of Accounting and for CNA Representative to Appear before the Commission, for Additional Evidence and Testimony before the Commission, to-wit: the Full Commission (Deborah Williams v.McDonald’s; WCC E901415 — Full-Comm-07/03/2001); June 16, 2008 Motion to Set-Aside the ALJ Opinion of 02/11/08 and Full Comm. Order of 03/13/08;In Part Accept Intervenor’s Proffered Blue Backed Post-Hearing Exhibits — Being Procured by Fraud/Conspiracy of Respondents’ attorney Guy Wade and ALJ Dale Douthit; June 18, 2008, Motion for Contempt Sanctions Fraud/Conspiracy (“Trickery”) by Respondents’ attorney Guy Wade and ALJ Douthit; June 18, 2008 Final Letter Brief Supplement to Final Motion (06/18/2008); Respondents’ June 24, 2008, Response thereto; Intervenor’s June 24, 2008, Letter to Respondents’ attorney; Respondents’ Response to Intervenor’s Motion faxed June 24, 2008; and Claimant’s Motion to Dismiss Attorney, Supplement to Motion to Dismiss Attorney, Intervenor’s Verified Response to Claimant’s Motion to Dismiss Attorney and attorney Michael Boyd’s Response thereto.
It is our further understanding that additional Motions have been filed by Intervenor herein which have yet to be submitted to the Full Commission. These Motions
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consist of correspondence faxed to the Commission on July 10, 2008, July 14, 2008, and July 15, 2008. These faxes appear to be in response to the June 30, 2008 fax which Respondents’ filed in response to Intervenor’s June 24, 2008 fax. The latest Motion is entitled Motion to Strike, to Set-Aside and to Remand. After consideration of all Motions presently before the Commission, we find that the Claimant’s Motion to Dismiss Attorney should be and hereby is granted, and that all other Motions should be, and hereby are denied. Notwithstanding this order to relieve Attorney Boyd as counsel for claimant, respondent carrier is ordered to comply with the February 11, 2008, Administrative Law Judge opinion awarding Mr. Boyd an attorney’s fee on the medical expenses awarded.
The remaining Motions filed by Intervenor, all address, in some form or another, Intervenor’s entitlement to attorney’s fees and the lack of Intervenor’s ability to receive relief of this issue at the November 14, 2007, hearing. Although payment of past attorney’s fees was listed as an issue in the Prehearing Order, the parties agreed at the hearing to reserve this issue. Specifically, the parties agreed as follows:
THE COURT: . . . It is my understanding today that there has been an additional agreement that Issue No. 2, related to unpaid travel expenses, will be reserved today. Is that everyone’s agreement: Mr. Boyd:
MR. BOYD: Yes, Your Honor.
THE COURT: Mr. Wade?
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MR. WADE: Yes, Your Honor.
THE COURT: And Mr. Grady?
MR. GRADY: Well, I suppose so, Your Honor, from what we said.
THE COURT: Okay. What we talked about off the record was that the travel expenses that I guess are being claimed have not actually been submitted yet, and since they have not been submitted, that issue is going to be reserved at this point. Is that agreeable to you, Mr. Grady?
MR. GRADY: Well, I thought Guy said they were going to pay me a fee on them.
THE COURT: Well, I think Mr. Wade has stated, and I’ll let you tell me again for the record, Mr. Wade, that if those have not been paid, that an attorney’s fee will be paid to you for whatever mileage has not been paid. Is that correct, Mr. Wade.
MR. WADE: That is correct, Your Honor.
Intervenor now contends that since the hearing, claimant properly submitted requests for medical mileage, respondents have paid claimant for same, but have not paid an attorney’s fee on this medical mileage. Intervenor has accused the Commission, the respondents’ attorney, and the administrative law judge of manipulating Intervenor in an effort to deny him an attorney’s fee. Intervenor has since submitted a copy of a check for an attorney’s fee paid to him on the medical mileage in question. Whether Intervenor has received payment of attorney’s fees on past medical expenses, including but not limited medical mileage is not properly before the Full Commission as
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that issue was specifically reserved by all the parties at the November 17, 2007, hearing. Rather than bombard the Clerk’s office and the Full Commission with this litany of motions, Intervenor’s proper venue should have been to seek a contempt hearing before an Administrative Law Judge. However, as Intervenor has filed these motions with the Full Commission, we take this opportunity to address, Intervenor’s entitlement to attorney’s fees on reasonable and necessary medical expenses, including but not limited to medical mileage that have previously been awarded by an Administrative Law Judge. This claim has been the subject of several previous hearings. The first hearing was held on August 30, 1999, on the issues of controversion of medical benefits, the extent of permanent disability, statute of limitation, and attorney’s fees. After an appeal to the Full Commission, claimant prevailed on all issues. A second hearing was held on September 18, 2000, on the issues of penalties and attorney’s fees, in which the claimant prevailed. A third hearing was held on February 14, 2002. As a result of this third hearing, the Administrative Law Judge found in part;
“The respondents shall pay all reasonable hospital and medical expenses arising out of the injury of November 3, 1991 and March 9, 1992.”
An Accounting was ordered by the Administrative Law Judge on November 6, 2002. Finally, an Agreed Order was issued by the Administrative Law Judge on June 21, 2004, which specifically states:
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Presently before the Commission are Claimant’s claims for additional benefits including, but not limited to, attorneys fees, contempt, sanctions and penalties. In an effort to resolve these and any other issues remaining up to the date of the entrance of this Order, Respondents have paid $2,273.99 representing attorney’s fees for medical benefits which remain outstanding. In addition, the Respondents agree to pay a total of $7,726.01. This total amount is to be paid in the sums of $3,863.01 to the claimant, Rod Bridges, with the balance of $3,863.00 payable to his attorney, Dale Grady. Upon payment of said sums and the execution of this Order, all outstanding issues and payments shall be determined to be resolved as of the date of this Order.
By the entrance of this Order, the parties also acknowledge their agreement that any attorneys fees accrued in the future, shall be paid on a calendar year quarterly basis.
Intervenor was relieved as claimant’s attorney through an order of the Commission filed January 31, 2006.
As this claim involves injury dates from 1991 and 1992, we must look to the statute governing attorney’s fees in effect at that time. A.C.A. § 11-9-715(e) (1987) states:
Fees for legal services rendered by the claimant’s attorney with respect to medical expenses of a repeated and continuing course of treatment controverted by the employer or carrier shall by payable only in connection with such controverted expenses incurred during a two-year period beginning with the first date on which such expenses were incurred.
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Claimant’s medical treatment awarded as a result of the 2002 hearing has been of a repeated and continuing course of treatment. This fact has even been argued by Intervenor in several of his motions, to-wit: “incidentally, Dr. Thomas Hart was in the chain of referral of Dr. Ketchum who clearly was in the chain of controversion . . .” and “It cannot be questioned that Dr. Ketchum (left his practice) and cl[aimant] was eventually referred to Dr. Hart for chronic pain management — in the chain of referral which was controverted . . .”. While respondents may have continued to pay Intervenor an attorney’s fee on medical benefits on a quarterly basis ever since the award of additional medical expenses following the February 14, 2002, hearing, Intervenor was only entitled to an attorney’s fee for the first two years following the date that the claimant first incurred medical expenses for his continued medical maintenance after the hearing as such treatment was of a continuing and repeated nature. A.C.A. § 11-9-715(e) (1987). As Intervenor is not entitled by law to an attorney’s fee on the medical benefits from this repeated and continuing course of treatment, Intervenor’s Motions for Contempt and for Issues under the “Due Process Clause” of the 14th Amendment to the U.S. Constitution and Arkansas Constitution and Judge Blood’s testimony, exhibit of correspondence from attorney Michael Boyd to counsel for respondents seeking reimbursement for medical mileage which we will treat as a Motion to Introduce Additional Evidence; Motion for Reconsideration to Set Aside and/or Modify Full Commission Order of 03/13/08 and Grant Intervenor’s Motion for All Post-Hearing Proffered Exhibits (Letter Motion and Brief of 02/02/08) Blue-Backed Medical Travel issue joined and Motion for consideration of additional Appeal Issues being # 5,7,14,15,
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16 on Notice of Appeal — Equitable Estoppel Applies to the WCC and Parties Especially to Respondents (and Claimant) and Motion for Specific Performance on Specific Agreement, Reliance on Agreement and Stipulation on Record in Opinion of 02/11/08; Motions Intervenor is Entitled to a Fee on the Radio-Frequency Procedure of Dr. Thomas Hart in Issue, for Order of Accounting and for CNA Representative to Appear before the Commission, for Additional Evidence and Testimony before the Commission, to-wit: the Full Commission (Deborah Williams v. McDonald’s WCC E901415
— Full-Comm-07/03/2001); Motion to Set-Aside the ALJ Opinion of 02/11/08 and Full Comm. Order of 03/13/08 In Part Accept Intervenor’s Proffered Blue Backed Post-Hearing Exhibits — Being Procured by Fraud/Conspiracy of Resp. Attorney Guy Wade and ALJ Dale Douthit; June 18, 2008 Motion for Contempt Sanctions, Fraud/ Conspiracy (“Tricker”) by Respondents Attorney Guy Wade ALJ Douthit; Final Letter Brief Supplement to Final Motion (06/18/2008); and June 24, 2008 letter to Attorney Guy Wade, are hereby rendered moot. The only issue remaining before the Full Commission is the issue appealed by Intervenor regarding the attorney’s fee awarded only to claimant’s attorney of record at the time of the hearing on the radio frequency denervation treatment.
Not only has Intervenor, Dale Grady, filed this array of needless motions before the Full Commission, but he has also made baseless and inflammatory accusations against Guy Wade and the Administrative Law Judge. Intervenor’s multiple
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filings and publishing of these comments to the Governor’s office clearly amount to harassment and abuse. Intervenor has abused the system by filing these motions with the Full Commission rather than to attempt to work peacefully with the respondents on the attorney’s fee issue. Moreover, if Intervenor had not brought this matter to our attention, the respondent carrier may have continued to pay him an unwarranted and unauthorized attorney’s fee every time Intervenor made such demands. Granted the fee was not paid timely, but it was paid and with interest nonetheless. Pursuant to Ark. Code Ann. § 11-9-714 and 11-9-717, we hereby find that Intervenor has filed these motions without reasonable grounds and that said motions are not well grounded in fact nor warranted by existing law. Accordingly, we hereby order Intervenor to pay costs and attorney’s fees to respondents’ attorney in the amount of $500.00.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
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