CLAIM NO. E803946
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 26, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Reversed and remanded.
OPINION AND ORDER
The claimant appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed November 22, 1999. In that opinion and order, the administrative law judge found, in relevant part, that the claimant has not shown by a preponderance of the evidence that she is entitled to an attorney’s fee on the amount of TPD benefits paid to claimant, based either on the language of A.C.A. § 11-9-715(a)(2)(B)(ii) (Repl. 1996), or on the doctrine of estoppel. After conducting a de novo
review of the entire record, the Full Commission finds that the claimant’s attorney is entitled to a fee on the temporary partial disability benefits, and we remand this case to the administrative law judge to determine the appropriate fee. Because we find that the claimant’s attorney is entitled to a fee under the applicable statute, we need not address the claimant’s alternative estoppel theory.
The relevant facts in this case are not in dispute. The claimant sustained a compensable injury to her wrist on December 3, 1997. Benefits were paid, however, a dispute ultimately arose between the parties over additional benefits. The claimant hired an attorney and filed a claim for additional worker’s compensation benefits. A prehearing conference was held October 20, 1998, on which date a prehearing order was also filed. The parties stipulated that the claimant’s average weekly wage, temporary partial disability compensation, and temporary total disability compensation rates would be discussed and stipulated at the hearing. The parties agreed that the issues to be litigated were limited to temporary total disability, temporary partial disability, and controversion for the purpose of an attorney’s fee. The claimant alleged that she was returned to light restricted duty and her rate of pay was reduced to $6.00 an hour, and because of the restricted duties she only worked approximately 30 hours weekly. The respondent alleged that the claimant was not entitled to temporary partial disability, because she was offered the option of working more hours at better pay but refused that job. The administrative law judge set the matter for a hearing on January 6, 1999.
On December 7, 1998, approximately one month before the scheduled hearing, the respondent’s attorney, Mike Roberts, provided the Commission with an itemized list of the respondent’s calculations of the claimant’s entitlement to the controverted weekly temporary partial disability compensation. The respondent also indicated in relevant part: “Thus, Respondents have accepted Claimant’s weekly TPD benefits from the period ending 1-2-98 to the period ending 11-6-98 and will pay $1,783.10 to the Claimant. By copy of this correspondence to Claimant’s attorney, I am notifying him of same, and would request that he advise if he agrees with my calculations.” Mr. Roberts also wrote to Phillip Wilson, the claimant’s attorney, on December 7, 1998:
Respondents have advised that they will pay the Claimant the TPD in dispute. I am in the process of computing the weekly TPD in question and will provide you with my calculations.
As you know, the issues listed for the upcoming hearing (1-6-99) were TPD/TTD. Please advise if there is a necessity now for the scheduled hearing.
Mr. Wilson wrote back to Mr. Roberts on January 4, 1999:
This is to confirm that my client has accepted the agreement set out in your December 7, 1998 letter. In addition, it is also agreed that the attorney’s fee will be paid accordingly.
Mr. Roberts indicated in correspondence dated January 5, 1999 that he was not authorized to agree to pay an attorney’s fee. However, Mr. Roberts said he had written his client asking if they would pay a statutory fee, and that he would advise Mr. Wilson of his client’s decision. Meanwhile, under the impression that the parties had reached an agreement regarding temporary partial disability compensation, the administrative law judge had cancelled the scheduled January 6, 1999 hearing and returned the matter to “general files.”
Mr. Roberts indicated to Mr. Wilson in January 8, 1999 correspondence that the respondent would not agree to pay an attorney’s fee:
My client takes the position that you are not entitled to an attorney’s fee with respect to the TPD it voluntarily paid.
Thanks for your cooperation in this case.
Additional prehearing conferences were held in February, 1999, and August, 1999, and an administrative hearing was held on October 13, 1999. The claimant alleged entitlement to, among other things, a controverted attorney’s fee based on the amount of temporary partial disability paid by the respondent. Alternatively, the claimant contended that she was entitled to the attorney’s fee based on the doctrine of estoppel.
Commission’s Exhibit 1 contains a list of agreed stipulations, as expressed by the respondent in correspondence dated September 8, 1999. The parties stipulated that the respondent had controverted the temporary total disability and temporary partial disability compensation sought by the claimant, and that a hearing had been set for January 6, 1999. The parties stipulated that on or about December 7, 1998, the respondent agreed to accept and pay the temporary partial disability at issue, but that the respondent did not accept paying an attorney’s fee. The parties stipulated that the respondent had paid temporary partial disability “without objection by the Claimant or Claimant’s attorney.” Further, it was stipulated that “There is no recollection of any telephone conversations between myself and Mr. Wilson, regarding the attorney’s fee or TPD issues.” Pursuant to a strict construction of Ark. Code Ann. § 11-9-715(a)(2)(B)(ii), stated the respondent, “no attorney’s fee can be allowed unless there has been (1) a controversion and (2) an award of benefits. . . . Wal-Mart agrees that it controverted the TPD benefits which it eventually paid; however, there was no award.”
I. Controversion of Benefits for Attorney’s Fee
It has been long recognized that making an employer liable for attorney’s fees serves legitimate social purposes such as discouraging oppressive delay in recognition of liability, deterring arbitrary or capricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and competent legal representation. Aluminum Co. of America v.Henning, 260 Ark. 699, 543 S.W.2d 480 (1976). In the instant case, there is no dispute that the respondent controverted the benefits at issue. In fact, as discussed above, the respondents have stipulated to their controversion.
II. “Award” of Benefits for Attorney’s Fee
Arkansas Code Annotated § 11-9-715(a)(2)(B)(ii) provides that fees shall be allowed only on the amount of compensationcontroverted and awarded. As we interpret the requirements of Section 11-9-715(a)(2)(B)(ii), where a respondent controverts an injured employee’s entitlement to certain benefits, but later accepts liability prior to a hearing on the merits, the claimant’s attorney may still request a hearing for an attorney’s fee on those controverted benefits, as the claimant’s attorney did in the present case. Where as here, there is no dispute that the respondents controverted but then paid the benefits on which an attorney’s fee is sought, we find that the claimant has established entitlement to an award of those benefits for purposes of the claimant’s attorney seeking an attorney’s fee under Ark. Code Ann. § 11-9-715(a)(2)(B).
To the extent that the respondents assert on appeal that a claimant’s attorney’s fee can be avoided on temporary partial disability benefits which are initially controverted but later paid prior to a hearing, we point out that Ark. Code Ann. §11-9-715(d)(3) is very specific as to circumstances under which a claimant’s attorney is not entitled to a controversion fee based on respondent’s agreement to pay benefits made prior to a hearing, and clearly the facts of the present case do not meet the criteria set out in Section 715(d)(3). Moreover, there is no evidence that a preliminary conference was held in the present case at which the employer agreed to accept liability for the benefits at issue for a loss of wage earning capacity. Furthermore, we see no requirement in Ark. Code Ann. § 11-9-715(a)(2)(B)(ii) that an “award” of controverted benefits must precede the respondent’s payment of benefits, for the claimant’s attorney to be entitled to a fee, as the respondent seems to suggest. Strictly construing the law, as we are required to do, we cannot add a new procedural requirement which is not present in the statute.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the respondent controverted the temporary benefits at issue, and we find the claimant is entitled to an award of her controverted temporary benefits for purposes of her attorney seeking an attorney’s fee. We remand to the administrative law judge to determine the appropriate fees.
For prevailing on this appeal before the Full Commission, 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.
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ELDON F. COFFMAN, Chairman
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PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.