CLAIM NO. E511428
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 11, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appears pro se.
Respondents represented by the HONORABLE GUY WADE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The claimant suffered an admittedly compensable injury to his left knee on July 31, 1995. The respondents paid certain medical and temporary disability benefits to the claimant as a result of that injury. However, the respondents refused to pay temporary disability benefits for the period between August 22, 1995 and September 20, 1995. The claimant filed a claim for benefits during that period and requested the Commission to assess a penalty on the respondents for late payment of disability benefits. The administrative law judge, in a decision handed down on July 18, 1996, found that the respondents were liable for temporary disability benefits during the period in question but did not assess a penalty. The claimant has appealed the administrative law judge’s decision regarding the penalty assessment.
[7] An installment benefit payment becomes due on the 15th day after the employer has notice of the injury or death. In this case, the claimant testified that he notified the respondents by telephone on the date of the injury. While there does not appear to be any documentary evidence to support that statement, we note that the claimant was seen by the doctor selected by the employer on August 7, 1995. The statute provides that if an installment has not been paid within 15 days after it becomes due, a penalty of 18% shall be paid in addition to the installment amount. If it is assumed that the respondents were notified on August 7, 1995, then the due date would have been August 22, 1995. The penalty deadline would have been 15 days after that date or September 6, 1995. The record contains a copy of a check from Aetna Insurance Company, payable to the claimant for disability from August 1, 1995 through August 21, 1995, in the amount of $433.56. The date of that check is September 14, 1995. [8] The respondents began making regular installment benefit payments to the claimant in November 1995. They continued these payments up through the date the claimant concluded his healing period. The respondents have conceded that the claimant was within his healing period from September 21, 1995 through October 31, 1995. The record contains a copy of the check from the insurance carrier to the claimant for that period of disability in the amount of $849.29. The date of the payment for that check is December 15, 1995. Clearly, this payment and the payment for August 7 through August 21 were beyond the penalty deadline for all the benefits due during the period of August 1 through October 31, 1995. The respondents did not offer any reason, either at the hearing or in their brief, indicating why these payments were not made in a more timely manner. [9] If an installment payment is not paid in the time required by the statute, the statute requires imposition of the penalty unless the employer can show either that the case has been controverted or that they had received an extension from the Commission pursuant to A.C.A. § 11-9-803. The respondents’ failure to make a timely payment can also be excused after a showing by the employer that the payment was not made because of conditions over which the employer had no control. The administrative law judge did not impose the penalty in this case. She stated that the Commission had previously held that an employer was not required to pay benefits where they reasonably relied upon medical reports or where the case was controverted. However, the respondents in this case had not controverted the claimant’s claim. Also, the judge did not specify any particular medical report that contained any findings that the respondents could have relied upon in refusing to pay the claimant’s benefits. In fact, the rationale asserted by the administrative law judge was rejected by the Full Commission in Vaulner v. Burlington Industries, Full Commission opinion, May 10, 1993 (E108422). In that case, the Commission imposed a 18% penalty on the respondents for failing to pay an installment within the time limit prescribed by A.C.A. § 11-9-802. The respondents argued that the penalty should not be imposed because they had not been able to determine that the disability was related to the injury because of the unusual nature of the medical treatment the claimant was receiving. Specifically, the claimant in the case had suffered a back injury but later suffered certain complications including gastritis, meningitis, and other problems not related to his injury. However, the Commission held that the 18% penalty should be imposed because there was no evidence in the record indicating that the respondents had controverted the claim or received an extension for making the first payment of the claim from the Commission, nor did they show that any conditions had arisen beyond their control to prevent them from either making the payment or applying for an extension. [10] In our opinion, the 18% penalty set out in A.C.A. §11-9-802 for failure to pay an installment payment without an award should be imposed on the respondents. Quite simply, the respondents have failed to state any valid reason for not having paid the claimant disability benefits in a more timely manner. Based upon the plain language of the statute, and the Commission’s decision in the Vaulner case, we believe that imposition of the penalty is appropriate for the periods between August 1, 1995 through August 20, 1995, and September 22, 1995 through October 31, 1995. [11] We also find that the penalty should be imposed on the respondents for their failure to pay the benefits during the period of August 21, 1995 through September 21, 1995. In making this finding, we are aware that a controversion of benefits is sufficient to avoid the assessment of the penalty. However, our review of the record does not reflect that the respondents ever controverted the claimant’s entitlement to benefits during this period. They simply refused to pay them. As indicated, the record does not contain any evidence indicating that the claimant was not within his healing period during this time, and the respondents have not offered any valid reason why they did not pay benefits at this time. [12] Based upon our review of the entire record and for the reasons discussed herein, we specifically find that the claimant is entitled to temporary total disability benefits for the period of August 21 through September 21, 1995, and the administrative law judge’s decision is hereby affirmed in that regard. We further find that the respondents have failed to make timely installment benefit payments for the claimant’s temporary total disability benefits due between August 1 and October 31, 1995. We therefore assess a penalty of 18% for those benefits and order the respondents to pay said amount to the claimant. The administrative law judge’s decision not to assess this penalty is hereby reversed. [13] 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 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). [14] IT IS SO ORDERED.(a) The first installment of compensation shall become due on the fifteenth day after the employer has notice of the injury or death, as provided in § 11-9-701, on which date all compensation then accrued shall be paid. Thereafter, compensation shall be paid every two (2) weeks except where the Workers’ Compensation Commission directs that installment payments be made at other periods.
(b) If any installment of compensation payable without an award is not paid within fifteen (15) days after it comes due, as provided in subsection (1) of this section, there shall be added to the unpaid installment an amount equal to eighteen percent (18%) thereof, which shall be paid at the same time as, but in addition to, the installment unless notice of controversion is filed or an extension is granted the employer under § 11-9-803, or unless such nonpayment is excused by the commission after a showing by the employer that, owing to conditions over which he had no control, the installment could not be paid within the period prescribed.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[15] Commissioner Wilson dissents.[16] DISSENTING OPINION
[17] I respectfully dissent from the majority’s opinion finding that respondent owes an eighteen percent (18%) penalty on the temporary total disability benefits awarded for April 22, 1995, through September 20, 1995. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof. Respondent clearly controverted claimant’s entitlement to temporary total disability benefits between August 22, 1995 and September 20, 1995. This controversion is acknowledged in the Administrative Law Judge’s Opinion which sets forth the contentions. At the hearing held on June 6, 1996, respondent contended that all appropriate benefits to which claimant was entitled had previously been paid. If claimant had been represented by an attorney at the hearing the Administrative Law Judge would have awarded an attorney’s fee for the temporary total disability benefits awarded between August 22, 1995, and September 20, 1995. An attorney’s fee cannot be awarded unless respondent controverted claimant’s entitlement to such benefits.