WHITE v. REMINGTON ARMS COMPANY, 2001 AWCC 240

CLAIM NO. E907915 and E907916

LINDA K. WHITE, EMPLOYEE, CLAIMANT v. REMINGTON ARMS COMPANY, EMPLOYER, RESPONDENT, INSURANCE COMPANY, STATE OF PENNSYLVANIA, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED NOVEMBER 5, 2001

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE DALE GRADY, Attorney at Law, Bryant, Arkansas.

Respondents represented by the HONORABLE FRANK NEWELL, Attorney at Law, Little Rock, Arkansas.

ORDER
The claimant in the above-styled matter has petitioned the Full Commission for reconsideration, and for sanctions, contempt, additional attorney’s fees, and a penalty. After considering the petitions filed by the claimant and the respondents’ responses thereto, the Full Commission denies the claimant’s petition for reconsideration. We remand to the administrative law judge on the sole issue of whether or not the 0.7 weeks of temporary total disability compensation withheld by the respondents is enough to pay the claimant’s one-half attorney’s fee on the medical treatment controverted by the respondents and awarded by the Commission. The Full Commission awards the claimant’s attorney a fee on the interest amount initially unpaid by the respondents. Finally, the Full Commission awards a 20% late payment penalty pursuant to Ark. Code Ann. § 11-9-802(c) on the $443.55 in interest.

I. HISTORY
An administrative law judge filed an Opinion on November 13, 2000. The administrative law judge found that the claimant failed to prove that she sustained a compensable injury on February 27, 1999. The administrative law judge found that the claimant proved that she sustained a compensable back injury on June 10, 1999. The administrative law judge awarded the claimant reasonable and necessary medical benefits from June 10, 1999, the date of the compensable injury, through September 28, 1999, the date of the first Intra-discal Electrothermal (IDET) procedure. The administrative law judge found that the claimant’s attorney was entitled to a fee for controversion of the medical benefits awarded.

In addition, the administrative law judge found that the claimant was entitled to temporary total disability compensation from June 11, 1999 through September 28, 1999, during which time the claimant “remained in a healing period and totally incapacitated from earning wages, as a result of the compensable sprain-strain injury.” The administrative law judge found that the claimant’s attorney was entitled to a fee for controversion on the amount of temporary total disability compensation awarded.

Both parties appealed to the Full Commission, which filed an opinion on August 2, 2001. The Full Commission affirmed in its entirety the opinion of the administrative law judge.

The claimant filed a Petition For Re-Consideration on August 10, 2001, stating, “The Claimant should have prevailed on all issues.” The respondents filed a Response to the claimant’s petition and stated that “they oppose such reconsideration.” On August 13, 2001, the claimant filed with the Commission a Notice of Appeal to the Arkansas Court of Appeals.

The respondents’ attorney wrote to the claimant’s attorney on September 5, 2001:

Respondents have decided not to appeal the Commission’s award of temporary total disability benefits from June 11 through September 28, 1999. My client will therefore be sending you checks for benefits payable to Ms. White and for attorney’s fees payable to you. Ms. White will receive a check for $4,593.15, representing the amount payable for 15 weeks of temporary total disability benefits minus half of your fee of $1,193.71.
Pursuant to the Commission’s award, Ms. White is actually entitled to payment of about 15.7 weeks of temporary total disability benefits. My client is paying her only 15 weeks in order to keep some of her TTD benefits in reserve, so to speak, in order to have a fund out of which to pay her half of whatever is owed in attorney’s fees on the medical benefits awarded by the Commission for care she received between June 10 and September 28, 1999. My client has not yet received bills from Ms. White’s medical service providers for this care, so an accurate computation of attorney’s fees owed cannot be made yet.
Please send me bills for all care received by Ms. White from June 10, 1999 through September 28, 1999. As soon as I receive the bills, I will forward them to my client to be audited and paid. I need bills with CPT codes. If you do not have such bills, please write Ms. White’s medical service providers or have her write them to get bills containing these codes. The codes are necessary for the auditing procedure.

On September 10, 2001, the claimant filed a Motion for Sanctions,Motion to Show Cause Why Respondents Should Not Be Held In Contempt, andSecond Petition to Reconsider. The claimant attached copies of the checks written by the respondents in the amount of $4,593.15 for the claimant and $1,193.71 for the claimant’s attorney. The claimant stated that her temporary total disability rate “is $346.00/wk and the period of June 11, 1999, through September 28, 1999, represents 15 5/7 weeks, which would produce an amount of $5,437.14.” The claimant stated that the respondents had intentionally disobeyed the Commission’s award and order. The claimant stated that the respondents were attempting to avoid the 20% late payment penalty of Ark. Code Ann. § 11-9-802(c). The claimant prayed “for the Full Commission to Re-Consider this entire case, and to impose penalties, sanctions, lates (sic) payment penalties, double max. atty fees, interest, and contempt fines of $10,000.00, and give all appropriate relief in this case.”

In their response, filed September 25, 2001, the respondents admitted delivering checks to the claimant and her attorney, and the respondents admitted that they have a duty to comply with the orders of the Commission. The respondents denied that they were attempting to avoid the late-payment penalty provisions of Ark. Code Ann. § 11-9-802. The respondents stated that “through oversight, the interest was not paid on benefits awarded by the Commission on September 6, 2001, when the original checks to claimant and her attorney were sent. On September 21, 2001, an interest check in the amount of $443.55 was sent to claimant. If counsel for claimant takes the position that other benefits are due and owing at this time, he is invited to correspond with counsel for respondents in that regard.”

The respondents prayed that the Commission deny the claimant’s motions. On September 26, 2001, the claimant submitted a supplement to his motion for sanctions and petition for reconsideration. The claimant attached a large number of medical bills.

II. ADJUDICATION A. Petition for Reconsideration
The claimant petitions the Full Commission to reconsider our opinion filed August 2, 2001. The claimant has failed to raise any arguments which merit reconsideration of our opinion; therefore, the Commission denies the claimant’s petition.

B. Attorney’s Fees on Medical Benefits
The claimant’s motion argues that, when the respondents paid the claimant 15 weeks of temporary total disability compensation as awarded by the Commission and held 0.7 weeks of benefits in reserve to pay the claimant’s one-half attorney’s fees, the respondents did not withhold enough money from the claimant’s check to pay the claimant’s one-half attorney’s fee on the medical treatment which the Commission also awarded. The claimant asserts that the respondents intentionally failed to withhold the proper amount, and that the respondents are intentionally trying to avoid paying the claimant’s attorney the fees to which he is entitled for the claimant’s controverted medical treatment. The respondents do not address the claimant’s argument that their conduct in this regard has been intentional.

However, the correspondence before us indicates that the claimant’s attorney has not submitted to the respondents a list of the 1999 medical expenses on which the claimant asserts that the respondents owe both a payment and an attorney’s fee. Under these circumstances, there is a question of fact as to whether or not the 0.7 weeks of temporary total disability reserved by the respondents will be enough to pay the claimant’s one-half attorney’s fee on the medical treatment awarded by the Commission. We note that the claimant’s attorney has apparently supplemented his petitions with a significant number of medical bills rather than turning these bills over to the respondent for payment. In addition, the claimant’s attorney’s petitions fail to contain any stipulation or admission by the respondents as to whether or not the attorney’s fee owed on these bills will exceed the 0.7 weeks of temporary total disability reserved by the respondents to pay the claimant’s attorney’s fees.

Consequently, the Full Commission remands the attorney’s fee issue to the administrative law judge. We direct the administrative law judge to conduct proceedings sufficient to determine whether or not the 0.7 weeks of temporary total disability withheld by the respondents is enough to pay the claimant’s one-half attorney’s fee on the medical treatment awarded by the Commission.

C. Interest
The respondents sent checks to the claimant’s attorney for benefits payable to the claimant and for the claimant’s attorney’s fees. However, the checks the respondents sent did not include any portion of $443.55 in interest which had accrued on the award of temporary total disability compensation. After the claimant’s attorney pointed out this error to the respondents, the respondents sent the claimant’s attorney a check representing interest on the award. There is apparently no dispute that the respondents did not send the claimant’s attorney a supplemental check for an attorney’s fee on the accrued interest on the late payment. The Full Commission finds that the claimant’s attorney should have received an attorney’s fee on the $443.55 in interest. We therefore award this fee to the claimant’s attorney, and we find that counsel is entitled to a second attorney’s fee for having to bring the issue of unpaid interest to the respondents’ attention in order to secure payment. The Full Commission also awards a 20% late payment penalty on the interest, pursuant to Ark. Code Ann. § 11-9-802(c).

III. CONCLUSION
After considering the petitions filed by the claimant and the respondents’ responses thereto, and for the reasons discussed herein, the Full Commission denies the claimant’s petition for reconsideration. We remand to the administrative law judge on the sole issue of whether or not the 0.7 weeks of temporary total disability compensation withheld by the respondents is enough to pay the claimant’s one-half attorney’s fee on the medical treatment controverted by the respondents and awarded by the Commission. The Full Commission awards the claimant’s attorney’s a fee on the interest amount initially unpaid by the respondents. Finally, the Full Commission awards a 20% late payment penalty pursuant to Ark. Code Ann. § 11-9-802(c) on the $443.55 in interest.

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman

CONCURRING AND DISSENTING OPINION COMMISSIONER WILSON concurs in part and dissents in part.

I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the majority’s denial of the claimant’s Petition for Reconsideration and in the remand to the Administrative Law Judge to determine whether or not the 0.7 weeks of temporary total disability compensation withheld by the respondents was enough to pay the claimant’s one-half attorney’s fee on the medical treatment controverted by the respondents and awarded by the Commission. However, I must respectfully dissent from the majority opinion awarding a twenty percent (20%) late payment penalty on the $443.55 in interest.

_______________________________ MIKE WILSON, Commissioner

Commission Turner concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner

I agree that the Commission should remand to the Administrative Law Judge the question of attorney’s fees based on the medical treatment previously awarded by the Commission. I likewise concur with the award of attorney’s fees and a 20% late penalty based on accrued interest. However, I must respectfully dissent from the denial of claimant’s motion to reconsider our August 2, 2001 decision. In my opinion, claimant has proven by a preponderance of the evidence that she sustained a compensable injury in February 1999; that the IDET procedures performed by Dr. Robert G. Valentine were reasonable and necessary; that claimant is entitled to benefits for temporary total disability subsequent to September 28, 1999; and that claimant is entitled to additional and continuing medical treatment for her compensable back injury.

_______________________________ SHELBY W. TURNER, Commissioner