Opinion
CLAIM NO. E215931
OPINION FILED MAY 12, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOHN L. BURNETT, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on June 21, 1994. In that opinion and order, the administrative law judge found that the respondents did not controvert the claimant's entitlement to compensation subsequent to the time the claim was accepted as compensable following the examination of Dr. Michael Moore. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to a controverted attorney's fee.
The claimant began working for the respondent employer as a meat wrapper in 1975. In January of 1992, she began to experience problems with her arms. She saw her gynecologist, Moses Smith, on March 7, 1992, for her annual checkup, and she mentioned these arm problems to him. Due to these complaints and due to a finding of high blood pressure, Dr. Moses recommended that she see Dr. Bruce Sanderson, a general practitioner. The claimant did see Dr. Sanderson on that date, and Dr. Sanderson sent her to Dr. Beverly Beadle for electrodiagnostic studies of her arms. These studies were conducted on March 26, 1992, and this was the only involvement of Dr. Beadle with the claimant's care.
Although no hearing was held in this matter, the claimant testified at a deposition that she was not sure what caused her arm problems initially, and she testified that she thought that it might be arthritis. In addition, the problems began when her employment duties had changed, and her condition subsequently improved when she was returned to her prior duties. She testified that this improvement was why she "didn't pursue it so much." It is unclear from the record when she reported to her employer that she was suffering from a condition which she considered to be work-related. She testified that she initially submitted her medical bills to her group health insurance carrier, but the group health insurance carrier denied them as being work related. According to the claimant's testimony, it was at this time that she filed an accident report with the assistant manager. She has subsequently been transferred to the Benton store, and she has been placed on the job which initially caused the onset of her problems. Although she testified that her problems have become worse since she has returned to these duties, she testified that she had not discussed these problems with her supervisor or with her store manager. In fact, her testimony indicates that her supervisor was not even aware of this claim until the day before the deposition was taken.
The claimant filed a claim for compensation with the Commission on October 13, 1992. This claim did not list an accident date, and it did not state when the claimant's employer was notified of the injury. This claim was subsequently dismissed due to the claimant's failure to request a hearing within six months. She filed a second claim April 22, 1993. As a result of this claim, the respondents propounded interrogatories and requests for the production of documents on the claimant, and the questions included ones asking the dates of all medical treatment since the injury, a description of her complaints at the time of this treatment, and the diagnosis and prognosis. In addition, the respondents requested copies of all reports made by her physicians since the accident. Although the claimant's deposition testimony indicates that she saw Dr. Sanderson at least six times for her arm problems, she did not respond to the respondents' questions regarding the dates of her treatment, her complaints, or her diagnosis and prognosis. In addition, she indicates that all doctors' reports are attached to the interrogatories, but no reports from Dr. Sanderson were attached. The only documents attached to the interrogatories pertained to Dr. Beadle's testing, and nothing in these documents suggested that the condition was work related. In fact, one statement of charges indicates that the claimant did not relate the problems to her employment.
Based on the minimal information provided by the claimant regarding the condition, the respondents initially denied the compensability of the claim. However, after taking the claimant's deposition, the respondents agreed to a medical examination by Dr. Michael Moore, an orthopedist, and based on his report, they accepted the claim.
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) (Cumm. Supp. 1993); 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 623 (1990). Consequently, whether a claim is controverted must be determined from the circumstances of each particular case.Buckner, supra; Masonite Corporation v. Mitchell, 16 Ark. App. 209, 699 S.W.2d 409 (1985); Climer v. 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 Colson Company, 271 Ark. 740, 610 S.W.2d 281 (1981). 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. However, the claim may not be controverted where the claimant hinders the respondent's investigation of the claim, regardless of whether the claimant's actions, or inaction is intentional or not. Climer v. Drake's Backhoe, 7 Ark. App. 148, 644 S.W.2d 637 (1983); Walter v. Southwestern Bell Telephone Co., 17 Ark. App. 43, 702 S.W.2d 822 (1986).
In the present claim, we find that the preponderance of the evidence submitted indicates that the claimant hindered the respondents' investigation of the claim and that her acts or inaction was the cause of her need to obtain the services of an attorney. As discussed, the claimant did not inform her employer that she was experiencing problems which she considered to be work related for a significant time after the onset of the problems and her receipt of treatment. In fact, she admitted that she "didn't pursue it so much." Even when she filed her first claim, she failed to provide information pertinent to an appropriate investigation, such as an approximate injury date and an approximate date the employer was notified. Moreover, the evidence suggests that the claimant failed to submit to the respondents any reports from the physician treating her for this condition. Instead, the evidence suggests that the only report submitted to the respondent was the report of Dr. Beadle's diagnostic tests. However, Dr. Beadle did nothing more than perform diagnostic testing, and her report does nothing more than to confirm the existence of carpal tunnel syndrome. Furthermore, a record of payments made by the respondents which is attached to the claimant's amended responses to the prehearing questionnaire indicates that no bills had been submitted to the respondents for Dr. Sanderson's services as of January 7, 1994. The claimant's failure to sufficiently cooperate with the respondents' efforts to investigate the claim is also demonstrated by her failure to completely answer the interrogatories pertaining to medical treatment discussed above.
Consequently, we find that the respondents' efforts to investigate the claim was hindered by the claimant and that their initial denial of the claim was due to the inadequacy of the information provided by the claimant. However, the evidence shows that the respondents immediately accepted the claim once they were able to obtain adequate information to support the compensability of the claim. Therefore, we find that it was the acts or inaction of the claimant which made it necessary for her to obtain the services of an attorney, and we find that the respondents did not controvert the claim within the meaning of Ark. Code Ann. § 11-9-715.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to show by a preponderance of the evidence that she is entitled to a statutory attorney's fee. Consequently, we find that the administrative law judge's decision must be, and hereby is, affirmed.
IT IS SO ORDERED.
Commissioner Humphrey did not participate.