Opinion
CLAIM NO. E606013
OPINION FILED NOVEMBER 12, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Both parties appeal a February 24, 1997 opinion of the Administrative Law Judge awarding a controverted attorney's fee.
We would initially point out that there is no issue on appeal concerning claimant's entitlement to temporary total disability benefits. The Administrative Law Judge found that claimant was not entitled to these benefits. Claimant's attorney states in his brief that the case was appealed "because there is one issue, and one issue only. That issue is the amount of an attorney fee due the claimant in regard to this case." Furthermore, respondent's brief states that "[a]s indicated by Ms. Shuttler in her appeal brief, the only issue in dispute is whether her attorney is entitled to an attorney's fee on the medical bills paid by the Respondents prior to the hearing and if so, is he entitled to an attorney's fee on the $7,000.00 paid by the Respondents or the original bill submitted by the Morter Clinic of $12,202.00." Thus, the parties have expressly limited the scope of the appeal before the Commission.
The first question that must be decided is whether respondent controverted claimant's entitlement to treatment provided by Dr. Dan J. Roberts, a chiropractor. This is a question of fact to be determined from the circumstances of the particular case. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976).
On May 9, 1996 claimant filed her claim for benefits and requested a hearing. The carrier's response to the Commission's 15-day letter merely states that the claim was compensable and that its information indicated no lost time. Prehearing questionnaires were filed by the parties and respondent's questionnaire states its contention "that the claimant is not entitled to temporary total disability benefits, medical benefits or controverted attorney's fees." Respondent argues that at the time of this filing, it did not have information sufficient to make a determination concerning claimant's entitlement to medical benefits. Respondent could have easily so stated in its prehearing questionnaire but did not. All respondent had to do was indicate that it did not have sufficient information upon which to state a contention on this issue.
Respondent also contends that it did not have the name of claimant's medical care provider until after claimant responded to interrogatories in September 1996. However, claimant's prehearing filings clearly inform respondent that claimant had been treated by Dr. Roberts.
Respondent insists that it did not receive sufficient information upon which to base a decision until after claimant answered interrogatories in September 1996 and claimant's deposition was taken October 31, 1996. Respondent alleges that in a letter dated November 6, 1996, it informed claimant's attorney of efforts to work out payment with the medical provider. Respondent was trying to enter into a compromise settlement with the chiropractor. In fact, of the $12,202.00 billed by the chiropractor, respondent was able to settle for $7,000.00. Respondent allegedly paid this amount on December 5, 1996. A hearing was held in this matter on December 10, 1996, at which time respondent's attorney informed the Administrative Law Judge and claimant's attorney that Dr. Roberts had been paid.
This is clearly not a situation contemplated by Ark. Code Ann. § 11-9-715(a)(2)(B)(iii), which provides that "the Commission shall not find a claim has been controverted if the claimant or his representative has withheld from the respondent during the period of time allotted for the respondent to determine its position any medical information in his possession which substantiates the claim." This section applies whenever a claimant withholds relevant information during the period of time allotted for the respondent to determine its position concerning an issue. In the present case, respondent had already stated its position in its prehearing questionnaire. Further, there is no evidence whatsoever that respondent asked for an extension of any allotted time to determine its position. Respondent did not acknowledge liability for any portion of medical expenses until five months after the prehearing order was filed stating that claimant's entitlement for medical benefits would be an issue at the hearing.
Based on the above evidence, we find that respondent controverted claimant's entitlement to medical benefits and owe a controverted attorney's fee. Accordingly, we affirmed the opinion of the Administrative Law Judge in this regard.
We likewise affirm the Administrative Law Judge's award of the maximum allowable attorney's fee based on the $7,000.00 paid by respondent to Dr. Roberts. This decision should not be construed to mean that in every case involving a settlement of a provider's bill, claimant's attorney will receive a controverted attorney's fee based only on the amount of the settlement. A decision in this regard must be made on a case by case basis.
Accordingly, we affirm the opinion of the Administrative Law Judge finding that respondent controverted claimant's entitlement to medical benefits. Additionally, we affirm the opinion of the Administrative Law Judge finding that claimant's attorney is entitled to a controverted attorney's fee based on the $7,000.00 paid to Dr. Roberts. For prevailing in part on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
CONCURRING OPINION
I concur in the findings and reasoning of the principal opinion that the claimant's attorney is entitled to an attorney's fee on the $7000 in medical expenses paid to Dr. Roberts. I write separately only to express my views on the respondents' assertion that the claimant has somehow "withheld" medical information from the respondents within the meaning of Ark. Code Ann. § 11-9-715(a)(2)(B)(iii) (Repl. 1996).
My review of the record indicates that the respondents failed to present any evidence that the claimant or her attorney everwithheld any medical information from the respondents or their attorney. The respondents' brief on appeal suggests that the respondents' defense to controversion in this case is that the respondents didn't even learn who the claimant's treating chiropractor (Dr. Roberts) was until September of 1996 when the respondents received answers to interrogatories from the claimant. The respondents also assert that they did not learn the nature of the treatment that the claimant received from Dr. Roberts until they took the claimant's deposition in October of 1996.
In assessing the respondents' argument, I note that the claimant's admittedly compensable injury occurred on March 23, 1996, and the claimant continued to work for the respondents through the end of the tax season on April 15, 1996. The claimant first presented to the Morten Health Clinic (i.e., Dr. Roberts) on April 17, 1996. The claimant testified that the respondent employer had pre-approved chiropractor treatment and that she called Candice Shade, her supervisor, and Amanda, the district manager for the respondent employer, to let them know that she had gone to Dr. Roberts. The claimant subsequently hired an attorney on May 1, 1996, and the claimant's pre-hearing filing also identifies Dr. Roberts as the claimant's physician.
In short, there is simply no evidence in the record from which to conclude that the claimant or her attorney ever withheld any relevant medical information from the respondents or that through action or inaction, the claimant or her attorney ever impeded the ability of the respondents (or the respondents' attorneys) to investigate the claimant's request for medical benefits. Compare, Walter v. Southwestern Bell Telephone Co., 17 Ark. App. 43, 702 S.W.2d 822 (1986); Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976); Horseshoe Bend Builders v. Sosa, 259 Ark. 267, 532 S.W.2d 182 (1976). To the contrary, the record indicates that the respondents' attorney controverted the claimant's entitlement to medical benefits in June of 1996, well after the claimant started treatment with Dr. Roberts and after the respondents were aware of (or should have been aware of) the claimant's treatment with Dr. Roberts.
Therefore, for the reasons discussed herein, I find no merit in the respondents' assertion that the claimant somehow "withheld" any medical information during the period allotted for the respondents to determine its position. In addition, I note that the respondents have failed to show what investigation, if any, that the respondents performed prior to controverting the claimant's entitlement to medical benefits in June of 1996. Accordingly, I concur in the determination that the claimant's attorney is entitled to a fee in controversion on the $7000 medical fee accepted by Dr. Roberts in this case.
ELDON COFFMAN, Chairman
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant's attorney is entitled to an attorney's fee on the amount of medical expenses paid by respondent.
The parties do not dispute the fact that respondent was not provided with the names of claimant's medical care providers nor with bills for claimant's medical treatment until after respondent filed its response to the prehearing questionnaire, after the prehearing telephone conference took place, and after responding to interrogatories. Ark. Code Ann. § 11-9-715(a)(2)(B)(iii) states:
However, the Commission shall not find a claim has been controverted if the claimant or his representative has withheld from the respondent during the period of time allotted for the respondent to determine its position any medical information in its possession which substantiates the claim.
At the time respondent responded to the prehearing information filing respondent was not privy to the pertinent medical information regarding the names of claimant's medical care providers or the amount of medical benefits incurred by claimant. Therefore, although respondent stated in its prehearing questionnaire that medical benefits would be an issue, the statutory provision set forth above clearly provides that the claim for medical benefits cannot be held to have been controverted by respondent since respondent did not have any of the relevant medical information which claimant possessed. Once respondent became aware of claimant's medical care providers, it appears that respondent made a good faith effort to pay the medical bills incurred. While respondent did not pay the medical bills until the compromised settlement with the medical care provider was reached on December 5, 1996, there is no evidence that respondent actually controverted claimant's entitlement to have this bill paid by respondent. In fact, claimant's attorney does not dispute that he was advised by the respondent carrier of their intention to pay the medical bills once the relevant information was received from claimant. There is adequate case law to indicate that controversion does not arise when the evidence is clear that the carrier has accepted the injury and is merely attempting to determine the amount of benefits owed.Walter v. Southwestern Bell Telephone Co., 17 Ark. App. 43, 702 S.W.2d 822 (1986); Revier Copper and Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). Accordingly, I cannot find that respondent controverted claimant's entitlement to medical bills once respondent was provided with the names of the medical care providers and the bills incurred. Respondent is allowed an opportunity to determine the amount owed, and to audit the bills. Therefore, I cannot find that respondent has controverted the medical bill in question. Accordingly, I would reverse the decision of the Administrative Law Judge finding that respondent controverted claimant's entitlement to medical benefits and awarding a fee thereon. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner