Opinion
CLAIM NO. E602230
OPINION FILED APRIL 8, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by WILLIAM J. STANLEY, Attorney at Law, West Memphis, Arkansas.
Respondents represented by NATHAN CULP, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent appeals an order of an Administrative Law Judge awarding a controverted attorney's fee on claimant's petition for a change of physician. We affirm.
Ark. Code Ann. § 11-9-715 (c)(1) (Repl. 1996) provides for an attorney's fee to claimant's attorney in the amount of $200.00 in connection with a change of physician, which has been controverted by the employer or carrier and awarded by the Commission. The determination of whether a claim is controverted is a fact question to be resolved from the circumstances of each particular case. Walter v. Southwestern Bell Telephone Co., 17 Ark. App. 43, 702 S.W.2d 822 (1986). We find that the circumstances surrounding this case are sufficient to support an award of attorney's fees to claimant's attorney for controversion.
Claimant sustained an admittedly compensable injury on February 14, 1996. On March 22, 1996, claimant filed Form AR-C, which requested a change of physician. In correspondence to the Commission dated April 1, 1996, Otis Palmer, a claims manager for respondents, acknowledged the compensability of the claim and added that "[c]oncerning the change of physician request, we do not object to a change to the desired physician provided we know the name of the desired physician and provided the Workers' Compensation Commission approves the change." However, by letter to the Commission dated May 6, 1996, counsel for claimant requested an immediate hearing before an Administrative Law Judge on the issue of change of physician. There is some indication in the file that prior to this correspondence, medical bills from Dr. Robinette were presented to respondent for payment and respondent failed to do so. Thereafter, respondent-carrier referred the matter to Nathan C. Culp, an attorney with the Public Employee Claims Division of the Arkansas Insurance Department.
In correspondence dated May 31, 1996, Mr. Culp stated the following:
. . . Respondents are not denying the claimant's petition for a change of physician if the selected physician is acceptable and it is treated as claimant's one time petition for a change of physician per Arkansas Code Ann. § 11-9-514. Please advise the name of the physician to whom the claimant wants to change. (Emphasis added).
In spite of this correspondence, claimant's prehearing questionnaire was filed on June 10, 1996 and a prehearing conference was scheduled for June 14, 1996. The prehearing conference was held resulting in an order dated June 17, 1996, granting claimant's change of physician to Dr. Robinette and awarding claimant's attorney an attorney's fee in the amount of $200.00 for controversion of claimant's petition for a change of physician.
Based on the above circumstances, we find that respondents sufficiently controverted claimant's petition for a change of physician to warrant an award of attorney's fees to claimant's attorney. Respondents knew, or should have known, that claimant wanted an official change to Dr. Robinette, thereby obviating the need to file prehearing questionnaires and conduct a prehearing conference.
Accordingly, we affirm the order of the Administrative Law Judge finding that claimant's attorney is entitled to an attorney's fee in the amount of $200.00 to be paid one-half by claimant and one-half by respondents.
IT IS SO ORDERED.
Commissioner Wilson dissents.