{"id":"alj-G700777-2023-01-09","awcc_number":"G700777","decision_date":"2023-01-09","opinion_type":"alj","claimant_name":"Louis Jacobs","employer_name":"Gerdau Macsteel, Inc","title":"JACOBS VS. GERDAU MACSTEEL, INC. AWCC# G700777 JANUARY 9, 2023","outcome":"denied","outcome_keywords":["denied:2"],"injury_keywords":[],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//JACOBS_LOUIS_G700777_20230109.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACOBS_LOUIS_G700777_20230109.pdf","text_length":19939,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G700777 \n \nLOUIS J. JACOBS, Employee                                                                           CLAIMANT \n \nGERDAU MACSTEEL, INC., Employer                                                     RESPONDENT \n \nAMERICAN ZURICH INSURANCE CO., Carrier                                       RESPONDENT \n \n \n \n OPINION FILED JANUARY 9, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by LEE J. MULDROW, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On November 21, 2022, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on  October 5, 2022 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The prior Opinion of February 7, 2022 is final. \n 3.   The claimant  was earning sufficient wages to entitle him to compensation at \nthe weekly rates of $621.00 for total disability benefits and $496.00 for permanent partial \ndisability benefits. \n\nJacobs – G700777 \n \n 4.   Claimant reached maximum medical improvement on February 1, 2021. \n 5.      Respondent  has  accepted  liability  for  permanent  partial  disability  benefits \nbased on a 30% rating to the body as a whole.  Respondent has paid an attorney fee on \nthese benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Whether respondent is liable for payment for Linda Lay’s services at a rate \ngreater  than  the  maximum  allowable  rate  permitted  in  the  fee  schedule.    Alternatively, \nwhether respondent is obligated to find someone to treat claimant’s post-traumatic stress \ndisorder at the fee schedule rate. \n2.    Whether respondent should be held in contempt for failing to comply with the  \nOpinion of February 7, 2022. \n3.    The date respondent is to begin paying claimant’s attorney the claimant’s  \nportion of the attorney fee. \n At  the  time  of  the  hearing  the  parties  agreed  to  stipulate  that respondent  would \nbegin paying claimant’s attorney the claimant’s portion of the attorney fee on January 23, \n2023.   \n The claimant’s contentions are set forth in his pre-hearing questionnaire attached \nto Commission’s Exhibit #1 as Exhibit #1 and #2. \n The  respondent’s    contentions  are  set  forth  in  its  pre-hearing  questionnaire \nattached to Commission’s Exhibit #1 as Exhibit #3.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \n\nJacobs – G700777 \n \n3 \n \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non October 5, 2022 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   The parties’ stipulation that respondent will begin paying claimant’s attorney \nthe claimant’s portion of the attorney fee on January 23, 2023, is also hereby accepted \nas fact.   \n 3.   Respondent is not in contempt for failing to comply with the Opinion of February \n7, 2022.   \n 4.      Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that \nrespondent is liable for paying for Linda Lay’s services at a rate greater than the maximum \nallowable rate permitted in the Commission’s fee schedule. \n 5.   Respondent has an affirmative duty to provide claimant with medical services \nfor his post-traumatic stress disorder. \n \n FACTUAL BACKGROUND \n Claimant suffered a compensable injury to various parts of his body while working \nfor respondent on January 26, 2017.   As a result of that injury claimant has undergone \nnumerous  medical  treatments  and  surgeries.    Claimant  was  assigned  a  combined \nimpairment rating of 30% to the body as a whole for his compensable injuries which was \naccepted and paid by respondent.  Claimant underwent a functional capacities evaluation \n\nJacobs – G700777 \n \n4 \n \non April 28, 2021, which showed a consistent and reliable effort and determined that while \nclaimant had the ability to perform some work in the sedentary category of work, “He did \nnot  perform  work  at  a  level  that  would  allow  him  to  work  over  the  course  of  a  normal \nworkday in a competitive work environment.”    \n Claimant had previously requested a hearing on his entitlement to permanent total \ndisability benefits as well as a controverted attorney fee and lump sum payment of the \nattorney  fee.    Prior  to  the  hearing  the  parties  agreed  to  stipulate  that  claimant  is \npermanently totally disabled.  In an opinion filed February 7, 2022, this administrative law \njudge found that respondent had controverted claimant’s entitlement to permanent total \ndisability benefits and awarded claimant’s attorney a fee on all indemnity benefits in \nexcess of the 30% impairment rating.  Claimant’s attorney was also awarded payment of \nhis fee in a lump sum.  The February 8, 2022 opinion was not appealed and the parties \nhave stipulated that it is final. \n Following the claimant’s injury he has undergone counseling treatment from Linda \nLay for post-traumatic stress disorder.  At the time of the January 10, 2022 hearing the \nfollowing discussion took place. \n   MR. WALKER:  I think there is also a stipulation that the \n  respondents have indicated that they accept liability for payment \n  of treatment by Linda Lay for psychological services.  Is that \n  right, Mr. Muldrow? \n \n   MR. MULDROW:  Yes.  And that has been paid.   \n \n   MR. WALKER:  So we would like that included in the \n  stipulations so we don’t have to revisit that issue again, Judge. \n \n   THE COURT:   He is entitled to treatment from who, \n  Dr. Linda Lay? \n \n\nJacobs – G700777 \n \n5 \n \n   MR. MULDROW:  Dr. Linda Lay for PTSD.  Mr. Walker  \n  is absolutely right.  Linda Lay’s treatment was approved early \n  on, a couple years ago.  Inexcusably the insurance company \n  paid part of it and then stopped paying and did not get it paid \n  in time.  We finally have gotten that corrected, but the bottom \n  line is Linda Lay is entitled to payment for her time.  It is not \n  challenged by the insurance company or by Gerdau.  And it \n  it my understanding that she has been paid in full and I have \n  provided documentation to Mr. Walker to that effect. \n \n   THE COURT:  Okay. So a stipulation with regard to that \n  medical treatment and that claimant is permanently and totally \n  disabled leaving as the only issue the attorney fee issues. \n \n \n Since the time of the January 10, 2022 hearing, an issue has arisen as to whether \nrespondent is liable for payment of services provided by Linda Lay at a rate greater than \nthe maximum allowable rate permitted in the fee schedule. \n \nADJUDICATION \n \n Respondent  acknowledges  that  claimant  is  entitled  to  treatment  for  his  post-\ntraumatic  stress  disorder  resulting  from  his  compensable  injury.    Counseling  for  post-\ntraumatic stress disorder has been provided by Linda Lay.  Lay has apparently billed for \nher counseling services at the rate of $160.00 per hour, which exceeds the fee schedule \nrate.  At issue is whether respondent is liable for payment for Lay’s services at a rate that \nis greater than the maximum allowable rate in the fee schedule. \n After my review of the evidence and the applicable law, I find that respondent is \nnot liable for payment for Lay’s services at a rate in excess of the maximum allowable \nrate permitted by the fee schedule.   \n Initially,  claimant  contends  that  respondent  has  already  agreed  to  pay  Lay  for \nservices  at  a  rate  greater  than  that  permitted  under  Rule  30  and  that  respondent  is  in \n\nJacobs – G700777 \n \n6 \n \ncontempt for failing to comply with the prior opinion of February 7, 2022.  After claimant’s \ninjury, Lay provided counseling services to the claimant and apparently a portion of those \nservices were paid by the respondent.  At the prior hearing in this claim on January 10, \n2022, respondent acknowledged that Lay was entitled to payment for her services and \nAttorney Muldrow indicated that Lay had been paid in full.  This agreement that Lay was \nentitled  to  payment  for  services  rendered  was  Finding  of  Fact  &  Conclusion  of  Law \nnumber 3 in the prior opinion filed on February 7, 2022. \n3.   The parties’ stipulation that Linda Lay is entitled \n to  payment for services provided to claimant is also hereby \n accepted as fact. \n \n \nClaimant contends that the stipulation was to pay for Lay’s services at her billing \nrate as opposed to the fee schedule.  I do not agree.  While respondent agreed at the \nprior hearing that Lay was entitled to payment for her services, respondent did not indicate \nthat those services would be paid at a rate greater than the fee schedule.  Nor did the \nopinion of February 7 make a finding or order respondent to make payment at a rate in \nexcess of the fee schedule. Accordingly, I do not find that the respondent has previously \nstipulated  to  pay  Lay  at  a  rate  greater  than  that  permitted  under    Rule 30  or  that \nrespondent is in contempt for failing to comply with the opinion of February 7, 2022. \nClaimant also contends that respondent waived any claim that it might have to limit \npayment to Lay to payment under Rule 30 by paying for services at the billed rate and by \nagreeing to continue to do so at the hearing on January 10, 2022.  For reasons previously \ndiscussed, I do not find that respondent agreed to pay at a rate greater than that allowed \nunder Rule 30 at the prior hearing. \n\nJacobs – G700777 \n \n7 \n \nIn addition, I do not find that respondent waived its right to make payment under \nRule 30 based on payment for any prior services.  First, as correctly noted by respondent \nin its brief, Attorney Davis in a letter to Attorney Walker dated March 25, 2020 indicated \nthat respondent was willing to pay for additional services performed by Lay “provided that \nthe rate per session is based on the Arkansas WC Medical Fee Schedule.”    While \nrespondent  subsequently  agreed  that  Lay  was  entitled  to  payment  for  her  services, \nrespondent  did  not  agree  to  pay  for  those  services  at  a  rate  greater  than  that  allowed \nunder Rule 30. \nFinally,  with  respect  to  this  issue,  I  note  that  Rule  30  addresses  the  issue  of \npayment  in  excess  of  the  maximum  allowable  payment  by  authorizing  recovery  of \npayment  for  amounts  which  exceed  the  maximum  allowable  payment.    See  Rule  30, \nSection 1 K.  While recovery is not an issue here, the language in Rule 30 would indicate \nthat payment of the bill in excess of the maximum allowable rate does not constitute a \nwaiver. \nHaving  found  that  respondent  has  not  previously  stipulated  to  pay  at  a  rate  in \nexcess of the fee schedule or that respondent waived its right to make payment pursuant \nto Rule 30, a discussion of relevant portions of Rule 30 is necessary. \nThe Arkansas Workers’ Compensation Fee Schedule was authorized by A.C.A. \n§11-9-517 which states: \n  The Workers’ Compensation Commission is authorized \n to establish rules, including schedules of maximum allowable \n fees for specified medical services rendered with respect to \n compensable injuries, for the purpose of controlling the cost \n of medical and hospital services and supplies provided  \n pursuant to §§ 11-9-508 – 11-9-516.  (Emphasis added.) \n \n\nJacobs – G700777 \n \n8 \n \nIn accordance with A.C.A. §11-9-517, the Commission adopted Commission Rule \n099.30 [hereinafter Rule 30].  In the General Provisions, Rule 30 indicates that its scope \nincludes: \nA.   Scope. \n1.    This rule does all of the following: \n.... \n   (b)    Establishes schedules of maximum fees by a \nhealth facility or health care provider for such treatment \nor attendance, service, device, apparatus, or medicine. \n    (c)   Establishes procedures by which a health care \nprovider shall be paid the lesser of (1) the provider’s \nusual charge, or (2) the maximum fee established \nunder this rule, or (3) the MCO/PPO contracted price, \nwhere applicable. \n \n \n Rule 30 also contains the following relevant definitions: \n  F.   Definitions. \n  .... \n  34.   “Maximum allowable payment” means the maximum \n  fee for a procedure established by this rule or the  \n  provider’s usual and customary charge, whichever \n  is less, except as otherwise might be specified. \n \n  35.   “Maximum fee” means the maximum allowable fee \n  for a procedure established by this rule. \n   \n  .... \n \n  51.  “Practitioner” means a person licensed, registered \n  or certified as an audiologist, doctor of chiropractic, \n  doctor of dental surgery, doctor of medicine, doctor of \n  osteopathy, doctor of podiatry, doctor of optometry, \n  nurse, nurse anesthetist, nurse practitioner, occupational \n  therapist, orthotist, pharmacist, physical therapist, \n  physician’s assistant, prosthetist, psychologist, or \n  other person licensed, registered, or certified as a \n  health care professional. \n \n  .... \n \n\nJacobs – G700777 \n \n9 \n \n  58.  “Provider” means a facility, health care organization, \n  or a practitioner. \n \n \n According  to  the  documentary  evidence,  Lay  is  a  LPC-Licensed  Professional \nCounselor  and  a  NCC-National  Certified  Counselor.    Therefore,  she  is  licensed  and \ncertified as a health care professional and is subject to payment for services under  Rule \n30.  Rule 30 provides the following with respect to payment for services: \n1.  Payment. \n1.   Reimbursement for health care services shall be the \n                      Lesser of (a) the provider’s usual charge, or (b) the  \n  maximum fee calculated according to the AWCC Official \n  Fee Schedule (and/or any amendments to that fee \n  schedule) or (c) the MCO/PPO contracted price, where \n  applicable.  A licensed provider shall receive no more \n  than the maximum allowable payment, in accordance \n  with this rule, for appropriate health care services \n  rendered to a person who is entitled to health care \n  service. \n \n \n Rule 30 is clear that Lay is limited to the lesser of her usual charge; the maximum \nfee calculated according to the AWCC Official Fee Schedule or the MCO/PPO contracted \nprice.  No evidence has been submitted indicating that Lay should be paid pursuant to \nthe MCO/PPO contracted price. Therefore, payment for her services is limited by law to \nthe lesser of her usual charge or the AWCC Fee Schedule. \n I also note that Rule 30 prohibits a provider from billing a carrier any amount that \nexceeds the maximum allowable payment.  Section 1 L. states: \n  L.  Amounts in Excess of Fees. \n  The provider shall not bill the employee, employer, or \n  carrier for any amount for health care services provided \n  for the treatment of a covered injury or illness when that \n  amount exceeds the maximum allowable payment \n  established by this rule. \n\nJacobs – G700777 \n \n10 \n \n In finding that Lay is limited to the lesser of her usual charge or the AWCC Fee \nSchedule, I note that claimant has cited no authority in support of his contention that the \nCommission has any authority  to  order  payment  of medical  expenses  in  excess  of  the \nrates set forth in Rule 30.  To the contrary, the Courts have recognized that the provisions \nof Rule 30 are mandatory.  In Burlington Industries v. Pickett, 336 Ark. 515, 988 S.W. 2d \n3  (1999), the  Arkansas  Supreme  Court  discussed  Rule 30  in  connection  with an  issue \nregarding payment of medical bills that had not been properly submitted pursuant to Rule \n30.  In doing so, the Court stated: \n  It is obvious that the design of the Rule is to control \n  medical costs for the benefit of all affected by workers’ \n  compensation laws.   In the instant case the full \n  Commission rejected appellant’s argument that  \n  Rule 30’s procedures for submission of medical  \n  bills are prerequisite to a carrier’s payment obliga- \n  tion.  However, there is nothing in Rule 30 which \n  implies its requirements are discretionary.   \n  (Emphasis added.) \n \n \n Subsequently, in ABF Freight Systems v. Dugger, 219 Ark. App. 176, 564 S.W. 3d \n670, the Court of Appeals discussed Rule 30 and preauthorization requirements.  In its \nopinion, the Court cited the Supreme Court’s language quoted above and stated: \n  While noting that a different section is at issue in \n  Burlington – section (I)(F) – our supreme court’s \n  broad language states that the entire rule, unless \n  expressly stated otherwise, is mandatory. \n \n \n Likewise, in this case, there is no language in Rule 30 indicating that payment of \nthe maximum fee is discretionary.  Rule 30 specifically states that payment is to be the \nlesser of the providers usual charge; the maximum fee according to the AWCC Official \n\nJacobs – G700777 \n \n11 \n \nFee Schedule; or the MCO/PPO contracted price.  This language is not discretionary. \n Accordingly, I find that respondent is not liable for payment of Lay’s services at a \nrate greater than that permitted pursuant to Rule 30. \n Claimant  contends that if respondent is not ordered to make payment at Lay’s \nbilled  rate  she  will  most  likely  decline  to  continue  treating  claimant.    At  this  point,  this \ncontention is speculative.  However, I do note that if Lay were to chose not to continue to \ntreat  claimant  for  his  post-traumatic  stress  disorder,  that  respondent  would  still  be \nresponsible  for  providing  all  reasonable  and  necessary  medical  treatment  for  his \ncompensable injury. \n At  the  time  of  the  hearing  Attorney  Muldrow  indicated  that  if  Lay  chose  not  to \ncontinue  treating  claimant  that  claimant  could  file  for  a  change  of  physician  and  the \nCommission would be responsible for finding a new provider to provide counseling.  First, \nI note that pursuant to A.C.A. §11-9-508(a) respondent has the duty to “promptly provide” \nmedical  treatment  as  may  be  necessary  in  connection  with  the  injury  received  by  the \nemployee.    Respondent  has  not  contended  that  claimant  is  not  entitled  to  continued \ncounseling for his  post-traumatic  stress  disorder  as  a  result  of  his compensable  injury.  \nRespondent  cannot  abdicate  its  responsibility  for  promptly  providing  treatment  to  the \nclaimant by sitting by idly and relying upon the Commission to find a provider willing to \ntreat  claimant  pursuant  to  the  rate  set  forth  in  the  fee  schedule.    Respondent has  an \naffirmative duty to provide prompt medical treatment that is reasonable and necessary. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that respondent \n\nJacobs – G700777 \n \n12 \n \nshould be held in contempt for failing to comply with the opinion of  February 7, 2022.  In \naddition, claimant has failed to prove by a preponderance of the evidence that respondent \nis liable for paying for Linda Lay’s services at a rate greater than the maximum allowable \nrate permitted in the Commission’s fee schedule. \n The respondent is liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $486.38. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G700777 LOUIS J. JACOBS, Employee CLAIMANT GERDAU MACSTEEL, INC., Employer RESPONDENT AMERICAN ZURICH INSURANCE CO., Carrier RESPONDENT OPINION FILED JANUARY 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County,...","fetched_at":"2026-05-19T23:11:06.780Z","links":{"html":"/opinions/alj-G700777-2023-01-09","pdf":"https://labor.arkansas.gov/wp-content/uploads//JACOBS_LOUIS_G700777_20230109.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}