{"id":"alj-G806325-2023-08-03","awcc_number":"G806325","decision_date":"2023-08-03","opinion_type":"alj","claimant_name":"Williamd Bergthold","employer_name":"City Of Siloam Springs","title":"BERGTHOLD VS. CITY OF SILOAM SPRINGS AWCC# G806325 AUGUST 3, 2023","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["wrist"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BERGTHOLD_WILLIAMD_G806325_20230803.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BERGTHOLD_WILLIAMD_G806325_20230803.pdf","text_length":10827,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. G806325 \n \nWILLIAM D. BERGTHOLD, Employee                                                                   CLAIMANT \n \nCITY OF SILOAM SPRINGS, Employer                                                            RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, Carrier                                                    RESPONDENT \n \n \n OPINION FILED AUGUST 3, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On July 13, 2023, the above captioned claim came on for a hearing at Springdale, Arkansas.  \nA pre-hearing conference was conducted on June 1, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na 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 this claim. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.   Entitlement to attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “He is entitled to payment of attorney’s fees for temporary total \ndisability. The period of temporary total disability was a result of his surgery by Dr. Kelly. Additional \n\nBergthold-G806325 \n2 \n \n \ntreatment was controverted by the respondent and was the subject of a previous hearing. Claimant \nreserves all other issues.”  \n The  respondents contend that “Claimant’s attorney is not entitled to an attorney’s fee. \nClaimant is currently treating with Dr. James Kelly. This case was previously litigated on the issue of \nadditional  medical  treatment.  Following  the  Opinion,  respondents  authorized  treatment  with  Dr. \nKelly.  Dr.  Kelly  then  recommended  surgery.  Respondents  immediately  authorized  the  surgery. \nClaimant’s temporary total disability period is due to the surgery performed by Dr. Kelly. Respondents \ncontend that they never controverted the surgery recommendation. Therefore, claimant’s attorney is \nnot  entitled  to  a  fee  on  the  temporary  total  disability  following  the  surgery  or  any  other  indemnity \nbenefits that may arise therefrom.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the  arguments of counsel, \nthe following findings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June 1,    \n 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.    The stipulations by counsel made during oral argument are hereby accepted as fact.  \n 3.        Claimant's  attorney  is  entitled  to  an  attorney  fee  on  temporary  total  disability  benefits \n previously paid to claimant as a result of his wrist surgery in 2023. \n \n FACTUAL BACKGROUND \n Claimant suffered a compensable injury to his right upper extremity on August 23, 2018. After \nproviding benefits to claimant for over two years, respondent took the position in 2022 that further \n\nBergthold-G806325 \n3 \n \n \nmedical treatment requested by claimant was not reasonably necessary.  As a result, claimant’s attorney \nfiled a request for a hearing on claimant’s entitlement to additional medical benefits, and in an Order \nentered on August 11, 2022, this Court found that claimant was entitled to additional treatment.  That \nOrder was not appealed, and claimant returned to Dr. James Kelly’s care, which included surgery on \nhis  right  wrist.    While  claimant  was  healing  from  the  surgery,  respondent  resumed  payment  of \ntemporary total disability (TTD) benefits.    \n Claimant’s attorney believed  she  was  due  an attorney’s fee  on  the  indemnity  benefits,  and \nrespondent  withheld from claimant’s TTD benefits the  sum  that  would  reflect  one-half  of  the \nattorney’s fees.  The parties requested oral argument to set forth their positions on the respondent’s \nresponsibility for the other half of the attorney’s fee, as they did not believe there were any material \nfacts in dispute.  After hearing their arguments and reviewing the documents, I concur that the material \nfacts as set out in the previous paragraph are not in dispute.  \n \nADJUDICATION \n \n The question presented in this case is whether respondent is liable for one-half of the \nattorney’s fee as per A.C.A §11- 9-715.   The pertinent parts of that statute are:  \n \n(a)(1)(B) Attorney's fees shall be twenty-five percent (25%) of compensation \nfor  indemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee. Attorney's fees shall not be awarded on medical benefits or \nservices except as provided in subdivision (a)(4) of this section. \n... \n(2)(B)(i) In  all  other  cases  whenever  the  commission  finds  that  a  claim  has \nbeen controverted, in whole or in part, the commission shall direct that fees for \nlegal services be paid to the attorney for the claimant as follows: One-half (½) \nby the employer or carrier in addition to compensation awarded; and one-half \n(½)  by  the  injured  employee  or  dependents  of  a  deceased  employee  out  of \ncompensation payable to them. \n(ii) The  fees  shall  be  allowed  only  on  the  amount  of  compensation  for \nindemnity benefits controverted and awarded.   \n \n\nBergthold-G806325 \n4 \n \n \n Respondent contends that because there was no award of temporary total disability benefits \nin this case in the 2022 order, and because it paid TTD benefits in 2023 during the post-surgery healing \nperiod without being ordered to do so, imposing the one-half of the attorney fee on those indemnity \nbenefits is not appropriate.  Claimant maintains that without the work his attorney did to secure his \nmedical benefits in 2022, he would not have had the surgery and would not have  been in a healing \nperiod to qualify for TTD.\n1\n   \n This issue has been before both the Workers’ Compensation Commission and the Arkansas \nCourt  of  Appeals,  and  both  have  found  that  under  similar  circumstances,  an  attorney  fee  is \nappropriate, see Walmart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W. 3rd 835 (2001). In Brown, the \nrespondent initially accepted a claim and paid some compensation benefits. However, at a pre-hearing \nconference the employer controverted claimant’s entitlement to temporary partial disability benefits \nand a hearing was scheduled. Approximately one month before the scheduled hearing, the employer \nindicated  that  it  would  accept  the  temporary  partial  disability  and  pay  appropriate  benefits,  but \nrefused  to  pay  an  attorney  fee  on  the  temporary  partial  disability  benefits.  The  Court  of  Appeals \naffirmed the Commission’s decision to award an attorney fee. In doing so, the Court stated:  \nThe Commission interpreted the requirements of Section 11-9-715(a)(2)(B)(ii) \nto be that where an employer controverts an injured employee’s entitlement to \ncertain benefits, but later accepts liability prior to a hearing on the merits, the \nemployee’s attorney may still request a hearing for an attorney’s fee on those \ncontroverted benefits. The Commission found that when there is no dispute \nthat the employer controverted benefits but then paid the benefits on which \nan attorney fee is sought that the employee has established an award of those \nbenefits for purposes of the employee’s attorney seeking an attorney’s fee \nunder Ark. Code Ann. Section 11-9-715(a)(2)(B)(ii). The Commission found \nno  requirement  in  Section  11-9-715(a)(2)(B)(ii)  requiring  that  an  award  of \n \n1\n Respondent’s attorney conceded this was true in this exchange:  \nThe Court:...if I had not issued an Order on August 11, 2022, directing that he can return to [Dr.] Kelly, then there \nwould have been no surgery.  \n \nMs. Edwards: I mean, probably not; no. (TR. 18)  \n\nBergthold-G806325 \n5 \n \n \ncontroverted benefits must precede the employer’s payment of benefits for the \nclaimant’s  attorney  to  be  entitled  to  a  fee.  We  agree  and  hold  that  the \nCommission’s findings are supported by substantial evidence.   \n \n The Court went on to state that it had long been recognized that making an employer liable \nfor  an  attorney  fee  serves  a  legitimate  social  purpose  such  as  discouraging  oppressive  delay  in \nrecognition of liability, deterring arbitrary or capricious denial of claims, and ensuring the ability of \nclaimants to obtain adequate and competent legal representation. “If the fundamental purpose of an \nattorney  fee  is  to  be  achieved,  it  must  be  considered  that  the  real  object  is  to  place  the  burden  of \nlitigation expenses upon the party which made it necessary.” Cleek v. Great Southern Metals, 335 Ark. \n342,  981  S.W.  2d  529  (1998).  The  Court  went  on  to  note  that  if  the  claimant  in Brown “had  not \nemployed  counsel  to  assist  her,  it  was  reasonable  to  conclude  that  her  claim  for  temporary  partial \ndisability benefits would not have been properly presented and protected.” Likewise, in this case, if \nclaimant’s counsel had declined to assist him in approval of the surgery to his right wrist because there \nwere no indemnity benefits from which she could be paid, it is reasonable to conclude that he would \nhave never been entitled to temporary total disability benefits.\n2\n  \n Based  upon  the  decision  in Brown,  I  find  that  claimant's  attorney  is  entitled  to  an attorney \nfee on the temporary total disability benefits which were paid as a result of claimant's wrist surgery. \n \nORDER \n \nClaimant's attorney is entitled to an attorney’s fee on temporary total disability benefits paid \nto claimant as a result of his wrist surgery in 2023. \nRespondents  are  liable  for  payment  of  the  court  reporter's  charges  for  preparation  of  the \nhearing transcript in the amount of $ 461.25.    \n \n2\n I note that the attorney in Brown did not have to prepare for and attend a hearing to be entitled to the attorney’s fee; \nclaimant’s attorney appears to have done more work in this case to secure benefits for her client.  \n\nBergthold-G806325 \n6 \n \n \nIT IS SO ORDERED. \n    \n \n                                                                                           \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G806325 WILLIAM D. BERGTHOLD, Employee CLAIMANT CITY OF SILOAM SPRINGS, Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE, Carrier RESPONDENT OPINION FILED AUGUST 3, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, A...","fetched_at":"2026-05-19T23:03:27.764Z","links":{"html":"/opinions/alj-G806325-2023-08-03","pdf":"https://labor.arkansas.gov/wp-content/uploads//BERGTHOLD_WILLIAMD_G806325_20230803.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}