{"id":"alj-H107730-2023-01-18","awcc_number":"H107730","decision_date":"2023-01-18","opinion_type":"alj","claimant_name":"Gary Norris","employer_name":"City Of North Little Rock","title":"NORRIS VS. CITY OF NORTH LITTLE ROCK AWCC# H107730 JANUARY 18, 2023","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["knee","wrist"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/NORRIS_GARY_H107730_20230118.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NORRIS_GARY_H107730_20230118.pdf","text_length":26871,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H107730 \n \n \nGARY W. NORRIS, EMPLOYEE CLAIMANT \n \nCITY OF NORTH LITTLE ROCK, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUN. LEAGUE, \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED JANUARY 18, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 25, 2022, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Ms.  Carol  Lockard  Worley,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On  October  25,  2022,  the  above-captioned  claim  was  heard  in  Little  Rock, \nArkansas.  A prehearing conference took place on September 7, 2022.  The Prehearing \nOrder entered on September 8, 2022, pursuant to the conference was admitted without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing amendments at the hearing, they read: \n\nNORRIS – H107730 \n \n2 \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted   at   all   relevant   times,   including   September   14,   2021,   when \nClaimant  sustained  compensable  injuries  to his  right  upper and  left  lower \nextremities.    Respondents  accepted  these  injuries  as  compensable  and \npaid certain benefits in connection therewith. \n3. Claimant’s  average  weekly  wage  entitles  him  to  compensation  rates of \n$586.00/$439.00. \n4. Claimant  was assigned  an  impairment  rating  of  thirteen  percent  (13%)  to \nthe  upper  extremity  in  connection  with  his  stipulated  compensable  right \nupper extremity injury.  This rating should be assigned to 244 weeks, per \nArk. Code Ann. § 11-9-521(a)(1) (Repl. 2012). \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  After amendments at the hearing, the following were litigated: \n1. Whether  Claimant  is  entitled  to  certain  alleged  unpaid  medical  expenses \nin connection with his stipulated compensable injuries. \n2. Whether,  and  to  what  extent,  Claimant  is  entitled  to  a  controverted \nattorney’s fee under Ark. Code Ann. § 11-9-715 (Repl. 2012) in connection \nwith  his  stipulated  impairment  rating  of  thirteen  (13%)  to  the  right  upper \nextremity. \n\nNORRIS – H107730 \n \n3 \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following amendments  at the hearing, \nare as follows: \n Claimant: \n1. Claimant sustained compensable injuries to his left knee and right arm in \nthe  course  and  scope  of  his  employment  when  he  fell  while  doing  an \nHVAC inspection on September 14, 2021.  He is entitled to the payment of \nreasonable  and  necessary  medical  expenses,  out-of-pocket  expenses, \nmileage  reimbursement,  additional  anatomical  impairment for  his  injuries, \nand an attorney’s fee. \n2. Claimant continues to be billed by Baptist Health in the amount of $850.00 \nfor treatment   related   to   his   compensable   knee   injury—specifically, \nanesthesia  rendered  in  connection  with  his  surgery.    Respondents  have \nknown  about  this  bill  for  over  a  year,  but  have  failed/refused  to  pay for \nsame.  Claimant’s  credit  rating  should  not  be  negatively  affected  by \nRespondents’ action/inaction in this regard. \n3. Dr.  Mark  Tait  assigned  Claimant  an  impairment  rating  of  thirteen  percent \n(13%)  to  the  upper  extremity  for  his  compensable  right  upper  arm  injury.  \nClaimant  should  have  been  entitled  to  31.72  weeks  of  permanent  partial \ndisability benefits for same under  Ark. Code Ann. § 11-9-521(a)(1) (Repl. \n2012).  But  Respondents  have  paid/are  paying  Claimant  23.79  weeks  in \n\nNORRIS – H107730 \n \n4 \nthat  they used  the  elbow-to-wrist  reference  in  the  statute  (183  weeks – § \n11-9-521(a)(2)).    Claimant  is  entitled  to  the  underpayment  on  the  rating \n(7.93  weeks).    After  Respondents  sent  Claimant  correspondence  that \nincorrectly  used  the  183-week  standard,  Claimant’s  counsel  reached  out \nto  Respondents’  counsel;  and  the  later  agreed  with  the  former  that  the \nwrong standard was being used.  Therefore, Claimant’s counsel is entitled \nto a controverted attorney’s fee on the 7.93 weeks’ worth of benefits. \nRespondents: \n1. Respondents  contend  that  all  appropriate  benefits  have  been  and are \ncontinuing  to  be  paid  with  regard  to  this  matter.    Medical  benefits  have \nbeen  afforded  to  Claimant  and  bills  have  been  paid.  With  regard  to  the \nunpaid medical bill from Baptist Health, Respondents have been unable to \nget a properly submitted bill under AWCC R. 099.30.  As a result, the bill \ncannot be sent to the auditing company for payment.  Claimant should not \nhave  his  credit  adversely  affected  by  the  unpaid  bill  because  Rule  30 \nprohibits balance billing. \n2.  Claimant has been assigned permanent impairment ratings by his treating \nphysicians.  Both ratings have been accepted and are being paid out.  No \npart   of   the   ratings   that   Claimant   has   been   assigned   has   been \ncontroverted. \n\nNORRIS – H107730 \n \n5 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  the  witnesses  and  to  observe  their  demeanor,  I  hereby make  the \nfollowing  findings  of  fact  and  conclusions  of  law  in  accordance with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Issue  No.  1,  concerning  the  non-payment  by  Respondents of  a  bill  for \nanesthesiology services rendered Claimant in connection with treatment of \nhis  stipulated  left  knee  injury,  will  not  be  addressed.    Instead,  it  will  be \nconsidered reserved. \n4. Claimant   has   proven   by   a   preponderance   of   the   evidence   that \nRespondents  controverted  his  entitlement  to  a  thirteen  percent  (13%) \nimpairment rating under Ark. Code Ann. § 11-9-521(a)(1) (Repl. 2012), as \nopposed to the lesser-valued rating they accepted under § 11-9-521(a)(2), \nin connection with his stipulated compensable right upper extremity injury.  \nThus,  his  counsel,  the  Hon.  Andy  Caldwell,  is  entitled  under  Ark.  Code \nAnn. § 11-9-715 (Repl. 2012) to a controverted fee on the additional 7.93 \nweeks’  worth  of  permanent  partial  disability  benefits  to  which  Claimant  is \nentitled under § 11-9-521(a)(1).  At Claimant’s stipulated permanent partial \n\nNORRIS – H107730 \n \n6 \ndisability rate of $439.00 per week, this fee is valued at $870.32.  Claimant \nand  Respondents  each  owe  half  of  this,  or  $435.16,  to  Mr.  Caldwell \npursuant  to  § 11-9-715(a)(2)(B)(i).  These  monies  are  to  be  paid  in \naccordance with this provision. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses were Claimant and Andrea Sayre. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  were Claimant’s  Exhibit  1,  a  compilation  of his  medical  records, \nconsisting of two index pages and 222 numbered pages thereafter; Claimant’s Exhibit 2, \nnon-medical  documents,  consisting  of a  one  index  page  and  eight  numbered  pages \nthereafter;  Respondents’  Exhibit  1, non-medical  documents,  consisting  of a  one  index \npage   and 24   numbered   pages   thereafter;   and   Respondents’   Exhibit   2,   another \ncompilation  of  Claimant’s  medical  records,  consisting  of  a  one-page  index  and  36 \nnumbered pages thereafter. \n In  addition,  I  have  blue-backed\n1\n  to  the  record  the  prehearing  questionnaire \nresponses filed by Claimant on April 18, August 11, and October 18, 2022, respectively, \n \n \n1\nAt  the  hearing,  I  indicated  that  without  objection,  the  prehearing  questionnaire \nresponses  of  the  parties  would “be  incorporated  by  reference” in  order  to  set  out  the \nrespective contentions of the parties, since those were not included in the September 8, \n2022, Prehearing Order.  [T. 20]  Respondents’ counsel spoke up to make sure that all \nthree  of   Claimant’s  filings   were   being   incorporated,   arguing   that   they   contained \ninformation  bearing  on  the  issue  concerning  whether  her  clients  had  controverted \nClaimant’s entitlement to a controverted fee on any portion of the impairment rating that \n\nNORRIS – H107730 \n \n7 \nand  consisting  of  three,  three,  and  four  numbered  pages,  respectively;  and  the \n \nhe  had  been  assigned  regarding  his  stipulated  compensable  right  upper  extremity \ninjury.  [T. 20-21]  In commenting on this, I remarked as follows: \n \n.  .  .  we’re  going  beyond  the  simple  matter  of  here  are  the  respective \ncontentions  of  the  parties  as  they  have  stated  them  in  their  pre-hearing \nquestionnaire  responses.    This  is  going  more  to,  perhaps,  substantive \nevidence   along   the   lines   of   whether   or   not   Respondents   actually \ncontroverted  any  portion  of  the  13%  rating  .  .  .  because  it’s  one  thing  to \nsimply incorporate them in so I can be able to correctly conceptualize and \nset   out   what   your   respective   contentions   are.      It’s   another   matter \naltogether if you’re wanting them in for some type of substantive evidence \non  the  controversion  issue,  and  that’s  why  I  was  going to [flesh]  this  out.  \nWe’re not even yet to the matter of the exhibits.  We’re still on just sorting \nout  the  contents  of  the  Prehearing  Order,  believe  it  or  not.    So  maybe  I \nshould  even  hold  my  tongue  on  this  and  move  on,  because  both  of  you \nhave   agreed—as   I   understand   it,   you   have   agreed   to having   the \nprehearing  questionnaire  responses  come  in  for  the  purposes  of  just  me \nbeing able to restate your contentions.  Maybe I should just move on from \nthere and we can talk about the documentary evidence at the appropriate \ntime. \n \n[T.  21,  24]  Evidence,  once  admitted,  may  be  considered  by  the  trier  of  fact  for  any \nlegitimate  purpose.   See,  e.g.,  Spicer  v.  State,  32  Ark.  App.  209,  799  S.W.2d  562 \n(1990)(evidence  of  defendant’s  refusal  to  submit  to  chemical  test  admissible  as \ncircumstantial  evidence  showing consciousness  of  guilt,  and  also  relevant  to  issue  of \nintoxication).  Under Ark. R. Evid. 105: \n \nWhenever evidence which is admissible as to one [1] party or for one [1] \npurpose  but  not  admissible  as  to  another  party  or  for  another  purpose  is \nadmitted,  the  court,  upon  request,  shall  restrict  the  evidence  as  to  its \nproper scope and instruct the jury accordingly. \n \nThis  proceeding  was a  bench  trial.    Moreover,  Ark.  Code Ann.  § 11-9-705(a)(1)  (Repl. \n2012) provides that the “Commission shall not be bound by technical or statutory rules \nof evidence . . . but may . . . conduct the hearing, in a manner as will best ascertain the \nrights  of  the  parties.”  Consequently,  these  prehearing  filings,  admitted  into  evidence, \nmay  be—and  will  be—considered  not  only  for  the  purpose  of  correctly  setting  out  the \nrespective  contentions  of  the  parties,  but will also  be  given  due  weight  in  determining \nwhether  and  to  what  extent  Respondents  controverted  the  upper-extremity  impairment \n\nNORRIS – H107730 \n \n8 \nprehearing  questionnaire  response  filed  by  Respondents  on  August  26,  2022,  and \nconsisting of three numbered pages. \nAdjudication \nA. Outstanding Medical Bill \n Claimant,  who  was  employed by  Respondent  City  of  North  Little  Rock on \nSeptember 14, 2021, suffered stipulated compensable injuries on that date.  He testified \nthat  he  was  employed  there  as  an  HVAC/mechanical  inspector,  and  was  hurt  in  the \nfollowing episode: \nI went to a residence and went up into his—a new residence, no one lived \nthere.   I went into the attic and I was lookin’ at the heat and  air unit, and \nthe electrical was messed up on it, and I was—I’m trying to make  it short \nand sweet—so I was lookin’ at the electrical and then it was all messed up \nand  it  had  failed,  so  when  I  turned  around,  I—there  was  some  debris  on \nthe  floor  and  I  stepped  on  it,  my  feet  went  backwards  and  I  fell  forward \nand landed on the ductwork, and the two-inch metal strapping caught me \nin the middle of my arm as I fell. \n \n[T. 31-32] \n Not only did  Claimant suffer  severe lacerations of his right  upper extremity as a \nresult  of  his  work-related  fall—including  a  transection  of  his  brachial  artery  that \nnecessitated  surgery  that  same  day—but  he  hurt  his  left  knee  as  well.  Eventually,  on \nNovember 5, 2021, he had to undergo  an operation on that as well.   This consisted of \nan arthroscopy with meniscectomy.  Claimant related that he has been getting a bill for \n$850.00 in connection with his knee surgery. \n \nrating.  It was thus unnecessary for their admission to be addressed yet again when the \nother documentary evidence was being offered into evidence.  [T. 27-29] \n\nNORRIS – H107730 \n \n9 \n Andrea  Sayre,  the  workers’  compensation  adjustor  for  Respondent  Arkansas \nMunicipal  League,  testified  that  she  has  handled  the  instant  claim  since  its  inception.  \nThe following exchange took place during her examination: \nQ. Let’s  talk  first  about  the  bill.    Can  you  tell  the  Judge  what  your \nefforts have been to get payment of the bill—the $850.00 bill that’s \noutstanding in this one? \n \nA. Yes.    I’ve  made  multiple  attempts  to  get  the  actual  HCFA.    I’ve \nspoken  with  multiple  people.    I’ve  sent  letters  and  I’ve  sent  emails \nrequesting the HCFA, and to date have not received it. \n \nQ. Okay.  And we have introduced here today your efforts on that, and \nI think they are at Claimant’s Exhibit 2 [sic—actually  Respondents’ \nExhibit 1], starting at page 20.   Andrea, can you pay a medical bill \nwithout getting a HCFA form? \n \nA. No. \n \nQ. Does Rule 30 require that you have that? \n \nA. Yes. \n \nQ. And  what  all  is  involved  with  obtaining  that?    Would  it just  be \nUAMS,  or  whoever  is  sending  this  bill,  to  send  you  the  proper \nstatement? \n \nA. That’s correct. \n \nQ. Okay.    And have  you gotten  any  explanation  from  them as  to  why \nthat hasn’t been done? \n \nA. No, I have not. \n \n[T. 44-45] \n The documentation in Respondents’ Exhibit 1, as outlined by Sayre, reflects that \nBaptist Health has sent Claimant on multiple occasions a bill for $850.00.  This was for \n\nNORRIS – H107730 \n \n10 \nanesthesiology  services  in  connection  with  his  knee  operation.    In  correspondence  to \nBaptist Health dated January 26, 2022, Sayre wrote: \nTo Whom It May Concern: \n \nMr.  Norris  received  the  statement  included  in  relation  to  his  workers[‘] \ncompensation injury.  In order for payment to be made, we are requesting \nthe following: \n \n1. A HCFA 1500 claim form or UB claim form \n2. Medical records for the outstanding bill \n \nThe exhibit does not reflect that the requested items were sent.  Instead, Baptist Health \nsimply re-sent the original statement for $850.00.  Email correspondence in the exhibit \nreflect that Sayre followed up on this matter on September 20 and October 12, 2022. \n According to AWCC R. 099.30 Part I, Section (I)(4), “Billing for provider services \nshall be submitted on the forms approved by the Commission: UB-92 and HFCA-1500 \n[sic—should be ‘HCFA-1500’].”   Subsection (10) states that carriers may return bills that \nare not on the proper form so that they can be corrected and resubmitted; but they must \ntake this action within 20 days of receipt of the bill. \n Parts  II  and  III  of  Rule  30  set  out  the  procedure  for  resolving  a  billing  dispute \nbetween a provider and a carrier.  The role of an administrative law judge in this matter \nis to review such matters on appeal, pursuant to Part III, Section (A)(3).  That is not the \nproceeding  at  hand.    Moreover,  the  general  test  for  standing  is  whether  the  person \nattempting  to  raise  an  issue  has  suffered  an “adverse  impact.”  See,  e.g.,  Pitchford  v. \nCity of Earle, 2019 Ark. App. 251, 576 S.W.3d 103.  Since under Part I, Section (I)(6)(b) \nof Rule 30, the provider cannot instead attempt to collect the bill, or any portion thereof, \n\nNORRIS – H107730 \n \n11 \nfrom  the  claimant  who  received  the  service,  it  does  not  appear  that  Claimant  has \nsuffered  an “adverse  impact”  by  the  non-payment  of  the  anesthesiology  bill  for  the \npurpose  of  conferring  standing  to  raise  this  issue.   See  also  Nelson  v.  Ark.  Rural \nPractice  Med.  Practice  Loan  &  Scholarship  Bd.,  2011  Ark.  491,  385  S.W.3d  762 \n(claimant  must  have  a “personal  stake”  in  outcome  of  controversy  in  order  to  have \nstanding  regarding  such).  For  these  reasons,  Issue  No.  1  will  not  be  addressed.  \nInstead, it will be considered reserved. \nB. Controversion \n In  addition,  Claimant  has  argued  that  his  attorney  should  be  entitled  to  a \ncontroverted fee in connection with the permanent partial disability benefits he received \nfor the permanent impairment of his right upper extremity.   Boiled down, his position is \nthat  counsel’s efforts  resulted  in  Respondents  using a  different provision  of  the  statute \nthat  governs  the  valuation  of  his  permanent  partial  disability  benefits;  that  in  the \nprocess,  the  amount  of  benefits  that  he  received  increased;  and  that  counsel  should \ncollect a statutory fee on the amount of this increase. \n Arkansas  Code  Annotated  Section  11-9-715  (Repl.  2012)  is the  authority  in  this \nmatter.  This provision reads in pertinent part: \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat  a  claim  has  been  controverted,  in  whole  or  in  part,  the  commission \nshall  direct  that  fees  for  legal  services  be  paid  to  the  attorney  for  the \nclaimant as follows:  One-half (½) by the employer or carrier in addition to \ncompensation  awarded;  and  one-half  (½)  by  the  injured  employee  or \ndependents  of  a  deceased  employee  out  of  compensation  payable  to \nthem. \n\nNORRIS – H107730 \n \n12 \n \n (ii) The fees shall be allowed only on the amount of compensation \nfor indemnity benefits controverted and awarded. \n \nId.  §  11-9-715(a)(1)(B)  &  (a)(2)(B)(i)-(ii).  One  of  the  purposes  of  the  attorney's  fee \nstatute  is  to  put  the  economic  burden  of  litigation  on  the  party  who  makes  litigation \nnecessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1998). \n The evidence reflects that on January 26, 2022, Dr. Mark Tait assigned Claimant \nan  impairment  rating  in  connection  with  his  stipulated  right  upper  extremity  injury, \nwriting: \n[T]his  is  an  established  patient  who  has  been  followed  for  antecubital \nfossa wound after arm revascularization work injury on 09/14/2021 . . . [i]n \naccordance   with   the   American   Medical   Asociation   [G]uides   to   the \n[E]valuation   of   [P]ermanent   [I]mpairment   4\nth\n   [Edition].      Patient   has \nimpairment  of  wrist  looking  at  figure  26/29/35  on  pages  3/36,  3/38,  and \n3/41  of  6%  of  upper  extremity  and  [o]n  page  3/30  to,  3/33,  and 3/30 \nfigures  19/21/23  patient  has  impairment  as  follows:    Index –  4%,  long – \n3%, right – 2%, small -0%.  On page 3/18 and 3/19 [o]n table 1 and 2 this \nis  a  2%  loss  of  hand  function.    He  also  has  significant  decreased  grip \nstrength.    Therefore  has  as  an  8%  loss  due  to  motion  and  an  additional \n5% loss secondary to likely permanent grip strength loss.  Therefore 13% \npermanent impairment of the upper extremity is representative of his long-\nterm requirement [sic]. \n \nPer DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 730 (30\nth\n ed. 2003),“cubital fossa” is \n“the depression in the anterior region of the elbow.”  Injuries at or above the elbow are \ngoverned  by  § 11-9-521(a)(1),  which  sets  the  amount  of  total  loss  as  being  worth  244 \nweeks’ worth of benefits.  Injuries between the elbow and the wrist, on the other hand, \nare entitled only to a maximum of 183 weeks under § 11-9-521(a)(2). \n A thirteen  percent  (13%)  rating  thus  merits  31.72  weeks  under  the  former \nprovision,  and  only  23.79  weeks  under  the  latter.  In  a  letter  to  Claimant  from  Sayre \n\nNORRIS – H107730 \n \n13 \ndated February 15, 2022, that is in evidence, she informed Claimant that the rating that \nTait assigned him “equals 23.79 weeks at your permanent partial compensation rate of \n$440.00 for a total dollar figure of $10,467.60.”  This miscalculation, per the evidentiary \nrecord,  remained  unchanged  until  Claimant’s  counsel  filed  his  second  prehearing \nquestionnaire  response  on  August  11,  2022.    Therein,  counsel  included  the  following \ncontention: \nDr. Tait assigned the Claimant a 13% impairment rating to the right upper \nextremity  for  the  distal  biceps  injury.    The  Claimant  should  have  been \nentitled  to  31.72  weeks  for  same.    Respondents  paid  the  Claimant  23.79 \nweeks in that they used elbow to wrist (183 weeks).  Claimant is entitled to \nthe  underpayment  on  the  rating  and  the  undersigned  is  entitled  to  an \nattorney’s fee for same. \n \nThereafter, on September 13, 2022, Respondents’ co-counsel sent Claimant’s attorney \na  letter  and  spreadsheet  indicating  that  $14,080.00\n2\n  had  been  paid  toward  his  upper \nand  lower  extremity  ratings,  and  that  $7,972.80  remained  unpaid.    Claimant’s  lower \nextremity   rating   is   worth   $8,096.00.      That   means   that   Respondents   in   this \ncorrespondence  conceded  at  that  point  that  the  upper  extremity  rating  was actually \nworth $13,956.80, or 31.72 weeks’ worth of benefits.  They repeated this concession at \nthe hearing, agreeing to Stipulation No. 4. \n During  Sayre’s  testimony,  she  related  that  the  impairment  rating  was  initially \napplied against the 183-week standard because (in the words of Respondents’ counsel) \n“[there  was]  no  real  indication  there  was  elbow  involvement.”  [T.  46]    However,  the \n \n \n2\nAccording  to  the  spreadsheet  in  evidence,  Respondents  have  been  paying \npermanent  partial  disability  benefits  at  the  rate  of  $440.00  per  week.    This  is  slightly \nhigher than his stipulated compensation rate, $439.00.  See infra. \n\nNORRIS – H107730 \n \n14 \nanalysis above clearly shows otherwise.  As to the reason and timing of Respondents’ \nchange to the 244-week standard,  the following exchange took place when Sayre was \non the witness stand: \nQ. And  at  some  point  and  time,  why  is  that  you  accepted  the  244 \nweeks instead of the 183? \n \nA. I[t]  was  brought  to  my  attention  with  communication  review  that  it \nwas  calculated  at  the  incorrect  rate,  and  at  that  point  I  saw  what \nhappened and accepted that is correct; it should be at the 244. \n \nQ. And was that in April of ’22? \n \nA. I believe it was—yes, ’22. \n \nQ. Okay. \n \nA. I forgot what year it was. \n \nQ. And did you ever send a letter to the Claimant after that? \n \nA. No. \n \nQ. Is there a reason why? \n \nA. I  can  assume  it  wasn’t  sent.    It  was  not  scanned  in  our  system.  \nThere was really no reason. \n \n[T. 47-48] \n Sayre  did  not  explain  the  source  of  this “communication”  that  she  reviewed.  \nFurthermore, she could not remember what year this change in position occurred, even \nthough  it  purportedly  happened  only  approximately  six  months  prior  to  the  hearing.  \nFinally, Sayre offered no explanation why there was no communication to Claimant after \nthis  purported  change in  April  2022.    Instead,  the  evidence  bears  out  that  such  a \ncommunication  did  take  place:    by  way  of  the  September  13,  2022,  letter  from \n\nNORRIS – H107730 \n \n15 \nRespondents’  co-counsel,  which  came  slightly  more  than  a  month  after  Claimant’s \nsecond  pre-hearing  questionnaire  response.    In  resolving  an  issue  such  as  the  one  at \nbar, the undersigned under Ark. Code Ann. § 11-9-704(c)(4) (Repl. 2012)  must “weigh \nthe evidence impartially and without giving the benefit of the doubt to any party.”  As the \nparty requesting award of the controverted fee, Claimant under Ark. Code Ann. § 11-9-\n705(a)(3)   (Repl.  2012)   must   prove   his  entitlement   to  the   relief   requested  by   a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet  Cove  Barium  Corp.,  212  Ark.  491,  206 S.W.2d  442  (1947).  I  cannot  credit \nSayre’s  testimony  on  this  point.    Instead,  the  evidence  shows  that  it  was  the  efforts  of \nClaimant’s  counsel  that  led  to  Respondents’ d ecision  to  apply the  impairment  rating  to \nthe 244-week standard. \n Thus, Claimant has proven by a preponderance of the evidence establishes that \nhis counsel is entitled to a controverted fee under  § 11-9-715 on 31.72 – 23.79 = 7.93 \nweeks’  worth  of  permanent  partial  disability  benefits  to  which  Claimant  is  entitled  in \nconnection  with  his  stipulated compensable  right  upper  extremity  injury.    At  his \nstipulated  permanent  partial  disability  rate  of  $439.00  per  week,  this  fee  is  valued  at \n$870.32.    Claimant  and  Respondents  each  owe  half,  or  $435.16,  under  the  above-\nquoted statutory provision; and such should be paid in accordance therewith. \nCONCLUSION AND AWARD \n Judgment  is  hereby  rendered  in  accordance  with  the  findings  of  fact  and \nconclusions of law set forth above. \n\nNORRIS – H107730 \n \n16 \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H107730 GARY W. NORRIS, EMPLOYEE CLAIMANT CITY OF NORTH LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT ARK. MUN. LEAGUE, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED JANUARY 18, 2023 Hearing before Administrative Law Judge O. Milton Fine II on October 25...","fetched_at":"2026-05-19T23:11:33.754Z","links":{"html":"/opinions/alj-H107730-2023-01-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/NORRIS_GARY_H107730_20230118.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}