{"id":"alj-H304672-2025-07-22","awcc_number":"H304672","decision_date":"2025-07-22","opinion_type":"alj","claimant_name":"Gregory Roberson","employer_name":"Pepper Source, Ltd","title":"ROBERSON VS. PEPPER SOURCE, LTD. AWCC# H304672 July 22, 2025","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["lumbar","shoulder","cervical","thoracic","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/ROBERSON_GREGORY_H304672_20250722.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBERSON_GREGORY_H304672_20250722.pdf","text_length":11659,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304672 \n \nGREGORY ROBERSON, Employee CLAIMANT \n \nPEPPER SOURCE, LTD., Employer RESPONDENT \n \nSUMMIT CONSULTING, LLC, Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 22, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  represented  by JASON  M.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On June  30,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort \nSmith,  Arkansas.      A  pre-hearing  conference  was  conducted  on June  18,  2025,  and a \npre-hearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2. The employee/employer/carrier relationship existed among the parties on July \n14, 2022. \n\nRoberson – H304672 \n \n-2- \n 3. Prior opinion of March 13, 2024, is final. \n At the time of the hearing the parties agreed to stipulate that claimant earned an \naverage weekly wage of $1,070.00 which would entitle him to compensation at the rates \nof  $713.00  for  total  disability  benefits  and  $535.00  for  permanent  partial  disability \nbenefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Attorney Fee \n The  claimant  contends that  once  the  respondents  controverted  whether  he \nsustained   a   compensable   injury   to  his   lumbar   spine  they  also   controverted  his \nentitlement to any indemnity benefits arising out of that injury. Accordingly, the claimant \ncontends that his attorney is entitled to an attorney’s fee on indemnity benefits arising \nout of surgery that he underwent on March 4, 2025. \n The  respondents  contend no  indemnity  benefits  have  been  controverted  or \nawarded. Attorney’s fees can only be awarded on indemnity benefits that have been \ncontroverted  and  awarded.  See  Ark.  Coder  Ann.  §11-9-715(a)(2)(B)(ii).  No  indemnity \nbenefits  existed  or  were  at  issue  at  the  time  and  the  previous  decision  did  not  award \nindemnity benefits. Respondents accepted and paid all indemnity benefits as soon as or \nbefore they were due. No attorney’s fee is owed. \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 \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nRoberson – H304672 \n \n-3- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on June 18, 2025, and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2. The  parties’  stipulation  that  claimant  earned  an  average  weekly  wage  of \n$1,070.00  which  would  entitle  him  to  compensation  at  the  rates  of  $713.00  for  total \ndisability  benefits  and  $535.00  for  permanent  partial  disability  benefits  is  also  hereby \naccepted as fact. \n 3. Claimant’s attorney is entitled to an attorney fee on payment of temporary total \ndisability benefits paid by the respondent beginning on February 24, 2025. \n \nFACTUAL BACKGROUND \n On  July  14,  2022,  while  working  for  respondent,  claimant  was  pinned  between \ntwo totes weighing 160-200 lbs. Respondent initially paid medical benefits for claimant’s \nright   shoulder,   cervical   spine,   thoracic   spine,   and   lumbar   spine.   However,   it \nsubsequently denied liability of compensable injuries to the spine. As a result, a hearing \nwas conducted and an Opinion filed on March 13, 2024, finding that claimant had failed \nto  prove  a  compensable  injury  to  his  cervical  spine,  but  finding  that  he  had  proven \ncompensable  injuries  to  his  thoracic  and  lumbar  spine.  This  opinion  was  not  appealed \nand the parties have stipulated that it is final. \n After  the  last  hearing,  claimant  continued  to  work  for  a  period  of  time  before \nundergoing  back  surgery.  Because  claimant  was  taken  off  work  for  this  surgery, \nrespondent  instituted  payment  of  temporary  total  disability  benefits  beginning  on \n\nRoberson – H304672 \n \n-4- \nFebruary 24, 2025. Based upon respondent’s controversion of the back injury, Attorney \nWalker  requested  an  attorney  fee  on  the  indemnity  benefits.  Respondent  has  denied \nliability  for  payment  of  a  fee  and  a  hearing  was  requested  on  Attorney  Walker’s \nentitlement to a fee. \n \nADJUDICATION \n Claimant  contends  that  his  attorney  is  entitled  to  an  attorney  fee  on  temporary \ntotal disability benefits paid as a result of surgery on his back. I find that Attorney Walker \nis entitled to a controverted attorney fee. \n Respondent contends that it is not liable for an attorney fee because claimant’s \nentitlement to temporary total disability benefits was not an issue at the time of the first \nhearing  and  when  claimant  did  undergo  surgery  it  voluntarily  paid  temporary  total \ndisability  benefits.  Therefore,  those  benefits  were  not  controverted  and  awarded \npursuant to A.C.A. §11-9-715.  \nHowever,  the  Arkansas  Workers’  Compensation  Commission  and  more \nimportantly, the Arkansas Court of Appeals have found that under similar circumstances \nan  attorney  fee  is  appropriate. Walmart  Stores,  Inc.  v.  Brown,  73  Ark.  App.  174,  40 \nS.W.3d  835  (2001).  In Brown the  respondent  initially  accepted  a  claim  and  paid  some \ncompensation benefits. However, at a prehearing conference the employer controverted \nclaimant’s  entitlement  to  temporary  partial  disability  benefits  and  a  hearing  was \nscheduled.  Approximately  one  month before the  scheduled  hearing  the  employer \nindicated  that  it  would  accept  the  temporary  partial  disability  and  pay  appropriate \nbenefits.  However,  it  refused  to  pay an attorney  fee  on  the  temporary  partial disability. \n\nRoberson – H304672 \n \n-5- \nThe  Arkansas  Court  of  Appeals  affirmed  the  Commission’s  decision  to  award  an \nattorney fee. In doing so, the Court stated: \nThe  Commission  interpreted  the  requirements  of §11-9-\n715(a)(2)(B)(ii) to be that where an employer controverts an \ninjured employee’s entitlement to certain benefits, but  later \naccepts   liability   prior   to   a   hearing   on   the   merits,   the \nemployee’s  attorney  may  still  request  a  hearing  for  an \nattorney’s  fee  on  those  controverted  benefits.  The \nCommission  found  that  when  there  is  no  dispute that  the \nemployer controverted benefits but then paid the benefits on \nwhich  an  attorney  fee  is  sought,  that  the  employee  has \nestablished  an  award  of  those  benefits  for  purposes  of  an \nattorney  seeking  an  attorney’s  fee  under  Ark.  Code  Ann. \n§11-9-715(a)(2)(B)(ii). The Commission found no \nrequirement in §11-9-715(a)(2)(B)(ii) requiring that an award \nof  controverted  benefits  must  precede  the  employer’s \npayment of benefits for the claimant’s attorney to be entitled \nto a fee. We agree and hold that the Commission’s findings \nare supported by substantial evidence. (Emphasis added.) \n \n In  reaching  the  decision  in Brown,  the  Court  relied  upon  a  decision  from  the \nArkansas  Supreme  Court  discussing  the  purpose  of  making  an  employer  liable  for  an \nattorney fee. In Cleek v. Great Southern Metals, 335 Ark. 342, 981 S.W.2d 529 (1998), \nthe Court stated: \nIn conclusion, this court has long recognized that making an \nemployer liable for attorney’s fees serves legitimate social \npurposes    such    as    discouraging    oppressive    delay    in \nrecognition of liability, deterring arbitrary or capricious denial \nof claims, and insuring the ability of necessitous claimants to \nobtain    adequate    and    competent    legal    representation. \n[Citation  omitted.]  In  the  instant  case,  while  Great  Southern \npaid  all  but  $35.00  of  Cleek’s  medical  expenses,  it  never \nrecognized  liability  for  her  injury,  and  if  Cleek  had  not \nprevailed  on  the  liability  issue  of  her  claim,  she  would  have \nbeen  barred  from  seeking  any  future  medical expenses  or \ndisability   benefits.   Great   Southern’s   undisputed \ncontroversion of Cleek’s injury claim forced Cleek to try this \ncase  fully  on  the merits.  If  Cleek had  not employed  counsel \nto assist her in this matter, it is reasonable to conclude both \n\nRoberson – H304672 \n \n-6- \nher  present  and  future  claims  for  medical  expenses  and \nbenefits   would   not   have   been   properly   presented   and \nprotected.  [Citation  omitted.]  If  the  fundamental  purposes  of \nattorney’s  fees  statutes  such  as  §11-9-715   are   to   be \nachieved,  it  must  be  considered  that  their  real  object  is  to \nplace the burden of litigation expenses upon the party which \nmade it necessary. \n \n Likewise,  in  this  case,  even  though  respondent  accepted  liability  for  temporary \ntotal disability benefits as a result of claimant’s back surgery, it did not initially recognize \nliability  for his back  injury.  If  claimant had  not  prevailed  on  the compensability issue of \nhis  back  claim,  he  would  not  have  been  entitled  to  any  future  disability  benefits. \nSpecifically, if claimant had not employed Attorney Walker to assist him in this matter, it \nis reasonable to conclude that his future claim for benefits would not have been properly \npresented  and  protected.  By  denying  compensability  of  claimant’s  back  injury, \nrespondent made litigation necessary. \n Based upon the evidence presented as well as the decisions from the Arkansas \nCourt  of  Appeals  and  the  Arkansas  Supreme  Court,  I  find  that  by  controverting \nclaimant’s entitlement to his back injury, respondent likewise controverted claimant’s \nentitlement to any future payment of temporary total disability benefits. Had claimant not \nprevailed  in  his  claim  for  compensability,  he  would  not  be  receiving  temporary  total \ndisability benefits at this time. Therefore, I find that an attorney fee is appropriate.  \n \nAWARD \n Claimant has proven that his attorney is entitled to a controverted attorney fee on \ntemporary total disability benefits paid by respondent beginning on February 24, 2025. \n\nRoberson – H304672 \n \n-7- \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.  \nAll sums herein accrued are payable in a lump sum and without discount.  This \naward shall bear interest at the maximum legal rate until paid. \n Respondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $276.00. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304672 GREGORY ROBERSON, Employee CLAIMANT PEPPER SOURCE, LTD., Employer RESPONDENT SUMMIT CONSULTING, LLC, Carrier RESPONDENT OPINION FILED JULY 22, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. C...","fetched_at":"2026-05-19T22:38:42.110Z","links":{"html":"/opinions/alj-H304672-2025-07-22","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/ROBERSON_GREGORY_H304672_20250722.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}