{"id":"alj-H306460-2024-11-18","awcc_number":"H306460","decision_date":"2024-11-18","opinion_type":"alj","claimant_name":"Alfred Grasso","employer_name":"City Of Fort Smith","title":"GRASSO VS. CITY OF FORT SMITH AWCC# H306460 November 18, 2024","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["shoulder"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/GRASSO_ALFRED_H306460_20241118.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRASSO_ALFRED_H306460_20241118.pdf","text_length":13133,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H306460 \n \nALFRED GRASSO, Employee                                                                       CLAIMANT \n \nCITY OF FORT SMITH, Employer                                                           RESPONDENT \n \nCENTRAL ADJUSTMENT COMPANY, Carrier/TPA                               RESPONDENT                                                                                                    \n \n \n \n OPINION FILED NOVEMBER 18, 2024 \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 DOUGLAS M. CARSON, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October 28, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on September 18, 2024 and a pre-\nhearing  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.     Claimant sustained a compensable injury to his left shoulder on September \n5, 2023. \n 3.     Respondent  has accepted and is paying permanent partial disability benefits \nbased on a 2% rating to the body as a whole. \n\nGrasso – H306460 \n \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Claimant’s entitlement to an attorney fee on the 2% impairment rating. \n The claimant contends that the respondent controverted this claim in its entirety \nand that therefore all indemnity benefits in this case have been controverted.  Claimant \ncontends that his attorney is entitled to a fee regarding the permanent partial disability \nbenefits in this case. \n The  respondent’s contentions are set forth in its pre-hearing questionnaire which \nis attached to Commission Exhibit #1 as Exhibit #1.\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 witnesses and to observe their demeanor, the following findings of \nfact 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 \nconducted on September 18, 2024 and contained in a pre-hearing order filed that same \ndate are hereby accepted as fact. \n 2. Respondent  has  controverted  this  claim;  therefore,  claimant’s  attorney  is \nentitled to an attorney fee on the 2% impairment rating. \n \n FACTUAL BACKGROUND \n  On September 5, 2023, claimant was employed by respondent as a roll-off \ndriver.    Claimant  testified  that  while  he  was  attaching  a  hook  to  a  trash  compactor  he \nsuffered an injury to his left shoulder.  At some point the claimant reported this injury to \n\nGrasso – H306460 \n \n3 \n \nhis  supervisor  and  eventually  sought  medical  treatment.    Claimant’s  initial  medical \ntreatment consisted of an injection; the use of a shoulder mobilizer; and physical therapy. \n Claimant  was  informed  by  respondent  that  his  claim  was  not  accepted  as \ncompensable.    As  a  result,  claimant  hired  Attorney  Walker  who  filed  a  Form  AR-C on \nclaimant’s behalf and requested a hearing.   \n Prior  to  a  hearing  being  scheduled,  claimant  underwent  an  MRI  scan  which \nrevealed a full thickness or near full-thickness rim rent tear of the supraspinatus tendon.  \nUpon receipt of this MRI scan respondent accepted claimant’s injury as compensable and \npaid  for  medical  treatment  as  well  as  temporary  total  disability  benefits.    In  addition, \nrespondent also paid claimant’s attorney a fee on the disputed temporary total disability \nbenefits. \n Claimant eventually underwent surgery on his left shoulder and was assigned a \n2% impairment rating.  Respondent accepted and paid this impairment rating, but did not \npay claimant’s attorney a fee on the rating.   \n Claimant has filed this claim contending that his attorney is entitled to an attorney \nfee on the 2% impairment rating. \n \nADJUDICATION \n As previously noted, claimant initially contended that he suffered a compensable \ninjury to his left shoulder on September 5, 2023.  On September 27, 2023, claimant signed \nForm AR-N stating that he had injured his left shoulder on September 4, 2023 (the actual \ndate  of  injury  was  September 5,  2023  since September 4,  2023  was  Labor  Day)  while \ninstalling a hook onto a compactor box.  Claimant also indicated that he had informed his \n\nGrasso – H306460 \n \n4 \n \nemployer of this injury on September 19, 2023.  During this period of time while claimant \nwas  receiving  medical  treatment  he  was  informed  by  the  respondent  that  it  was  not \naccepting claimant’s injury as compensable.  As a result, claimant hired Attorney Walker \nto represent him. \n In  a  letter  dated  October  26, 2023  from Attorney Walker to the  Commission,  he \nfiled  Form  AR-C  alleging  an  injury  to  the  left  shoulder  and  requesting  a  hearing  on \ncompensation  benefits.    On  that  same  day  Attorney  Walker  also  filed  a  pre-hearing \nquestionnaire  alleging  a  compensable  injury  and  requesting  payment  of  compensation \nbenefits.  On November 17, 2023, a pre-hearing conference was scheduled for December \n6,  2023.    In  response  to  claimant’s  pre-hearing  questionnaire,  respondent  filed  a  pre-\nhearing questionnaire alleging that claimant had failed to prove by a preponderance of \nthe  evidence  that  he  suffered  a  compensable  injury  to  his  left  shoulder  on  or  about \nSeptember 5, 2023.    \n Prior  to  the  pre-hearing  conference  being  conducted,  claimant  underwent  the \naforementioned MRI scan and respondent decided to accept this claim as compensable.  \nRespondent  paid  claimant  temporary  total  disability  benefits  from  September  25,  2023 \nthrough December 12, 2023 and paid Attorney Walker an attorney fee on those benefits.  \nIn  addition,  respondent  filed an amended  AR-2  accepting  the  claim  based  on  new \ninformation received. \nInitially, respondent contends that the Commission rules allow a respondent to file \nan amended AR-2 with respect to the acceptance of a claim.  While the Commission rules \ndo allow a respondent to file an amended Form AR-2, the mere filing of an amended AR-\n2 is  not controlling  as to  the  issue  of  whether  respondent  controverted  claimant’s \n\nGrasso – H306460 \n \n5 \n \nentitlement to compensation benefits. \n Here, respondent clearly controverted the compensability of claimant’s injury.  As \na result, it was necessary for him to hire an attorney who in turn requested a hearing.  It \nwas  only  after  a  pre-hearing  conference  was  scheduled  on  this  request  that  claimant \nunderwent an MRI scan and based upon those MRI results respondent chose to accept \nthe claim as compensable. \n At the hearing there was much testimony submitted by the respondent with respect \nto why it chose not to initially accept the claim as compensable.  However justified the \nrespondent might have been in deciding to deny compensability at that point in time, the \nrespondent  did  in  fact  deny  compensability  of  claimant’s  claim  which  resulted  in  the \nnecessity  of  him  hiring  an  attorney.    Even  the  respondent  acknowledged  that  it \ncontroverted claimant’s entitlement to compensation benefits by paying the attorney fee \non the temporary total disability benefits. \n Respondent also notes that at the time of the original hearing request claimant did \nnot  request  permanent  partial  disability benefits;  therefore,  those  benefits could not be \ncontroverted.    However,  at  the  time  of  the  original  filing  a  claim  for  permanent  partial \ndisability benefits would have been premature since claimant had not undergone surgery \nand had not been assigned an impairment rating. \n Finally,  respondent  contends  that  because  there  was  no “award” of  permanent \npartial disability benefits in this case, an attorney fee is not appropriate pursuant to A.C.A. \n§11-9-704.    However,  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 S.W. \n\nGrasso – H306460 \n \n6 \n \n3d  835  (2001).    In Brown,  the  respondent  initially  accepted  a  claim  and  paid  some \ncompensation benefits.  However, at a pre-hearing 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 benefits.  \nHowever,  it  refused  to  pay  an  attorney  fee  on  the  temporary  partial  disability.    The \nArkansas Court of Appeals affirmed the Commission’s decision to award an attorney fee.  \nIn doing so, the Court stated: \n  The Commission interpreted the requirements of  \n  §11-9-715(a)(2)(B)(ii) to be that where an employer \n  controverts an injured employee’s entitlement to \n  certain benefits, but later accepts liability prior to \n  a  hearing on the merits, the employee’s attorney \n  may still request a hearing for an attorney’s fee on \n  those controverted benefits.  The Commission found \n  that when there is no dispute that the employer  \n  controverted benefits but then paid the benefits on \n  which an attorney fee is sought, that the employee \n  has established an award of those benefits for \n  purposes of the employee’s attorney seeking an \n  attorney’s fee under Ark. Code Ann. §11-9-715(a) \n  (2)(B)(ii).  The Commission found no requirement \n  in  §11-9-715(a)(2)(B)(ii) requiring that an award of \n  controverted benefits must precede the employer’s \n  payment of benefits for the claimant’s attorney to be \n  entitled to a fee.  We agree and hold that the \n  Commission’s findings are supported by substantial \n  evidence. \n \n \n The  Court  went  on  to  state  that  it  had  long  been  recognized  that  making  an \nemployer  liable  for  an  attorney  fee  serves  a legitimate social  purpose  such  as \ndiscouraging oppressive delay in recognition of liability, deterring arbitrary or capricious \ndenial of claims, and ensuring the ability of claimants to obtain adequate and competent \n\nGrasso – H306460 \n \n7 \n \nlegal representation.  If the fundamental purpose of an attorney’s fee is to be achieved, it \nmust be considered that the real object is to place the burden of litigation expenses upon \nthe party which made it necessary.  Cleek v. Great Southern Metals, 335 Ark. 342, 918 \nS.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 \npartial  disability  benefits  would  not  have  been  properly  presented  and  protected.  \nLikewise, in this case, if claimant had not employed counsel to assist him in establishing \ncompensability  of  his  injury,  he  would  have  never  been  entitled  to permanent  partial \ndisability benefits. \n Respondent acknowledged that it did not request additional time to investigate the \nclaim and that respondent did not inform claimant that it was investigating the claim and \nif it obtained additional information his claim would be reconsidered.  Instead, claimant \nwas  simply  informed  by  the  respondent  that  this  claim  was  not  being  accepted  as \ncompensable.    As  a  result,  claimant  received  no  temporary  total  disability  benefits  but \ninstead was required to take leave in order to obtain income.  Claimant was thus required \nto  obtain  counsel  to  pursue  his  claim  of  compensability  and  workers’ compensation \nbenefits. \n Based  upon  the  decision  in Brown and all  of  the evidence  presented,  I find  that \nclaimant’s attorney is entitled to an attorney fee on the 2% permanent impairment rating \nassigned to claimant for his compensable injury. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \n\nGrasso – H306460 \n \n8 \n \nhis attorney is entitled to an attorney fee on the 2% permanent partial impairment rating \npaid to claimant as a result of his left shoulder surgery. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $437.95. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306460 ALFRED GRASSO, Employee CLAIMANT CITY OF FORT SMITH, Employer RESPONDENT CENTRAL ADJUSTMENT COMPANY, Carrier/TPA RESPONDENT OPINION FILED NOVEMBER 18, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, A...","fetched_at":"2026-05-19T22:46:27.968Z","links":{"html":"/opinions/alj-H306460-2024-11-18","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/GRASSO_ALFRED_H306460_20241118.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}