Alfred Grasso vs. City Of Fort Smith

NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H306460 ALFRED GRASSO, EMPLOYEE CLAIMANT CITY OF FORT SMITH, EMPLOYER RESPONDENT CENTRAL ADJUSTMENT COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 22, 2025 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas. Respondents represented by the HONORABLE DOUGLAS M. CARSON, Attorney at Law, Fort Smith, Arkansas. Decision of Administrative Law Judge: Affirmed and Adopted. OPINION AND ORDER Respondents appeal an opinion and order of the Administrative Law Judge filed November 18, 2024. In said order, the Administrative Law Judge made the following findings of fact and conclusions of law: 1. The stipulations agreed to by the parties at a pre-hearing conference conducted on September 18, 2024 and contained in a pre-hearing order filed that same date are hereby accepted as fact. 2. Respondent has controverted this claim; therefore, claimant’s attorney is entitled to an attorney fee on the 2% impairment rating.

GRASSO - H306460 2 We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge's decision is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that the findings made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission. We therefore affirm the decision of the Administrative Law Judge, including all findings of fact and conclusions of law therein, and adopt the opinion as the decision of the Full Commission on appeal. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 2012). For prevailing on this appeal before the Full Commission, claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(a)(Repl. 2012). For prevailing on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. 2012).

GRASSO - H306460 3 IT IS SO ORDERED. _____________________ SCOTTY DALE DOUTHIT, Chairman _____________________ M. SCOTT WILLHITE, Commissioner Commissioner Mayton dissents. DISSENTING OPINION I must respectfully dissent from the majority’s opinion finding the claimant’s attorney is entitled to a fee on claimant’s 2% impairment rating. The claimant suffered a work-related injury to his left shoulder on September 5, 2023. While the respondents initially controverted the claim, they later amended their response and accepted compensability prior to a hearing being scheduled. The respondents ultimately paid for the claimant’s medical treatment; temporary total disability benefits, as well as an attorney’s fee on those benefits and, a two percent (2%) impairment rating. The respondents did not pay an attorney’s fee on the claimant’s impairment rating. After a hearing on October 28, 2024, an ALJ determined that the claimant is entitled to a fee on claimant’s impairment rating, and the respondents appeal.

GRASSO - H306460 4 In workers’ compensation claims, “[a]ttorney's fees can only be awarded when the statutes specifically authorize them.” Aluminum Co. of America v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982). Pursuant to our Rules, an attorney’s fee “shall be allowed only on the amount of compensation for indemnity benefits controverted and awarded.” Ark. Code Ann. § 11-9-715(a)(2)(B)(ii) (emphasis added). An “award” means a decision of an ALJ or the Commission. Clemons v. Bearden Lumber Co., 240 Ark. 571, 401 S.W.2d 16 (1966). Further, our Rules explicitly allow respondents to amend their position of acceptance or controversion of a claim. AWCC Rule 099.39. In the present case, the ALJ reasoned that the claimant is entitled to an attorney’s fee for PPD benefits because he believed it was necessary for the claimant to hire an attorney to obtain benefits. Although medical treatment and temporary total disability benefits were briefly controverted, the claim was accepted as compensable, and the respondents paid for the medical treatment as well as temporary total disability benefits. In addition, the respondents paid an attorney’s fee on the disputed temporary total disability benefits. There was no award of permanent partial disability benefits, and the respondents amended their position and accepted the 2% PPD rating prior to the issue of PPD benefits even arising. The respondents accepted

GRASSO - H306460 5 compensability before PPD benefits could have been awarded or were considered in any prehearing paperwork, and were not the subject of any hearing, nor was the respondents position amended due to any action by the claimant’s attorney. From the plain language of our Rules, it is clear that the ALJ erred in awarding the claimant’s attorney a fee on an uncontroverted permanent impairment rating. Accordingly, for the reasons set forth above, I must dissent. _____________________ MICHAEL R. MAYTON, Commissioner