                                   Cite as 2014 Ark. App. 47

                  ARKANSAS COURT OF APPEALS
                                         DIVISION II
                                        No. CV-13-684


                                                    Opinion Delivered   January 22, 2014
DANNY BURTON
                                APPELLANT           APPEAL FROM THE ARKANSAS
V.                                                  WORKERS’ COMPENSATION
                                                    COMMISSION
CHARTIS CLAIMS, INC., and                           [NO. F613862]
ROBINSON AVIATION, INC.
                        APPELLEES                   AFFIRMED



                          ROBERT J. GLADWIN, Chief Judge

       This appeal follows the July 10, 2013 decision of the Arkansas Workers’ Compensation

Commission (Commission) that affirmed the administrative law judge’s (ALJ’s) March 6, 2013

opinion finding that appellant, Danny Burton, failed to prove by a preponderance of the

evidence that his attorney is entitled to a fee based on all benefits paid by appellees for medical

and indemnity due to their intervention in a third-party civil-court case. Appellant argues

that substantial evidence does not support the Commission’s decision. We affirm.

       Appellant was injured on December 13, 2006, as a result of falling down some stairs

while working as an air traffic controller. He suffered multiple compensable injuries to his

left shoulder and left knee. Earlier attempts at obtaining an anatomical-impairment rating or

wage-loss benefits through a workers’ compensation action were unsuccessful in 2012. On

July 13, 2009, appellant and Jeannette Burton filed a third-party complaint in Benton County

Circuit Court against Nicholas Skipper and Alliance Maintenance, Inc. On November 30,

2009, American International Recovery and Commerce and Industry filed its complaint in
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intervention in that third-party case claiming a statutory lien for indemnity benefits in the

amount of $142,526.59.

       The Burtons settled the third-party case on August 2, 2012. Appellant did not know

at that time how much of the settlement he would receive because of the intervenor’s

assertion of a statutory lien, and as a result, he filed a motion requesting a made-whole hearing

in circuit court on August 6, 2012, to determine if he had been made whole by the

settlement. On August 7, 2012, a made-whole hearing was set by the circuit judge for

September 5, 2012. On August 10, 2012, the intervenor filed a response to the motion for

a made-whole hearing. On August 17, 2012, appellant filed a prehearing questionnaire with

the Commission seeking attorney’s fees based on the statutory lien in his third-party lawsuit.

       On September 4, 2012, the day before the made-whole hearing was scheduled, the

intervenor sent a motion for voluntary nonsuit and order to the circuit judge requesting that

its complaint in intervention be dismissed. The order dismissing the claim was entered on

that same day, and the made-whole hearing set for September 5, 2012, was cancelled.

       A hearing was held on the attorney’s-fee issue on December 4, 2012, before the ALJ.

In his modified order filed March 6, 2013, entered nunc pro tunc after a February 28, 2013

opinion, the ALJ opined that appellant failed to prove by a preponderance of the evidence that

his attorney is entitled to an attorney’s fee on all benefits paid by the intervenor for medical

and indemnity due to the intervention in the third-party civil court case. From that order,

appellant filed a timely notice of appeal to the Commission on March 19, 2013. On July 10,




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2013, the Commission entered an opinion affirming the ALJ’s order. From that opinion,

appellant filed a timely notice of appeal on July 22, 2013.

       Where the sufficiency of the evidence is challenged on appeal, we review the evidence

in the light most favorable to the findings of the Commission and will affirm if those findings

are supported by substantial evidence. Firestone Bldg. Prods. v. Hopson, 2013 Ark. App. 618,

__ S.W.3d __. Substantial evidence is relevant evidence that a reasonable mind might accept

as adequate to support a conclusion. Id. We will not reverse a finding based on the

Commission’s exercising its duty to determine credibility and to interpret conflicting

evidence. Id.

       The applicable statute in this case is Arkansas Code Annotated section 11-9-715 (Repl.

2012), which provides in relevant part:

       (a)(1)(A) Fees for legal services rendered in respect of a claim shall not be valid unless
       approved by the Workers’ Compensation Commission.
               (B) Attorney’s fees shall be twenty-five percent (25%) of compensation for
       indemnity benefits payable to the injured employee or dependents of a deceased
       employee. Attorney’s fees shall not be awarded on medical benefits or services except
       as provided in subdivision (a)(4) of this section.

               (2)(B)(i) In all other cases whenever the Commission finds that a claim has been
       controverted, in whole or in part, the commission shall direct that fees for legal
       services be paid to the attorney for the claimant as follows: One-half (1/2) by the
       employer or carrier in addition to compensation awarded; and one-half (1/2) by the
       injured employee or dependents of a deceased employee out of compensation payable
       to them.
               (ii) The fees shall only be allowed on the amount of compensation for
       indemnity benefits controverted and awarded.
               (iii) However, the commission shall not find a claim has been controverted if
       the claimant or his representative has withheld from the respondent during the period
       of time allotted for the respondent to determine its position any medical information
       in his possession which substantiates the claim.


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              (C)(i) Whenever the commission finds a claim has not been controverted but
       further finds that bona fide legal services have been rendered in respect to the claim,
       then the commission shall direct the payment of the fees by the injured employee or
       dependents of a deceased employee out of the compensation awarded.

       (4) Medical providers may voluntarily contract with the attorney for the claimant to
       recover disputed bills, and the attorney may charge a reasonable fee to the medical
       provider as cost of collection.

Ark. Code Ann. § 11-9-715(a)(1)(A) and (B), (a)(2)(B)(i)-(iii), (a)(2)(C)(i), and (a)(4).

       Appellant asserts that appellees’ intervention amounted to controversion of the claim,

triggering his right to attorney’s fees. See Logan Cnty. v. McDonald, 90 Ark. App. 409, 206

S.W.3d 258 (2005), and Arkansas Code Annotated section 11-9-715(a)(2)(B)(ii). In the

opinion affirmed by the Commission, the ALJ stated that because the third-party lawsuit was

filed and proceeds were paid through the Benton County Circuit Court, the attorney’s fee

occurred outside the jurisdiction of the Commission. Appellant submits that the ALJ’s

opinion fails to address the controversion issue.

       When the Commission finds that a case has been controverted, in whole or in part, the

Commission shall direct the payment of legal fees by the employer or carrier in addition to

the compensation awarded. See Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776

(1996) (citing Ark. Code Ann. § 11-9-715(b)). Direct proof of controversion is where the

claimant must incur legal expenses to defend his disability benefits award on appeal. Id. One

of the purposes of the statute and case law is to put the economic burden of litigation on the

party that makes litigation necessary by controverting the claim. Id.

       Appellant states that the litigation in question occurred in circuit court as a result of

appellees’ intervention in his third-party action asserting their right to subrogation under

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Arkansas Code Annotated section 11-9-410 (Repl. 2012). Appellant acknowledges that this

statute protects both the ability of a workers’-compensation claimant to pursue an action

against a third party for his injury and the right of the employer/carrier to recover certain

amounts paid in compensation to a claimant out of the proceeds of the third-party action.

       Because appellees intervened, a made-whole hearing was scheduled in circuit court.

Appellees filed their lien for $142,526.59 in November 2009. Appellant notes that not until

three years later, on September 4, 2012, the day before the made-whole hearing was set to

occur, did appellees file a motion for nonsuit and waiver of their lien. Appellant claims that

under Arkansas Code Annotated section 11-9-715(a)(2)(B)(ii), which provides that fees shall

be allowed only on the amount of compensation controverted and awarded, his attorney

should be awarded an attorney’s fee because appellees’ assertion of a lien in his third-party case

amounted to a controversion of benefits. He claims that he is not seeking a fee for the work

done on the third-party action, rather on work performed to protect his settlement under the

Act.

       We disagree. Appellant has not proved controversion; accordingly, an attorney’s-fee

award is not appropriate. The applicable statute provides that a fee is only payable from the

employer or carrier if benefits are controverted and awarded, which has not occurred in this

case. Further, the statute makes clear that an attorney’s fee cannot be obtained on medical

benefits except in the situation where an appellant’s counsel contracted with the provider to

recover disputed bills, which likewise has not occurred.




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         We decline to hold that appellees’ mere filing of the intervention amounts to

controversion, and distinguish McDonald, supra, where the attorney prevailed on the issue of

wage-loss benefits before the Commission. Further, the attorney in McDonald obtained a

finding that his client was not made whole with a third-party settlement; the attorney in this

case has not done so. Instead, appellees waived their lien and allowed appellant to profit from

the third-party case settlement without ever going to a hearing for a determination on the

issue.

         Further, the evidence before us indicates that appellant’s counsel withheld information

necessary for appellees’ counsel to fully advise them on the made-whole issue. Immediately

after being notified of the settlement in appellant’s third-party case, appellees’ counsel asked

on multiple occasions on August 6, 9, 15, and 20, 2012, for a breakdown of the settlement

as required to come to a determination on the made-whole issue. That information was not

provided until November 19, 2012, more than two months after appellees had already waived

their statutory lien when they non-suited their complaint in intervention on September 4,

2012. It is undisputed that appellant’s counsel never litigated the issue of whether his client

was made whole and never presented the issue other than in the workers’-compensation

forum, and no determination has been made as to whether the third-party settlement made

appellant whole. Appellant’s counsel was provided assistance by appellees’ adjuster to prepare

his case, yet delayed providing necessary information in return regarding the settlement.

         As we indicated in Lambert v. Baldor Electric, 44 Ark. App. 117, 868 S.W.2d 513 (1993),

settlement negotiations should be encouraged to avoid needless litigation. We decline to hold


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that the benefits paid in this workers’-compensation claim were controverted simply because

an intervention was filed.

       The Commission determined that appellant failed to prove by a preponderance of the

evidence that his attorney is entitled to an attorney’s fee as part of the action before it because

he did not prove his client’s entitlement to benefits upon which a fee would be due in the

workers’-compensation forum. We affirm.

       Affirmed.

       WOOD and BROWN, JJ., agree.

       Osborne Law Firm, by: Ken Osborne, for appellant.

       Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellees.




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