Harvest Foods v. Washam

HARVEST FOODS and St. Paul Fire and Marine
Insurance Co. v. Alan WASHAM

CA 95-188                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 14, 1996


1.   Workers' compensation -- Commission's finding of temporary
     total disability -- standard of review. -- Where appellants
     argued that the Workers' Compensation Commission erred in
     finding that appellee had been temporarily totally disabled,
     the appellate court's review was limited to determining
     whether the Commission correctly decided the case within the
     meaning of the term "healing period" and whether there was
     substantial evidence to support the result reached by the
     Commission; the duty of the appellate court is to review
     questions of law only; it may modify, reverse, remand for
     rehearing, or set aside the order or award of the Commission
     only upon the grounds that the Commission acted without or in
     excess of its powers, the order or award was procured by
     fraud, the facts found by the Commission did not support the
     order or award, or the order or award was not supported by
     substantial evidence.

2.   Workers' compensation -- substantial evidence defined --
     considerations on review. -- Substantial evidence is that
     relevant evidence which a reasonable mind might accept as
     adequate to support a conclusion; the issue is not whether the
     appellate court might have reached a different result from
     that reached by the Commission, or whether the evidence would
     have supported a contrary finding; if reasonable minds could
     reach the result shown by the Commission's decision, the
     appellate court must affirm the decision.

3.   Workers' compensation -- healing period defined -- factual
     determination to be made by Commission. -- Arkansas Code
     Annotated  11-9-102(13) (Supp. 1995) defines "healing period"
     as that period for healing of an injury resulting from an
     accident; the healing period continues until the employee is
     as far restored as the permanent character of his injury will
     permit; if the underlying condition causing the disability has
     become stable, and if nothing in the way of treatment will
     improve that condition, the healing period has ended; the
     determination when the healing period has ended is a factual
     determination that is to be made by the Commission; if that
     determination is supported by substantial evidence, it must be
     affirmed on appeal.

4.   Workers' compensation -- healing period -- substantial
     evidence that appellee had not reached end of. -- Where there
     was evidence before the Commission to support the conclusion
     that the appellee's back condition would benefit from further
     treatment that appellants refused to provide, and where the
     Commission concluded that this evidence demonstrated that the
     appellee had not reached the end of his healing period, the
     appellate court found no error in the determination under the
     substantial-evidence standard of review.

5.   Workers' compensation  -- challenge to award of benefits not
     reviewd because decision was res judicata -- notice of appeal
     from order must be filed within thirty days. -- Where
     appellants argued that the Commission erred by finding in its
     April 2, 1993, opinion that appellee remained entitled to
     temporary total disability benefits from June 8, 1992, to a
     date yet to be determined, the appellate court did not review
     the challenge because the Commission's decision was res
     judicata; appellants did not appeal the award within the time
     required by Ark. Code Ann. 11-9-711(b)(1), which states that
     a Workers' Compensation Commission award shall become final
     unless appealed within thirty days from its receipt.

6.   Workers' compensation -- failure to begin paying benefits
     within statutory period gives rise to twenty-percent penalty -
     - appellants offered no proof that payments were made. --
     Arkansas Code Annotated 11-9-802 (c) provides for a twenty-
     percent penalty on disability installments unpaid more than
     fifteen days after becoming due; failure to begin paying
     benefits within the statutory period gives rise to the twenty-
     percent penalty laid out in the statute; because appellants
     offered no proof that the payments were made, the appellate
     court declared that their argument against imposition of the
     penalty was without merit.

7.   Workers' compensation -- indemnity benefits for temporary
     disability -- public-policy considerations. -- Indemnity
     benefits for temporary disability serve a vital purpose within
     the overall scheme of worker's compensation legislation by
     providing subsistence income to an injured worker who is
     incapacitated and healing from a compensable injury; by
     providing the injured worker with a reasonable percentage of
     the average weekly wage as an indemnity benefit during the
     time of temporary incapacity in compensable cases, the
     workers' compensation scheme worked to right a social wrong.

8.   Workers' compensation -- controversion -- attorney's fees --
     public-policy considerations. -- Where 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;
     direct proof of controversion is where the appellee must incur
     legal expenses to defend his disability benefits award on
     appeal; 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.

9.   Workers' compensation -- imposition of statutory penalty for
     nonpayment and award of attorney's fees not erroneous. --
     Where there was undisputed proof of appellants' nonpayment of
     appellee's award and plain proof thatappellee had been forced
     to relitigate his entitlement to temporary total disability
     benefits, the appellate court held that imposition of the
     twenty-percent statutory penalty for non-payment and the award
     of attorney's fees was not erroneous.


     Appeal from Workers' Compensation Commission; affirmed.
     Anderson & Kilpatrick, by: Joseph E. Kilpatrick, Jr., and
Frances E. Scroggins, for appellants.
     The Whetstone Law Firm. P.A., by: Robert H. Montgomery, for
appellee.

     Wendell L. Griffen, Judge.*ADVREP*CA4*               DIVISION II





                                   CA 95-188

                                                February 14, 1996


HARVEST FOODS AND ST. PAUL         AN APPEAL FROM WORKERS'        
FIRE AND MARINE INSURANCE CO.      COMPENSATION COMMISSION
                  APPELLANTS       NO. E209976

V.                                 

ALAN WASHAM
                  APPELLEE         AFFIRMED





                   Wendell L. Griffen, Judge.

    Harvest Foods and St. Paul Fire and Marine Insurance Company,
its workers' compensation insurance carrier, have appealed the
January 11, 1995, decision by the Workers' Compensation Commission
that upheld an award of temporary total disability benefits to Alan
Washam for the period beginning June 8, 1992, and continuing "to a
date yet to be determined."  Appellants argue that there is no
substantial evidence to support a finding that appellee remained in
his healing period after May 4, 1993, so as to be entitled to
continued temporary total disability benefits.  They also challenge
the Commission's decision awarding Washam a second maximum
attorney's fee for the temporary total benefits, as well as the
decision to impose the twenty-percent penalty prescribed by Ark.
Code Ann. 11-9-802(c) (Supp. 1995), because they failed to pay the
temporary total disability benefits that the Commission originally
awarded on April 2, 1993, when it affirmed and adopted the December
18, 1992, decision of the administrative law judge.  After
reviewing the evidence according to the substantial evidence
standard that applies to workers' compensation appeals,  we
conclude that the Commission's decision concerning the appellee's
entitlement to temporary total disability benefits is supported by
substantial evidence.   We also conclude that the Commission
properly imposed the twenty-percent penalty prescribed by the
statute, and that it made the correct decision in making a second
award of maximum attorney's fees to the appellee when the
appellants continued to challenge his entitlement to temporary
total disability benefits that had been previously awarded. 
Therefore, we affirm.
    This workers' compensation claim was initially controverted on
the appellee's claim that he sustained a compensable injury on or
about June 5, 1992, when he lifted a box of bleach while working as
a warehouseman for the appellant employer, Harvest Foods.  An
administrative law judge heard evidence on the compensability
allegation, and rendered a decision on December 18, 1992, in which
appellee was awarded temporary total disability benefits for  his
compensable back injury from June 8, 1992, "to a date yet to be
determined," plus the cost of reasonably necessary medical
treatment and attorney's fees.  Appellants appealed that award to
the Full Commission, and the April 2, 1993, decision affirming and
adopting the award rendered by the administrative law judge
resulted.  In their appeal to the Full Commission, appellants
specifically challenged the award of temporary total disability
benefits from June 8, 1992,  to a future date to be determined. 
Appellants neither appealed the Commission's April 2, 1993,
decision awarding the benefits nor paid the benefits.  Therefore,
appellee obtained a second hearing on January 11, 1994, to address
the unpaid benefits that were awarded plus the twenty-percent
penalty prescribed by Ark. Code Ann. 11-9-802(c), medical
benefits, and attorney's fees.  The administrative law judge ruled
that appellee remained in his healing period based on the testimony
of Dr. F. Richard Jordan, the attending neurosurgeon, and imposed
the twenty-percent penalty.  Appellants appealed a second time to
the Commission, arguing that appellee was not still in his healing
period so as to be entitled to continued temporary total disability
benefits.  They also contend that they were not liable for the
twenty-percent penalty because the original award of benefits to a
date yet to be determined was not an award, and that appellee was
not entitled to a second award of attorney's fees.  The Commission
rejected appellants' arguments on all fronts, and this appeal
followed.
    We first address appellants' argument that the Commission
committed error by ruling that appellee has been temporarily
totally disabled since June 8, 1992.  This argument requires us to
review the record to determine (a) whether there is substantial
evidence to support the Commission's determination that appellee
has not reached the end of his healing period as that term is
defined at Ark. Code Ann. 11-9-102(13) (Supp. 1995), and, if so,
then (b) whether there is substantial evidence to support the
Commission's determination that appellee is totally incapacitated
from earning wages on account of the compensable injury pursuant to
the standard enunciated in Arkansas State Highway and
Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  Our review is limited first to determining whether the
Commission correctly decided this case within the meaning of the
term "healing period," and then to determining whether there is
substantial evidence to support the result reached by the
Commission.  It is established Arkansas law that on appellate
review, the duty of our court is to review questions of law only. 
We may modify, reverse, remand for rehearing, or set aside the
order or award of the Commission only upon the grounds stated at
Ark. Code Ann. 11-9-711(b)(4) (1987), which states:

         The court shall review only questions of law and may
    modify, reverse, remand for rehearing, or set aside the order
    or award, upon any of the following grounds, and no other:

         (A) That the commission acted without or in excess of its
         powers;

         (B) That the order or award was procured by fraud;

         (C) That the facts found by the commission do not support
         the order or award;

         (D) That the order or award was not supported by
         substantial evidence of record.

    Substantial evidence is that relevant evidence which a
reasonable mind might accept as adequate to support a conclusion. 
Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). 
The issue is not whether this Court might have reached a different
result from that reached by the Commission, or whether the evidence
would have supported a contrary finding.  If reasonable minds could
reach the result shown by the Commission's decision, we must affirm
the decision.  Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850
(1995).  
    Arkansas Code Annotated  11-9-102(13) (Supp. 1995) defines
"healing period" as that period for healing of an injury resulting
from an accident.  In Mad Butcher, Inc. v. Parker, 4 Ark. App. 124,
628 S.W.2d 582 (1982), our court observed that the healing period
continues until the employee is as far restored as the permanent
character of his injury will permit, and we added that, "...if the
underlying condition causing the disability has become stable and
if nothing ... in the way of treatment will improve that condition,
the healing period has ended. ... The determination when the
healing period has ended is a factual determination that is to be
made by the Commission.  If that determination is supported by
substantial evidence, it must be affirmed on appeal."  Id. at 4
Ark. App. 131-132, citations omitted.
      In this case, the appellee suffered a back injury that his
attending doctor diagnosed as spondylolysis (a fracture of the pars
interarticularis or bridging bone between the vertebrae), and
spondylolisthesis (defined as slippage in alignment of the
vertebrae which can occur when the pars interarticularis is
fractured).  Dr. Jordan, the attending neurosurgeon, testified that
appellee needed a spinal fusion to correct the injury, but that he
would not be a suitable candidate for the surgery until he stopped
smoking.  It is undisputed that appellee did not stop smoking, and
appellants emphasize this point in arguing that the healing period
had ended and appellee's condition had improved as much as it was
going to improve on or before May 4, 1993.  The Commission was
certainly entitled to agree; yet, it was also entitled to agree,
based upon the evidence before it, that appellee's condition would
be improved by additional treatment.  Specifically, the Commission
received evidence that appellants refused to provide recommended
medical treatment and services to appellee.  Dr. Jordan indicated
in his September 13, 1993, report to counsel for appellee that
approval to obtain a polypropylene body jacket prior to surgery was
still pending, and it does not appear that appellants gave that
approval despite Dr. Jordan's uncontradicted opinion that appellee
benefitted by wearing a back brace that had been prescribed.  In
short, there was evidence before the Commission to support the
conclusion that the appellee's back condition would benefit from
further treatment (back surgery and/or the body jacket) that
appellants refused to provide.  The Commission concluded that this
evidence demonstrated that the appellee had not reached the end of
his healing period.  Under our substantial evidence standard of
review, we find no error in that determination.
    Appellants also argue that the Commission erred by finding that
the appellee remained entitled to temporary total disability
benefits from June 8, 1992, to a date yet to be determined.
The Commission made this determination in its April 2, 1993,
opinion.  Appellants did not appeal that award within thirty days
as required by Ark. Code Ann. 11-9-711(b)(1), which states that a
Workers' Compensation Commission award shall become final unless
appealed within thirty days from its receipt.  We, therefore, do
not review the challenge to the award of benefits from June 8,
1992, to a date yet to be determined because that decision by the
Commission is res judicata.  See Tuberville v. International Paper
Co., 18 Ark. App. 210, 711 S.W.2d 840 (1986).
    Appellants challenge the twenty-percent penalty and award of
a second attorney's fee for controversion, and assert that because
they were unsure when and how to pay the temporary total disability
benefits awarded to a "date to be determined," they cannot be
deemed to have failed to pay the award.  This argument is
unpersuasive for several reasons.  First, the Commission clearly
awarded temporary total disability benefits to the appellee at the
rate of $241.93 per week from June 8, 1992, to a date yet to be
determined, and appellants were ordered to comply with the award
made by the administrative law judge which the Commission adopted
and affirmed in its April 2, 1993, decision.   Appellants took no
appeal.  There is nothing in the record to support appellants'
argument that they did not understand the award when it was
rendered or at any other time.  The record is clear, however, that
appellants have paid none of the temporary total disability
benefits that were awarded more than two years ago.  Arkansas Code
Annotated 11-9-802 (c) provides for a twenty-percent penalty on
disability installments unpaid more than fifteen days after
becoming due.  We have long held that failure to begin paying
benefits within the statutory period gives rise to the twenty-
percent penalty laid out in the statute.   Smith's Store v. Kirker,
6 Ark. App. 222, 639 S.W.2d 751 (1982); Ark. Hwy. And Transp. Dept.
v. Godwin, 270 Ark. 743 (Ark. App. 1980), 606 S.W.2d 127 (1980);
Mohawk Tire & Rubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126
(1976).  Because appellants offer no proof that the payments were 
made, their argument against imposition of the penalty is without
merit.
    Indemnity benefits for temporary disability serve a vital
purpose within the overall scheme of worker's compensation
legislation by providing subsistence income to an injured worker
who is incapacitated and healing from a compensable injury.  Before
the advent of workers' compensation, an injured worker had to prove
that an injury was caused by the employment and resulted from fault
by the employer but through no fault of the worker, a co-worker, or
third party.   Also, the worker had to go without income in the
meantime.    By providing the injured worker with a reasonable
percentage of the average weekly wage as an indemnity benefit
during the time of temporary incapacity in compensable cases, the
workers' compensation scheme worked to right a social wrong.  
    In this case, appellee had to litigate the compensability of
the June 1992 injury before he was initially determined entitled to
temporary total benefits in December 1992.  He then litigated the
case before the Full Commission which affirmed and adopted the
original award in its April 2, 1993, decision, nearly ten months
after the injury occurred.  Appellants never appealed the award,
but refused to pay it in flagrant violation of the statute. 
Moreover, they did not claim that the appellee had ended his
healing period until he obtained the January 11, 1994, hearing
before the law judge concerning the unpaid benefits.  If any case
warranted the statutory penalty imposed by the Commission, this one
does. 
     The appellee was forced, in the second round of litigation,
to again demonstrate to the Commission that he is entitled to
temporary total disability benefits.  A maxim of worker's
compensation law is that 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.  Arkansas Code Annotated 11-9-715 (b)
(Supp. 1995),  Tyson Foods, Inc. v. Fatherree, 16 Ark. App. 41, 696 S.W.2d 782 (1985).  Direct proof of controversion is where the
appellee must incur legal expenses to defend his disability
benefits award on appeal.  See Aluminum Co. of America v. Henning,
260 Ark. 699, 543 S.W.2d 480 (1976); Cagle Fabricating & Steel,
Inc. v. Patterson, 43 Ark. App. 79, 861 S.W.2d 114, (1993).  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.  Prier Brass v. Weller, 23 Ark. App.
193, 745 S.W.2d 647 (1988).  In this second round of litigation, 
appellants seek relief from this court after refusing for months to
pay the award that they refused to appeal on the merits.   
     The temporary total disability award was adopted by the
Commission on April 2, 1993, and would have been payable no later
than fifteen days after it had become final (thirty days from the
date it was received).  When the parties appeared before the
Commission on January 11, 1995, twenty-one months later, appellants
had not paid any part of the award.  They apparently continue to
refuse to pay any part of the award some thirty-two months after it
was issued.  The Commission had, therefore, ample justification for
imposing the statutory penalty and attorney's fees where there was
uncontradicted proof that the appellants had failed to make any
payment for more than twenty-one months after it was rendered. 
Given the undisputed proof of nonpayment and the plain proof  that
the appellee has been forced to re-litigate his entitlement to
temporary total disability benefits, imposition of the twenty-
percent penalty for non-payment and the award of attorney's fees
was not erroneous under any analysis. 
    Affirmed.
    Cooper and Stroud, JJ., agree.