2014 Ark. App. 47
Ark. Ct. App.2014Background
- Danny Burton injured on December 13, 2006 (workplace fall); suffered compensable left shoulder and knee injuries. Earlier comp proceedings for impairment/wage-loss were unsuccessful.
- Burton and his wife filed a third‑party tort suit in Benton County in July 2009; the workers’ compensation carrier (intervenor) filed an intervention asserting a statutory lien for indemnity benefits (~$142,526.59) in November 2009.
- The third‑party case settled on August 2, 2012; Burton requested a made‑whole hearing in circuit court because the carrier’s lien could reduce his recovery. A made‑whole hearing was scheduled for September 5, 2012.
- On September 4, 2012 (day before the hearing), the intervenor filed a voluntary nonsuit and waived/dismissed its intervention; the made‑whole hearing was canceled.
- Burton sought attorney’s fees before the Workers’ Compensation Commission under Ark. Code Ann. § 11‑9‑715, arguing the carrier’s intervention/claim of lien controverted benefits and thus triggered an awardable fee; the ALJ and Commission rejected the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the carrier’s intervention/lien in the third‑party case constituted a controversion of compensation that entitles Burton’s attorney to fees under Ark. Code Ann. § 11‑9‑715 | The carrier’s assertion of a statutory lien and intervention in the third‑party action controverted Burton’s compensation, so fees (25%/controverted amount rules) are due for work protecting the workers’‑compensation settlement | Intervention in circuit court does not automatically equal controversion in the workers’‑compensation forum; no controversion/award of benefits occurred and no fee-eligible medical recovery was pursued | The Commission affirmed: no controversion proven; fee not warranted. The carrier’s nonsuit and waiver precluded a finding of controversion and no made‑whole determination was obtained |
Key Cases Cited
- Logan Cnty. v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (Ark. Ct. App. 2005) (contrasted facts where counsel obtained a made‑whole finding and fee on controverted benefits)
- Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (Ark. Ct. App. 1996) (statute places litigation burden on party who controverts claim; direct proof of controversion defined)
- Lambert v. Baldor Electric, 44 Ark. App. 117, 868 S.W.2d 513 (Ark. Ct. App. 1993) (policy favoring settlement to avoid needless litigation)