JESSE HOPPER (DEC’D), EMPLOYEE CLAIMANT
v.
J.C. FODALE ENERGY SERVICES, LLC, EMPLOYER RESPONDENT #1
And
NEW HAMPSHIRE INS. CO./ AIG CLAIMS, INC., INSURANCE CARRIER/TPA RESPONDENT #1
DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2
CLAIM No. G500564
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
September 24, 2021
Hearing
before Administrative Law Judge James D. Kennedy on the
3rd day of August, 2021, in Little Rock, Pulaski
County, Arkansas.
The
claimant’s estate is represented by George Bailey,
Attorney at Law, of Little Rock, Arkansas.
Respondents #1 are represented by Jarrod Parrish, Attorney at
Law, of Little Rock, Arkansas.
Respondent #2 is represented by David Pake, Attorney at Law,
of Little Rock, Arkansas.
JAMES
D. KENNEDY Administrative Law Judge
STATEMENT
OF THE CASE
A
hearing was conducted on August 3, 2021, after two (2)
prehearing telephone conferences, to determine payments in
regard to attorney fees after the benefit payment threshold
was reached for the Death and Permanent Disability Fund to
take over the payment of benefits.
The
claimant’s stated position is that the estate is
entitled to additional attorney fees from Respondents as
claimed in its prehearing questionnaires and proposed
stipulations that were made part of the record.
Respondents
#1 contend that the claimant is not entitled to additional
attorney fees and that the claim for additional attorney fees
is barred by res judicata and the statute of
limitations.
Respondent
#2 contends the Form AR-C, which was filed on September 4,
2015, made no claim for attorney fees and the
Claimant’s Prehearing Questionnaire alleging
“controversion of the claim in its entirety” was
not sufficiently specific to serve as a claim for attorney
fees. Respondent #2 also raised res judicata and the
statute of limitations. Additionally, Respondent #2 argued
that it was excused from an earlier hearing due to the fact
neither party contended the Trust Fund controverted the
claim.
A
second prehearing conference was conducted on June 28, 2021,
and a Prehearing Order was filed in this matter on June 29,
2021. The second prehearing conference was a continuation of
the original prehearing conference, which had to be continued
due to time limitations. A copy of the Prehearing Order is
marked
“Commissions
Exhibit 1” and made part of the record without
objection. It is stipulated that the Arkansas Workers’
Compensation Commission has jurisdiction of the claim and
that an employer-employee relationship existed on December 7,
2014, the date of the fatal car wreck. The claimant’s
estate was previously found to have satisfied its burden of
proof by a preponderance of evidence that the
claimant’s work-related death on December 7, 2014, was
compensable, which was confirmed by the Full Commission. The
Full Commission Opinion dated June 14, 2018, adopted the
decision of the Administrative Law Judge, and consequently
the Administrative Law Judge Opinion and the Commission
Opinion constitutes the law of the case.
Additionally,
the claimant’s multiple responses, including amended
responses to the Prehearing Questionnaire, were admitted into
the record without objection. Both Respondents’
responses to the Prehearing Questionnaire were also admitted
to the record without objection.
The
claimant’s Exhibit One, which included the
claimant’s brief and an outline of the claimant’s
contentions, were admitted into the record without objection.
The parties were instructed to submit briefs simultaneously
fourteen (14) days post-hearing. Respondent’s briefs
were blue-backed and made a part of this opinion. In
addition, Respondent’s #2 submitted documents were
admitted into the record without objection.
No
witnesses testified, and the hearing consisted solely of oral
argument in regard to the parties’ respective positions
on the issue of attorney fees. From a review of the record to
include the documentary evidence and other matters properly
before the Commission, and having had an opportunity to hear
the arguments of the attorneys and to review the submitted
briefs, the following findings of fact and conclusions of law
are made in accordance with Ark. Code Ann. § 11-9-704.
FINDINGS...