# Kimberly Taylor v. Hino Motors Manufacturing U.S.A., Inc.; And Sompo American Insurance Co.

> Court of Appeals of Arkansas · September 3, 2025 · 2025 Ark. App. 405

URL: https://www.frixlaw.com/law-library/cases/11131908

## Case

- **Court:** Court of Appeals of Arkansas
- **Decided:** September 3, 2025
- **Citations:** 2025 Ark. App. 405
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11131908

## Opinion text

Cite as 2025 Ark. App. 405
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-24-738

KIMBERLY TAYLOR Opinion Delivered September 3, 2025

APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. H009300]
HINO MOTORS MANUFACTURING
U.S.A., INC.; AND SOMPO AMERICAN
INSURANCE CO.
APPELLEES AFFIRMED

CINDY GRACE THYER, Judge

Kimberly Taylor appeals from an order of the Arkansas Workers’ Compensation

Commission (“the Commission”) finding that she had not sustained a compensable low back

injury, was not entitled to additional temporary total-disability benefits for her compensable

right shoulder injury, and was not entitled to attorney’s fees. We find no error and affirm.

I. Factual and Medical Background

This dispute centers on the nature and extent of injuries Taylor claims she sustained

when she tried to dislodge an axle on a conveyor belt on her third day working for appellee

Hino Motors Manufacturing U.S.A., Inc. (“Hino”). On October 21, 2020, as she was

attempting to pull an axle that had become stuck, Taylor felt “a little pull and sting to her

right upper back.” The pain became worse as she continued to work. After she reported the

incident, she went to see APN Christopher Gross at Coast to Coast Medical. He noted her
chief complaint or concern was “hurt lower right side back pulling on part.” Upon

evaluation, Gross found her tender to palpation to the right upper back and resistant to

evaluation secondary to pain. He diagnosed her with right upper back strain and prescribed

Toradol, ice, and over-the-counter Motrin or Aleve for pain. He then released Taylor to work

the same day with no restrictions.

Taylor returned to APN Gross on November 6, 2020. On that date, Gross repeated

Taylor’s description of the incident––that she felt “a little pull and sting to her right lower

back” and added that when she woke up on October 22, she noticed a pain in her right

shoulder that caused decreased function to that shoulder. Taylor reported that she had been

working that day, but the pain was worse than when the injury occurred. Gross noted that

Taylor was tender to palpation to her right lower back, right upper back, and shoulder and

had limited range of motion in her shoulder. His updated diagnosis reflected “right upper

back strain, right shoulder pain, lower back pain,” and he prescribed physical therapy; heat

to her back and shoulder; and tramadol, Zanaflex, and Motrin. At that time, Gross took

Taylor off work until she was released from physical therapy.

A radiology report from November 6 noted that Taylor had a “normal right shoulder”

with no fractures or dislocations, with normal-appearing soft tissues, and no lesions or

significant arthritic changes identified. Views of her lumbar spine also showed no acute

abnormalities, fractures, or dislocations, although mild arthritic changes were noted.

Taylor began physical therapy on November 19, 2020. Medical records from her first

visit showed that her chief complaint was pain in her right shoulder following an injury to

2
that shoulder at work. Her physical-therapy records, dated from November 19 through

December 15, 2020, reflected treatment for her shoulder only.

On December 28, 2020, APN Gross noted Taylor’s report that she had been going

to physical therapy, and the pain in her shoulder had only been getting worse, while the pain

in her lower back was about the same. Gross reiterated the diagnoses of right upper back

strain, right shoulder pain, and lower back pain and kept Taylor off work until released by

the physical therapist. He prescribed Tylenol-Codeine #3, Zanaflex, and Motrin and ordered

an MRI of her right shoulder.

Taylor underwent an MRI of her shoulder on March 23, 2021. The findings of the

MRI showed that “[t]he AC joint is normal. A trace of fluid and edema is present in the

subacromial bursa compatible with mild bursitis. The tendons of the rotator cuff are intact.

Biceps tendon is intact. Irregularity of the mid to posterior portion of the superior labrum

is compatible with SLAP tear. The labrum is otherwise intact. . . . OPINION: 1. SLAP tear.

2. Mild subacromial bursitis.”1

After the MRI, Taylor saw Gross again on March 25, 2021. She continued to

complain that the pain in her shoulder was worse than when she began treatment, and the

pain in her lower back was now radiating into her right leg. Gross referred her to an

orthopedist and suggested an MRI of her lumbar spine.

1
A SLAP tear, or “Superior Labrum, Anterior to Posterior” tear, is an injury that
happens when a person tears cartilage in the inner part of his or her shoulder joint.
https://my.clevelandclinic.org/health/diseases/21717-slap-tear.

3
Taylor saw Dr. David Brown at OrthoSouth on May 6, 2021. His notes from that visit

reflect the following:

This is a 40 year old female who is being seen for a chief complaint of right
shoulder pain. The pain began on 10/21/20 after she pulled on a piece of equipment
at work that strained her shoulder. She describes a sharp, throbbing pain located
diffusely throughout the shoulder that radiates down the arm. The pain worsens
when getting dressed and with reaching motions. She also complains of swelling.

X-rays of the right shoulder reveal no obvious fractures. Her glenohumeral
joint is reduced. She has a downsloping acromion.

The patient continues to complain of pain over 6 months out from her injury.
She has tried physical therapy, rest, and anti-inflammatories. She describes her pain
as sharp. Her medical records state that she has a possible SLAP tear. I will obtain the
patient’s right shoulder MRI and make further recommendations. In the meantime,
I will give the patient a prescription for diclofenac. She will work on range of motion
exercises. I will see her back once the MRI has been obtained. In the meantime I will
place her on light duty with no use of her right arm restriction.

Taylor followed up with Dr. Brown on May 18, 2021. He noted that “by report, the

patient has a SLAP tear in her right shoulder.” He said he was “concerned about proceeding

with surgery with the patient’s current stiffness.” He gave her a steroid injection, started her

back on physical therapy, said he would see her again in four weeks, and kept her on light-

duty work.

Dr. Brown reviewed the MRI of Taylor’s shoulder in June 2021 and concurred that

it revealed an abnormal signal at the superior labrum along with mild subacromial bursitis;

he recommended continued physical therapy. Taylor saw Dr. Brown again in July, by which

time Taylor had been to only one physical therapy appointment. Taylor advised that there

had been “scheduling and communications issues with Workmen’s Comp.” Dr. Brown was

4
still hesitant to recommend shoulder surgery, although he believed she would benefit from

it. He also stated he thought she would benefit from a second opinion to discuss treatment

options.

After an August 12 follow-up visit, Dr. Brown wrote as follows:

[Taylor] continues to complain of pain and stiffness. Her daughter recently
passed away with Covid. She has not been able to do physical therapy secondary to
her daughter’s situation. I am very hesitant to proceed with any sort of surgery
considering the amount of patient’s stiffness and apprehension with range of motion.
She has evidence of a SLAP tear that occurred in October 2020. I recommend the
patient undergo an independent medical exam with an option to treat via a second
opinion. I will keep her on light duty at work.

Before obtaining the recommended second opinion, Taylor visited her primary care

physician (PCP) on February 7, 2022, complaining of low back pain and problems with her

allergies. At that time, she was diagnosed with allergic rhinitis and lumbago and told to make

a follow-up appointment in two weeks for her back. At that appointment in March 2022,

her chief complaint was dizziness, but that medical record also noted lumbago as an “active

problem.” At that time, she was referred to physical therapy for “low back pain . . . suspect

muscle spasm”; her PCP ordered a lumbosacral x-ray and a prescribed a “trial [of]

cyclobenzaprine” (a muscle relaxant).

Meanwhile, Taylor saw Dr. Charles Pearce on February 28, 2022, for the second

opinion recommended by Dr. Brown. Dr. Pearce acknowledged the SLAP tear visualized by

the MRI but observed “no obvious abnormality to inspection.” He ordered x-rays of her

“surgical” [sic] spine and right shoulder. The x-rays showed “no significant acute abnormality.

There may be slight straightening of her lordotic curve. MRI scan from March 23, 2021, is a

5
noncontrast scan and shows some possible undercutting of her superior labrum that was a

labile slap tear. However this can be a normal finding as well.” Dr. Pearce’s impression was

that of “right shoulder, shoulder girdle, arm pain and weakness not consistent with MRI

finding of slap tear.” He recommended a functional capacity evaluation (FCE) prior to any

further diagnostic testing or treatment.

Taylor underwent the FCE on April 6, 2022. Regarding Taylor’s reliability and

consistency of effort, the examiner wrote that “[c]onsistency of effort testing obtained during

this evaluation indicate significant observational and evidence based inconsistencies

resulting in self-limiting behavior and sub-maximal effort. The results of this evaluation

indicate that an unreliable effort was put forth, with 27 of 52 consistency measures within

expected limits.” Although Taylor’s inconsistencies “invalidated her entire evaluation,” she

demonstrated the ability to perform work in at least the sedentary classification of work.

Following the FCE, Dr. Pearce wrote an addendum to his previous note, finding that

Taylor had reached maximum medical improvement and could return to work duties

without restriction. He stated there was no indication for further diagnostic testing or

treatment, and he concluded that Taylor had sustained a 0 percent permanent partial

impairment to her upper extremity.

Taylor reported that she continued to experience low back pain despite her physical

therapy. In April 2022, her PCP referred her to pain management because she had been

going to physical therapy for a month “without much relief.” Shortly thereafter, she

experienced urinary incontinence during physical therapy, so her doctor ordered an MRI to

6
look for any spinal cord pathology. (The record before us, however, does not contain a report

of any such MRI.)

Taylor began treatment at Pain Treatment Centers of America on October 6, 2022.

She presented “for lower back pain, shoulder pain, mid back pain, hip pain, knee pain, chest

pain, multiple joint pain evaluation and management.” During her physical exam, palpation

of the bilateral sacroiliac joints and bilateral trochanteric bursa palpation failed to reproduce

pain, but palpation of the lumbar facet joints reproduced her lower back pain. Tenderness

was present over her entire shoulder joint area; swelling was absent, but there was crepitus

at the acromioclavicular and glenohumeral joints. Taylor received a suprascapular nerve

block for her shoulder pain on October 24, 2022. After receiving a diagnosis of spondylosis,

Taylor underwent a diagnostic lumbar medial branch block in December 2022 to determine

the source of her back pain “because there [was] a discrepancy between pathology and

complaints.” Taylor continued to undergo various nerve-block procedures for back pain from

late 2022 through February 2023.

II. Procedural Background

The record indicates that Hino initially accepted Taylor’s right shoulder claim as

compensable and paid temporary total-disability (TTD) benefits from November 6, 2020,

through May 12, 2022. However, Hino has consistently controverted the compensability of

Taylor’s alleged back injury.

Following a prehearing telephone conference on July 24, 2023, the administrative law

judge (ALJ) issued a prehearing order outlining what was discussed in the conference,

7
including the stipulations agreed to by the parties and the issues to be litigated at the

subsequent hearing. The ALJ included among the stipulations that Hino “initially accepted

[Taylor’s] alleged right shoulder injury as compensable and paid medical and [TTD] benefits

pursuant thereto; but they have now controverted this claim in its entirety.” The order

further reflected that the issues to be litigated were (1) whether Taylor sustained compensable

injuries by specific incident to her back and right shoulder; (2) whether Taylor was entitled

to reasonable and necessary medical treatment; (3) whether Taylor was entitled to additional

TTD benefits; and (4) whether Taylor was entitled to a controverted attorney’s fee.

At the outset of the October 27, 2023 hearing, Hino sought to amend the stipulation

regarding the shoulder injury, claiming a mistake had been made. Hino proposed that the

stipulation should be modified to read that Hino accepted Taylor’s right shoulder injury as

compensable, that TTD benefits were paid to her up to maximum medical improvement

(MMI), and that Hino was controverting only the compensability of the back injury. Taylor

objected to the amendment or withdrawal of the stipulation because it would have the effect

of reducing the amount of attorney’s fees that could be recovered. The ALJ took Hino’s

request to amend or withdraw the stipulation under advisement and proceeded to hear the

issues originally designated for adjudication.

Following that hearing, the ALJ issued an opinion on January 23, 2024, and an

amended opinion the next day. The ALJ determined that Taylor had proved she sustained a

compensable injury to her right shoulder, but she had not proved she sustained a

compensable injury to her lower back. The ALJ further found that Taylor was entitled to

8
reasonable and necessary medical treatment of her compensable right shoulder injury;

however, the ALJ found she had not proved her entitlement to additional TTD benefits

beyond what Hino had already paid. Finally, after denying Hino’s request to amend or

withdraw its stipulation, the ALJ ruled that Taylor was entitled to a controverted attorney’s

fee on the indemnity benefits previously paid on the shoulder claim.

Taylor appealed the ALJ’s opinion to the full Commission, and Hino cross-appealed.

The Commission affirmed the ALJ’s opinion in part and reversed in part. The Commission

agreed that Taylor had proved she sustained a compensable injury to her right shoulder and

that the medical treatment related to that injury was reasonably necessary. It further agreed

that Taylor failed to prove she sustained a compensable lower back injury or that she was

entitled to additional TTD benefits. It reversed the ALJ’s decision regarding attorney’s fees,

however. Taylor filed a timely notice of appeal and now argues that the Commission erred

in its findings regarding the existence of a compensable low-back injury, her entitlement to

TTD, and the issue of attorney’s fees.

III. Standard of Review

When the Commission denies benefits because the claimant has failed to meet his or

her burden of proof, the substantial-evidence standard of review requires that we affirm if

the Commission’s decision displays a substantial basis for the denial of relief. Osburn v. Pepsi

Cola Metro Bottling Co., 2021 Ark. App. 157, at 6. The issue is not whether the appellate

court might have reached a different result from the Commission but whether reasonable

minds could reach the result found by the Commission; if so, the appellate court must

9
affirm. Id. Credibility questions and the weight to be given to witness testimony are within

the Commission’s exclusive province. Pack v. Little Rock Convention Ctr., 2013 Ark. 186, 427

S.W.3d 586. It is also within the Commission’s province to weigh all the medical evidence

and to determine what is most credible. Minn. Mining & Mfg. v. Baker, 337 Ark. 94, 989

S.W.2d 151 (1999). We have long held that the Commission’s decision to accept or reject

medical opinions and how it resolves conflicting medical evidence has the force and effect

of a jury verdict. Howell v. Arkadelphia Hum. Dev. Ctr., 2023 Ark. App. 441, at 5, 675 S.W.3d

925, 928.

IV. Discussion

A. Compensable Lower Back Injury

In her first point on appeal, Taylor argues that the Commission erred in finding that

she failed to prove that she sustained a compensable injury to her lower back. Taylor, as the

claimant, had the burden of proving by a preponderance of the evidence that she sustained

a compensable injury. Rodriguez v. M. McDaniel Co., 98 Ark. App. 138, 144, 252 S.W.3d 146,

152 (2007). A compensable injury must be established by medical evidence supported by

objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2023). Objective findings are

those that cannot come under the control of the patient, such as complaints of pain or

tenderness. Carter v. GEA N. Am., Inc., 2023 Ark. App. 134, at 6–7, 662 S.W.3d 685, 690;

Ozark Nat. Food v. Pierson, 2012 Ark. App. 133, at 9, 389 S.W.3d 105, 110.

In support of its finding that Taylor failed to prove she sustained a compensable lower

back injury, the Commission referenced the multiple medical records in which Taylor’s

10
complaint was of pain in her lower back. It cited APN Gross’s October 21, 2020 report––

the day of the incident––that Taylor was “tender to palpation” but commented that

“‘tenderness’ is not an objective medical finding establishing a compensable injury.” It

further noted the November 2020 x-ray of Taylor’s lumbar spine that showed “mild arthritic

changes” and “no acute abnormality,” adding that nothing in the evidence connected the

arthritic changes to the October 2020 incident. It also determined that there was no credible

evidence that Taylor suffered from muscle spasms in her back as a result of the incident. On

the basis of these records, the Commission found that Taylor failed to present objective

findings supporting her claim that she sustained a compensable lower back injury.

On appeal, Taylor argues that the Commission ignored medical evidence in reaching

its decision. See, e.g., Sosa v. Kawneer Co., Inc., 2022 Ark. App. 195, 645 S.W.3d 26 (noting

that the Commission may not arbitrarily disregard medical evidence). Taylor contends that

the Commission disregarded evidence that she sustained a lumbar strain, that she

complained of pain to her lower back, and that she was prescribed medications such as anti-

inflammatories and muscle relaxants. Citing Melius v. Chapel Ridge Nursing Center, LLC, 2021

Ark. App. 61, 618 S.W.3d 410, Taylor contends that a diagnosis of muscle strain along with

a prescribed treatment of medications, physical therapy, and pain management is sufficient

to establish objective medical findings. Further, citing Estridge v. Waste Management, 343 Ark.

276, 282, 33 S.W.3d 167, 171 (2000),2 Taylor points to Dr. Pearce’s “finding” of a

2
Estridge held that the straightening of the curve of the spine “is a sign that is normally
associated with muscle spasm in the straightened area.”

11
straightening of her lordotic curve as proof that there were objective medical findings to

support a finding of a compensable injury.

Taylor, however, was never diagnosed with a lumbar strain nor specifically found to

have straightening in the lordotic curve in her lumbar spine. The March 4, 2022 office note

from which she apparently gleans this diagnosis of lumbar strain stated only, “Low back

pain––referral to PT as suspect muscle spasm.” (Emphasis added.) Similarly, Dr. Pearce’s note

stated that “X-rays ordered and interpreted by me surgical [sic][3] spine and right shoulder

show no significant acute abnormality. There may be slight straightening of her lordotic

curve.” (Emphasis added.) Without specifying that the x-ray was of Taylor’s lumbar spine or

definitively stating that there was straightening of the lordotic curve in the lumbar spine, Dr.

Pearce’s note provides no support to Taylor’s argument. Moreover, a suspicion of a muscle

spasm or possibility of the straightening of the lordotic curve does not equate to an objective

finding since “medical opinions addressing compensability and permanent impairment must

be stated within a reasonable degree of medical certainty.” Ark. Code Ann. § 11-9-

102(16)(B).

The remainder of the evidence regarding Taylor’s alleged lower back injury all consist

of complaints of pain and medical notations regarding pain. Complaints of pain, however,

3
We presume that “surgical” is an error in the transcription of Dr. Pearce’s dictation
and should have read “cervical.”

12
are not objective medical findings that can support a compensable-injury finding. Hice v.

Logan Cnty., 2024 Ark. App. 535, 700 S.W.3d 215; Carter, supra.

Because Taylor failed to present proof of objective medical findings to support her

claim of a lower back injury, the Commission did not err in concluding that she failed to

demonstrate she sustained a compensable injury to her lower back.

B. TTD Benefits

In her second point on appeal, Taylor challenges the Commission’s conclusion that

she failed to prove her entitlement to additional TTD benefits for her shoulder injury beyond

the TTD that Hino paid from November 6, 2020, through May 12, 2022. TTD benefits are

appropriate during the healing period in which an employee suffers a total incapacity to earn

wages. Wall Farms, LLC v. Hulsey, 2017 Ark. App. 624, 534 S.W.3d 771. The healing period

is that period for healing of an accidental injury that continues until the employee is as far

restored as the permanent character of his injury will permit and that ends when the

underlying condition causing the disability has become stable and nothing in the way of new

treatment will improve that condition. Fuller v. Pope Cnty. Judge, 2018 Ark. App. 1, 538

S.W.3d 851. The persistence of pain is not sufficient in itself to extend the healing period.

Smallwood v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 466, 375 S.W.3d 747. The claimant

has the burden to show that he or she remains in the healing period by a preponderance of

the evidence. Perez v. S. Tire Mart, LLC, 2024 Ark. App. 623, at 9, 704 S.W.3d 166, 172.

When the healing period has ended is a factual determination that the Commission must

make, and it will be affirmed on appeal if supported by substantial evidence. Id.

13
In finding that Taylor was not entitled to additional TTD benefits, the Commission

cited the results of the April 2022 FCE and Dr. Pearce’s ensuing conclusion that Taylor had

reached MMI and could return to regular work duties without restriction. The Commission

found that Dr. Pearce’s “opinion is credible, is corroborated by the record, and is entitled to

significant evidentiary weight.” The Commission also noted that there were no credible

medical opinions of record contradicting Dr. Pearce’s opinion. Accordingly, the

Commission concluded that “Taylor reached the end of her healing period for her October

21, 2020 compensable right shoulder injury no later than April 18, 2022,” the date on which

Dr. Pearce opined that she had reached MMI and could return to unrestricted work.

On appeal, Taylor argues that the Commission erred because it credited Dr. Pearce’s

opinion on this issue but disregarded his opinion that there was no additional treatment

necessary for her shoulder injury. She cites other medical records showing the existence of

the SLAP tear and notes that no other doctor has released her to return to work. She further

argues that she testified at the hearing before the ALJ that she tried to return to work as a

home-healthcare aide for a few weeks after Dr. Pearce released her, but she was physically

unable to do it.

As Hino notes, however, Taylor also testified that she was not aware that she had

been released to full duty, and had she been aware, she would have returned to a full-duty

job. In addition, Hino points out that after Dr. Pearce declared she was at MMI and released

her to work with no restrictions, there are no other medical records taking her off work or

placing restrictions on her.

14
To the extent that Taylor argues that the Commission was inconsistent in relying on

Dr. Pearce’s opinion for one purpose and rejecting his opinion for another, her argument

cannot prevail. The Commission is the ultimate arbiter of weight and credibility; it has the

authority to accept or reject medical opinions, and its resolution of conflicting medical

evidence has the force and effect of a jury verdict. Palmer v. Midwest Fertilizer, Inc., 2017 Ark.

App. 236, 519 S.W.3d 732; Bridgestone/Firestone, Inc. v. Hensley, 2010 Ark. App. 375. Further,

the Commission is entitled to review the basis for a doctor’s opinion in deciding the weight

and credibility of the opinion and medical evidence. Palmer, supra. Here, the Commission

deemed Dr. Pearce’s conclusion regarding Taylor’s reaching MMI to be “credible, . . .

corroborated by the record, and . . . entitled to significant evidentiary weight.” We are not

at liberty to disturb that decision.

C. Attorney’s Fees

Taylor’s third point on appeal involves the Commission’s decision that she had not

proved her entitlement to attorney’s fees “on all controverted indemnity, including that

previously paid for her shoulder.” This issue stems from Hino’s attempt to amend or

withdraw its prehearing stipulation. As noted above, Hino initially accepted Taylor’s right-

shoulder claim as compensable and paid TTD benefits from November 6, 2020, through

May 12, 2022. In a July 24, 2023 prehearing order, the ALJ noted that the parties had

stipulated that Hino “initially accepted [Taylor’s] alleged right shoulder injury as

compensable and paid medical and [TTD] benefits pursuant thereto; but they have now

15
controverted this claim in its entirety.” The parties subsequently agreed that among the issues

to be litigated was whether Taylor was entitled to a controverted attorney’s fee.

At the October 27, 2023 hearing on these issues, Taylor and Hino both addressed

the stipulation regarding Hino’s controversion of Taylor’s shoulder claim. Hino asked if it

could rephrase the stipulation, saying that the part about initially accepting Taylor’s right-

shoulder injury was correct, but proposing that it should state “respondents accepted

claimant’s right-shoulder injury as compensable and paid temporary and total disability

benefits up to . . . and including MMI” and should not state that “[Hino] has now

controverted this claim in its entirety.” Taylor clarified that Hino wanted to amend the

stipulation “to read they . . . have only controverted the back [injury] from the onset of the

claim.” The ALJ suggested that, if the parties agreed, the stipulation could be struck. Taylor

objected to the withdrawal of the stipulation, noting that “the fact that they have

controverted the claim in its entirety even though they’ve paid benefits” went to the issue of

attorney’s fees. Hino asserted that the stipulation in the prehearing order was essentially a

mistake and that it would not be prejudicial to Taylor to change it, except to the extent it

might prejudice her attorney and his fees. Hino pointed out that it had not, in fact,

controverted the claim in its entirety and thus should not owe attorney’s fees on previously

paid indemnity. After considering posthearing briefs, the ALJ denied Hino’s request to

withdraw its stipulation regarding controversion of Taylor’s claim and ruled that Taylor was

entitled to a controverted attorney’s fee on the indemnity benefits previously paid on the

claim.

16
The Commission reversed the ALJ’s decision on this issue. It acknowledged the July

24, 2023 prehearing order reflecting the parties’ stipulation that Hino was controverting the

right shoulder claim in its entirety. It also noted Hino’s statements before the

commencement of the October hearing that it had, in fact, not controverted the claim in its

entirety. The Commission reasoned that since Hino initially provided medical treatment

and paid TTD benefits for Taylor’s shoulder injury, it should be allowed to withdraw its

stipulation that it controverted the claim in its entirety. It further determined that because

Taylor had not been required to litigate the issue of TTD in order to be paid benefits, she

was not entitled to fees for legal services pursuant to Arkansas Code Annotated section 11-

9-715(a)(2)(B)(ii) (Repl. 2012). Taylor challenges this decision on appeal.

A stipulation is an agreement between attorneys respecting the conduct of the legal

proceedings. Dinwiddie v. Syler, 230 Ark. 405, 323 S.W.2d 548 (1959). The Commission has

the discretion to allow a party to withdraw a stipulation. Jackson v. Circle T Express, 49 Ark.

App. 94, 896 S.W.2d 602 (1995). In Jackson, the employer accepted compensability and paid

benefits, and it stipulated to compensability for purposes of a hearing to determine wage-loss

benefits and related medical expenses. The stipulation also was memorialized in a prehearing

order, as in the present case. Nevertheless, the Commission allowed the employer to

withdraw the stipulation as to compensability in defense of the claim for additional benefits.

The Commission reasoned that enforcing the stipulation was not compatible with the basic

notions of justice and fair play. This court affirmed the Commission’s action, holding that

its decision was consistent with its statutory duty under Ark. Code Ann. § 11-9-705(a)(1)

17
(Supp. 2023) to conduct the hearing in a manner that would best ascertain the rights of the

parties. The court also concluded that the appellant had suffered no prejudice as a result of

the Commission’s decision to allow the employer to retract the stipulation.

Here, the Commission concluded that Hino’s stipulation that it controverted the

claim in its entirety was inconsistent with the fact that it initially accepted Taylor’s claim,

provided benefits, and paid TTD. In other words, it credited Hino’s argument before the

ALJ that the stipulation was entered in error and determined, as in Jackson, that enforcing

the stipulation was not compatible with basic notions of justice.

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. Harvest

Foods v. Washam, 52 Ark. App. 72, 80, 914 S.W.2d 776, 780–81 (1996); Prier Brass v. Weller,

23 Ark. App. 193, 745 S.W.2d 647 (1988). A maxim of workers’-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. Ark. Code Ann. § 11-9-715(a)(2)(b)(i); Tyson Foods, Inc. v. Fatherree, 16

Ark. App. 41, 696 S.W.2d 782 (1985). Here, the Commission found that Hino accepted

Taylor’s shoulder injury as compensable and paid medical bills and TTD through the end of

her healing period; thus, there was no need to litigate that matter. Instead, the litigation

revolved around Taylor’s claim that she also sustained a compensable lower back injury and

was entitled to additional TTD. No compensation was awarded on those claims; thus, no

legal fees were warranted on that issue. This is what the Commission found:

18
[A] fee is payable from the employer or carrier only if benefits are controverted
and awarded. Eldridge v. Pace Indus., LLC, 2021 Ark. App. 245, 625 S.W.3d 734, citing
Burton v. Chartis Claims, Inc., 2014 Ark. App. 47. . . . In the present matter, litigation
was not necessary in order for the claimant to receive temporary total disability
benefits voluntarily paid by the respondents beginning November 6, 2020 and
continuing through May 12, 2022. In the subsequent pre-hearing order filed July 24,
2023, the claimant did not contend that she was entitled to an award of this period
of temporary total disability benefits. Nor did the administrative law judge award this
period of temporary total disability benefits or any other period. We find that the
claimant’s attorney is not entitled to fees for legal services in accordance with Ark.
Code Ann. § 11-9-715(a)(2)(B)(ii) (Repl. 2012).

(Emphasis in original.)

Having carefully reviewed the record before us, we cannot say that the Commission

abused its discretion in allowing Hino to withdraw its stipulation. See Jackson, supra. We

therefore affirm the Commission’s decision.

Affirmed.

GLADWIN and MURPHY, JJ., agree.

Caldwell Law Firm, P.A., by: Andy L. Caldwell, for appellant.

Jason M. Ryburn, for appellees.

19

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11131908. Public record. Not legal advice.