The opinion
Andree Layton Roaf, Judge, dissenting. I agree with the majority on the affirmance of the direct appeal brought by Jeter. However, I do not agree that the cross-appeal should also be affirmed, and I would reverse.
B.R. McGinty argues on cross-appeal that there is no substantial evidence to support the Commission’s finding that it controverted the award of Jeter’s permanent partial disability (PPD). It contends that the Commission disregarded controlling authority in Lambert v. Baldor Elec., 44 Ark. App. 117 , 868 S.W.2d 513 (1993), and points to the prehearing order filed August 27, 1992, which states in pertinent part:
Claimant contends in summary that he sustained a compen-sable heart attack on June 12, 1991; that he is entitled to temporary total disability benefits from June 12, 1991, and continuing through an undetermined date based upon the medical evidence; payment of all medical and related expenses; and controverted attorney’s fee on any benefits awarded. Claimant specifically reserved the issues of vocational rehabilitation and permanent disability.
(Emphasis added.)
B.R. McGinty contends that the issue of permanent disability was specifically reserved and that it willingly began paying PPD even before a rating had been assigned and the amount established. Further, citing Aluminum Co. of Amer. v. Henning, 260 Ark. 699 , 543 S.W.2d 480 (1976), B.R. McGinty contends that the purpose of the attorney fees statute is to discourage respondents from delaying accepting liability for the claim and to deter arbitrary denial of claims, and because it promptly paid the PPD benefits, it should not be penalized. I fully agree with both contentions.
In the August 27, 1992, prehearing order, the issue of permanent impairment was specifically excepted from the scheduled September 23, 1992, hearing. Although the Commission is essentially correct in stating that the “parties did in fact raise and develop the permanent anatomical impairment issue at the September 23, 1992, hearing,” this statement is misleading. B.R. McGinty raised this issue only to totally capitulate. The administrative law judge (ALJ) noted on the record B.R. McGinty’s decision to pay PPD even though Jeter had not yet been medically maximized, and stated, “of course, as you all were both aware, the primary issue was one of compensability, and permanent disability, as well as rehabilitation, was specifically reserved even by the terms of the prehearing order filed August the 27th.” Accordingly, it was clear that B.R. McGinty could have controverted the amount of PPD, but chose not to. While res judicata prevented it from subsequently controverting the amount of PPD benefits, it has nothing to do with deeming a reserved issue controverted.
Moreover, B.R. McGinty justifiably relies upon Lambert v. Baldor Elec., supra. In Lambert, the employer had fully controverted a claim. However, after the ALJ ruled that the injury was com-pensable and awarded temporary disability benefits and attorney’s fees, the employer settled a later claim for total permanent disability benefits on the day Lambert requested a hearing on the issue. This court rejected Lambert’s argument that, because the employer had controverted disability at a prior hearing, such con-troversion should extend to any disability benefits awarded at any subsequent hearing, stating, “this argument is without merit because Baldor Electric did not controvert Lambert’s claim for permanent benefits.” This is precisely the scenario presented in the instant case, however, the Commission and this court inexplicably have chosen to penalize B.J. McGinty, who agreed to pay permanent benefits at an even earlier stage than did the employer in Lambert.
Although it is true that the question of controversion is one of fact to be determined by the Commission and must be affirmed if supported by substantial evidence, Aluminum Co. of Amer. v. Henning, supra, I conclude that there is no evidence of controversion of the reserved issue of PPD. Accordingly, I would reverse the Commission’s award of attorney fees based on the PPD award.
Crabtree, J., joins.