Cite as 2026 Ark. App. 511
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-25-762
PEPPER SOURCE, LTD.; AND SUMMIT Opinion Delivered October 28, 2026
CONSULTING, LLC
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
APPELLANTS
[NO. H304672]
V.
GREGORY ROBERSON
APPELLEE AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Appellants, Pepper Source, Ltd.; and Summit Consulting, LLC, appeal the Arkansas
Workers’ Compensation Commission’s decision awarding appellee Gregory Roberson’s
attorney a controverted attorney’s fee. On appeal, appellants challenge the Commission’s
award of an attorney’s fee on temporary total-disability benefits paid beginning February 24,
2025. We affirm.
On July 14, 2022, appellee was injured while working for appellants when he was
pinned between two totes that weighed approximately 160 to 200 pounds. He experienced
pain in his mid-back, shoulder area, chest, and neck. The parties stipulated that appellee
suffered a compensable injury to his right shoulder in the incident.
Appellee was taken to Baptist Health where he was diagnosed with multiple injuries
including crush injuries to his right arm, chest, and right hand as well as abrasions to his
back and an abdominal injury. On July 27, 2022, he was evaluated by Cynthia Johnson,
APRN, who diagnosed right-shoulder pain and strain; abrasions and contusion to his thorax;
cervical pain; and sprains of his thoracic and lumbar spine.
Johnson initially treated appellee with physical therapy. When his symptoms
persisted, she ordered MRIs of his thoracic and lumbar spine. The August 2022 MRIs
revealed disc protrusions and bulges, prompting Johnson to refer appellee to Dr. Frank
Tomecek for a neurosurgical evaluation. Dr. Tomecek evaluated appellee in October 2022
and noted a small L4–5 disc herniation, thoracic disc protrusions at T5–6 and T8–9, and
disc bulges at T2–3 and T3–4. He recommended additional physical therapy and an L4–5
injection with Dr. Goodman.
Appellee initially improved with physical therapy and an injection, and Dr. Tomecek
released him to work without restrictions in December 2022. Appellee later reported
increased right-shoulder and upper-extremity pain, prompting further evaluation of his
cervical spine. A July 2023 MRI revealed a small disc protrusion at C3–4 and mild disc bulges
at C5–6 and C6–7. After additional physical therapy, Dr. Tomecek again found appellee at
maximum medical improvement and released him to work without restrictions in October
2023.
Appellants accepted appellee’s right-shoulder injury and provided treatment for his
spinal complaints but ultimately denied compensability of the alleged neck and back injuries.
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Appellee sought a determination of compensability, and a hearing was held before an
administrative law judge (“ALJ”) on February 12, 2024. At that time, appellee continued to
work, and no indemnity benefits were at issue. Appellee sought a determination of
compensability so that he could exercise his right to a change of physician but acknowledged
that the change-of-physician issue could not yet be determined. The ALJ found that appellee
proved compensable thoracic- and lumbar-spine injuries but failed to prove a compensable
cervical-spine injury. The ALJ’s decision was not appealed and became final.
Appellee later underwent surgery for his compensable back injury and was unable to
work during his recovery. Appellants began paying him temporary total-disability benefits on
February 24, 2025. Appellee’s attorney requested an attorney’s fee on those benefits, which
appellants declined to pay. A dispute therefore arose over whether appellee’s attorney was
entitled to a fee as a result of appellants’ earlier controversion of the compensability of his
back injury.
A hearing was held on June 30, 2025, on the attorney’s-fee issue. The parties
stipulated that appellee earned an average weekly wage of $1,070, entitling him to
compensation at the rates of $713 for total disability benefits and $535 for permanent partialdisability benefits. The ALJ found that appellants’ controversion of appellee’s back injury
also controverted the temporary total-disability benefits that later arose from that injury and
awarded appellee’s attorney a fee on those benefits.
Appellants timely appealed the ALJ opinion to the Commission, arguing that
appellee’s attorney was not entitled to a controverted attorney’s fee on the temporary total3
disability benefits. On October 8, 2025, the Commission affirmed and adopted the ALJ’s
July 22, 2025, decision. This appeal followed.
This court views the evidence in the light most favorable to the Commission’s
decision and affirms the decision if it is supported by substantial evidence. Baxter Reg’l Med.
Ctr. v. Ferris, 2018 Ark. App. 625, at 3, 565 S.W.3d 149, 152 (citing Pratt v. Rheem Mfg., 2013
Ark. App. 577). Substantial evidence exists if reasonable minds could reach the
Commission’s conclusion. Id. Normally, we review only the decision of the Commission, not
that of the ALJ. Id. (citing Queen v. Nortel Networks, Inc., 2012 Ark. App. 188, at 3). When,
however, as here, the Commission affirms and adopts the ALJ’s opinion, thereby making the
findings and conclusions of the ALJ the Commission’s findings and conclusions, this court
considers both the ALJ’s opinion and the Commission’s opinion. Id. (citing Mercy Hosp. Fort
Smith v. Hendley, 2015 Ark. App. 527, at 1).
Appellants argue that the Commission erred in awarding appellee’s attorney a fee on
the temporary total-disability benefits paid beginning on February 24, 2025.
Arkansas Code Annotated section 11-9-715(a)(2)(B)(i) (Repl. 2025) provides that
whenever the Commission finds that a claim has been controverted, in whole or in part, it
shall direct that fees for legal services be paid to the claimant’s attorney. Section 11-9-715(a)(2)(B)(ii) further provides that “[t]he fees shall be allowed only on the amount of
compensation for indemnity benefits controverted and awarded.”
Appellants first contend that the Commission misconstrued the term “claim” in
section 11-9-715. They maintain that a claim refers to a particular benefit rather than the
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workers’-compensation matter as a whole and, therefore, that their controversion of
compensability did not constitute controversion of appellee’s later temporary total-disability
benefits. In support of their interpretation, appellants rely on other provisions of the
Workers’ Compensation Act and cases interpreting those provisions in which the term
“claim” refers to a request for a particular benefit.
However, the Act does not define “claim” for purposes of section 11-9-715, and the
authorities relied on by appellants do not interpret the term in the context of the attorney’sfee statute. Rather, those cases concern claims for purposes of the statute of limitations
under section 11-9-702. Thus, those authorities do not establish that a “claim” under section
11-9-715 means a request for a particular benefit.
Appellants next argue that, regardless of the meaning of “claim,” appellee’s temporary
total-disability benefits were never controverted. They assert that no indemnity benefits were
at issue during the 2024 compensability proceeding and that appellee was not then seeking
any specific benefits. When appellee later became entitled to temporary total-disability
benefits, appellants contend that they began paying those benefits before appellee requested
them. Therefore, appellants assert that the benefits were neither controverted nor awarded
as required by Arkansas Code Annotated section 11-9-715(a)(2)(B)(ii).
Whether a claim has been controverted is a question of fact for the Commission,
whose determination will not be disturbed if supported by substantial evidence. See Irons v.
Minton, 10 Ark. App. 38, 39, 661 S.W.2d 408, 409 (1983). The Commission may find that
benefits were controverted despite the employer’s subsequent voluntary payment. See, e.g., id.
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In Wal-Mart Stores, Inc. v. Brown, the employer controverted temporary partialdisability benefits but voluntarily paid them before the hearing. 73 Ark. App. 174, 176, 40
S.W.3d 835, 837 (2001). This court affirmed the attorney’s-fee award, holding that the
statute does not require an award of controverted benefits to precede their payment. Id.
Similarly, in Cleek v. Great Southern Metals, the Arkansas Supreme Court recognized that a
claimant’s successful litigation of liability protected her entitlement to future medical
expenses and disability benefits because, had she not prevailed on liability, those future
benefits would have been barred. 335 Ark. 342, 345, 981 S.W.2d 529, 531 (1998). Although
Cleek predates the 2001 amendment to section 11-9-715, appellants acknowledge that its
reasoning remains applicable under the current statute. Id. They contend, however, that
Cleek is distinguishable because the benefits at issue there already existed when controverted.
Id.
Here, although appellants did not separately controvert appellee’s temporary totaldisability benefits, they controverted the compensability of his back injury. Appellee had to
litigate the compensability of his back injury before appellants could be held liable for
benefits arising from that injury. His temporary total-disability benefits subsequently arose
from the compensable back injury and resulting surgery. Thus, appellants’ voluntary
payment of those benefits does not negate the Commission’s finding that they had been
controverted. Accordingly, substantial evidence supports the Commission’s finding that the
temporary total-disability benefits were controverted.
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Appellants further argue that the Commission’s decision rests on speculation that the
earlier denial of compensability necessarily controverted any future indemnity benefits
arising from appellee’s back injury. They also contend that no indemnity benefits existed or
were sought at the time of the 2024 proceeding. According to appellants, treating the earlier
compensability dispute as a controversion of all future indemnity benefits improperly
expands section 11-9-715 and could result in attorney’s fees on benefits arising long after
compensability is established.
This argument misconstrues the Commission’s decision. The Commission did not
award an attorney’s fee on hypothetical or unaccrued benefits. Rather, it awarded a fee on
the temporary total-disability benefits actually paid beginning February 24, 2025. Thus, the
concerns raised by appellants regarding unknown or unaccrued future benefits are not
presented by the facts of this case.
Finally, appellants argue that the attorney’s-fee award is inconsistent with the purpose
of section 11-9-715 because appellee’s attorney performed no services to obtain temporary
total-disability benefits. Although appellants acknowledge that their denial of compensability
necessitated the 2024 hearing, they contend that the subsequent attorney’s-fee proceeding
was separate and unnecessary because they voluntarily paid the temporary total-disability
benefits. Appellants further maintain that allowing a fee on future indemnity benefits under
these circumstances could result in fees disproportionate to the legal services performed.
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. Taylor v.
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Hino Motors Mfg. U.S.A., Inc., 2025 Ark. App. 405, at 18 (citing 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. Id. (citing Ark. Code Ann. § 11-9-715(a)(2)(B)(i)).
Here, appellants’ argument focuses on the absence of additional legal services
performed in connection with the payment of temporary total-disability benefits. However,
appellants’ denial of compensability required appellee to obtain counsel and litigate the
compensability of his back injury. Had appellee not prevailed in that litigation, he would not
have been entitled to temporary total-disability benefits arising from his subsequent back
surgery. Thus, although appellants voluntarily paid those benefits, appellee’s attorney had
already performed the legal work necessary to establish compensability of the back injury
from which those benefits arose.
Appellants’ argument that the fee could be disproportionate to the services performed
likewise does not warrant reversal. Arkansas Code Annotated section 11-9-715(a)(1)(B)
provides that “[a]ttorney’s fees shall be twenty-five percent (25%) of compensation for
indemnity benefits payable to the injured employee or dependents of a deceased employee.
Attorney’s fees shall not be awarded on medical benefits or services except as provided in
subdivision (a)(4) of this section.” The statute does not require consideration of the amount
of legal services performed in calculating a fee on a controverted claim.
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Accordingly, substantial evidence supports the Commission’s decision to award an
attorney’s fee on appellee’s temporary total-disability benefits.
Affirmed.
ABRAMSON and MURPHY, JJ., agree.
Jason M. Ryburn, for appellants.
Walker Law Group, PLC, by: Eddie H. Walker, Jr., for appellee.
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