ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

RICHARD MAYNARD

APPELLANT

V.

BELDEN WIRE & CABLE and CRAWFORD & COMPANY

APPELLEES

CA01-1403

June 19, 2002

AN APPEAL FROM ARKANSAS WORKERS' COMPENSATION COMMISSION

E502002

AFFIRMED

Richard Maynard appeals the Arkansas Workers' Compensation Commission's findings that appellees Belden Wire & Cable and Crawford & Company did not controvert his entitlement to benefits and should not be held in contempt for failure to comply with prior orders of the Commission. On appeal, Maynard contends that the Commission erred in: 1) failing to hold the appellees in contempt for their failure to abide by prior orders of the Commission; 2) failing to find that the actions of the appellees amounted to a third controversion of his right to medical treatment; and 3) failing to impose sanctions against the appellees pursuant to Ark. Code Ann. § 11-9-802(d) for failure to pay certain pharmacy bills within thirty days. We affirm.

This claim has a long history with a final hearing conducted on January 26, 2001. On March 3, 1997, Maynard was awarded a twenty-percent impairment to his earning capacity in excess of the nine percent permanent physical impairment established by medical evidence. This order was not appealed and became final. However, the appellees terminated Maynard's medical benefits shortlythereafter, and the second hearing was conducted. On September 11, 1997, the Administrative Law Judge ("ALJ") found that additional medical treatment was reasonable and necessary, and the Commission affirmed on April 28, 1998. The appellees, however, refused to authorize treatment by any physician other than Dr. Reddey, a general practitioner, who initially examined Maynard and was the company physician.

A third hearing was conducted on February 26, 1999, to consider the appellees' contentions that they had the right to designate Maynard's treating physician after having controverted Maynard's right to additional medical treatment. The ALJ found the appellees' position to be without merit and further found that Maynard was entitled to receive treatment from Dr. Ault, who was his treating physician at the time appellees refused to provide medical treatment. In addition, the ALJ found that the appellees had controverted Maynard's entitlement to medical treatment for the second time and that they were liable for attorney's fees for both controversions. The Commission affirmed and adopted the ALJ's opinion on October 13, 1999.

On January 26, 2001, Maynard filed the claim which gives rise to the present appeal, in which he contended that the appellees had again refused to provide the medical treatment previously awarded and that he was entitled to attorney's fees for a third controversion. Specifically, Maynard claimed that the appellees refused to allow him to return to Dr. Ault for treatment as ordered by the Commission and had been dilatory in paying for his prescription medication. The ALJ directed the appellees to show cause as to why they should not be held in contempt for failure to comply with the Commission's order.

During the hearing, Maynard testified that he was authorized to see Dr. Ault, but that the appellees refused to authorize a spinal cord stimulator procedure that had been previously recommended by Dr. Ault. The ALJ found that the testimony of Loretta Birgy, an adjuster for thethird party administrator, as well as other evidence, established that Dr. Ault did not attempt to obtain authorization for the procedure until approximately November 8, 2000, and that the procedure had been promptly authorized by the appellees after Dr. Ault's request. The ALJ further noted that although there had been delays in paying for medication, there were no records documenting when the third party administrator actually received the pharmacy bills. The ALJ noted that the balance was ultimately paid, and Maynard was never unable to obtain his medicine. The ALJ found that Maynard failed to prove by a preponderance of the evidence that the appellees controverted medical benefits a third time and declined to impose sanctions. The Commission adopted and affirmed, and Maynard appeals.

Maynard first argues that the Commission erred in failing to hold the appellees in contempt. He argues that because Dr. Ault prepared a prescription letter of medical necessity on November 3, 1999, concerning the spinal cord stimulator, the appellees should have approved the device immediately. He further argues that Dr. Ault's records reflect that, on May 2, 2000, he continued to recommend the treatment and that there was no evidence that the appellees approved this recommendation. The appellees counter that Maynard's argument must fail because the issue of contempt was raised sua sponte by the ALJ; Maynard has failed to offer precedent establishing his standing to challenge the Commission's decision; and Maynard's argument is based upon improper references to medical records not in evidence.

When reviewing a Workers' Compensation Commission decision, we will view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Second Injury Fund v. J & S Trucking, 71 Ark. App. 218, 30 S.W.3d 112 (2000). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion one way oranother. Id. The issue on appeal is not whether this court might have reached a different conclusion from that of the Commission but rather if reasonable minds could arrive at the same decision as the Commission. Id.

Generally, a person who has a pecuniary interest in the outcome of the action has standing to assert a claim on his behalf. First United Bank v. Phase II, 347 Ark. 879, 69 S.W.3d 33 (2002). However, before a party can raise an issue on appeal, he must demonstrate that he has been adversely affected or aggrieved by the action of an administrative agency. Second Injury Fund, supra. The injury must be concrete, specific, real, and immediate, rather than conjectural or hypothetical. Id. In this case, Maynard had an interest in the outcome of this action, and although the issue of contempt was raised sua sponte by the ALJ, we do not agree that he lacks standing to challenge the Commission's decision on this issue.

Maynard contends that appellees did not meet their statutory duty under Ark. Code Ann. § 11-9-508(a) (Repl. 1996) to provide all reasonably necessary medical treatment in that they merely allowed him to see Dr. Ault, but did not authorize the treatment he recommended. He contends that Dr. Ault had been recommending the stimulator since before the third hearing in this case, and once that decision became final, the appellees should have immediately approved the procedure.

Maynard testified that he had "been able to continually see the doctor since that time [of the November 1999 order] other than getting approval for this procedure...." Loretta Birgy, the appellees' workers' compensation adjuster, stated that she specifically authorized the surgery on January 24, 2001, and that she had immediately given prior authorization and faxed it to Dr.Ault's office on November 8, 2000, when he requested it.

The ALJ found Maynard's assertions that the appellees failed to authorize the treatment byDr. Ault to be "totally without merit and without any basis whatsoever." The ALJ noted that Maynard, himself, admitted that he had experienced no problems obtaining authorization to see Dr. Ault. The ALJ further noted:

Viewing the evidence in the light most favorable to the Commission's decision, we cannot say that the Commission erred in failing to find the appellees in contempt. Substantial evidence supports the finding that Maynard was not denied access to Dr. Ault; that Dr. Ault did not seek formal authorization for the stimulator procedure until November 8, 2000; and that authorization was promptly granted by appellees at that time.

Maynard next argues that the actions of the appellees amount to a third controversion of his right to medical treatment and the Commission erred in failing to so find. Maynard contends that the refusal to approve Dr. Ault's recommended treatment is evidence of the appellees' contempt of prior orders of the Commission and also proves that the appellees controverted his right to additional medical treatment by Dr. Ault. He also argues that the appellees' failure to timely pay his pharmacy bills is evidence they have again controverted his right to medical treatment.

Arkansas Code Annotated section 11-9-802(d) (Repl. 1996) states that medical bills are payable within thirty days after receipt by the respondent unless disputed as to compensability or amount. The question of whether or not a claim is a controverted is one of fact for the Commission to be determined from the circumstances of each case. Buckner v. Sparks & Second Injury Fund, 32 Ark. App. 5, 794 S.W.2d 623 (1990); Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671S.W.2d 768 (1984). However, the mere failure of an employer to pay compensation benefits does not amount to controversion, in and of itself. Revere Copper & Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). It is within the sole province of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001).

Maynard contends that the evidence presented clearly demonstrates that his pharmacy account was billed regularly and the mere fact that the pharmacy employees could not state the exact date a particular bill was mailed is simply not relevant to the issue of whether payment was timely once the bill was received by the appellees. Maynard claims that his pharmacist "threatened to stop providing him with prescription medication because the bill had become excessively large, was several months delinquent, and payment was not being received in a timely fashion." The appellees contend that the pharmacy did not keep independent logs showing the date a bill was generated or mailed and that because some of the invoices had the address of Maynard's past employer, bills were not received timely, and this resulted in delays in the prompt auditing and payment of bills.

Maynard testified that he "had trouble having [his] pharmacy bill paid" and that he had been denied refills. However, he later stated that he had never gone without his prescription medication, but that the pharmacy had only "threatened" to deny refills. Birgy testified that pharmacy bills are paid right away, but admitted that "we're going to find very few if any of those that are being paid in thirty days. As a matter of fact, we see three, four, and five months as being pretty much the standard from date of receipt till date of payment." She also stated that due to the extensive paperwork at her office, after a bill is screened, it is "purged," leaving no way to prove the date it was received. In fact, Birgy, noted that "[t]here is absolutely no way for a claimant to prove that bills are not being paid in a timely fashion under this procedure." Her explanation for why somebills were not paid was that she did not have them and that some of the pharmacy bills had been sent to the wrong address. She did state that the January, November, and December bills in 2000 were not paid until January of 2001, but that all others, to her knowledge, were paid during the year.

Jackie Rogers, a pharmacy technician at Maynard's pharmacy, testified that she usually sent the claims for workers' compensation claims within the next two to four days after a prescription is filled, and when the bills were three months behind, she would start calling to determine what the problem was. Rogers also stated that the appellees never indicated that they needed more information or explained why the bills were not being timely paid.

The ALJ found that the "record does establish that there have been delays in paying for prescription medication prescribed by Dr. Ault for treatment of the claimant's compensable injury." The ALJ noted that:

The evidence established that some of Maynard's pharmacy bills were paid after thirty days. However, this fact alone does not establish controversion; controversion is a question of fact for the Commission to determine. Viewing the evidence in the light most favorable to the Commission's decision, we cannot say that the finding that appellees did not controvert Maynard's claim is not supported by substantial evidence.

For his final point, Maynard argues that the Commission erred in failing to impose sanctions against the appellees pursuant to Ark. Code Ann. § 11-9-802(d) for failure to pay his pharmacy billswithin thirty days. Maynard contends that because the Commission specifically found that the appellees did not pay the pharmacy bills in a timely fashion, and based on other evidence, there is clear evidence that the appellees violated Ark. Code Ann. § 11-9-802(d), which provides that medical bills be paid within thirty days. The appellees claim that Maynard's arguments must fail because there was no controversion; the issue of sanctions was never properly raised at the hearing; and the ALJ's discretion should not be questioned in absence of clear abuse. They further claim that the record is devoid of any evidence that the delays in payment of some of the pharmacy bills was "intentional" or "willful" as required by Ark. Code Ann. § 11-9-802(e), in which event only a penalty of up to thirty-six percent of the bills is authorized.

We are unable to address the merits of this argument because the record before us does not show that this issue was raised to or ruled on by the ALJ or the Commission. The ALJ's opinion that was adopted by the Commission states in pertinent part:

Moreover, there is no reference whatsoever to the statute in the ALJ's decision. Because Maynard failed to raise an argument based upon § 11-9-802(d) below, we decline to address it here. See Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998) (citing Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995)). Even if the Commission's opinion could somehow be read to indicate that an argument based upon this statute was raised, the opinioncontains no ruling concerning the statute. It was Maynard's responsibility to obtain a ruling; a question not passed upon below presents no question for decision here. Oak Grove Lumber, supra (citing W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996)).

Affirmed.

vaught and Hart , JJ., agree.