Ark. Code Ann. § 11-9-802 (2020)
Installments
- The first installment of compensation shall become due on the fifteenth day after the employer has notice of the injury or death, as provided in § 11-9-701, on which date all compensation then accrued shall be paid. Thereafter, compensation shall be paid every two (2) weeks except where the Workers' Compensation Commission directs that installment payments be made at other periods.
- If any installment of compensation payable without an award is not paid within fifteen (15) days after it becomes due, as provided in subsection (a) of this section, there shall be added to the unpaid installment an amount equal to eighteen percent (18%) thereof, which shall be paid at the same time as, but in addition to, the installment unless notice of controversion is filed or an extension is granted the employer under § 11-9-803 or unless such nonpayment is excused by the commission after a showing by the employer that, owing to conditions over which he or she had no control, the installment could not be paid within the period prescribed.
- If any installment payable under the terms of an award is not paid within fifteen (15) days after it becomes due, there shall be added to such unpaid installment an amount equal to twenty percent (20%) thereof, which shall be paid at the same time as, but in addition to, the installment unless review of the compensation order making the award is had as provided in §§ 11-9-711 and 11-9-712.
- Medical bills are payable within thirty (30) days after receipt by the respondent unless disputed as to compensability or amount.
- In the event that the commission finds the failure to pay any benefit is willful and intentional, the penalty shall be up to thirty-six percent (36%), payable to the claimant.
History. Init. Meas. 1948, No. 4, § 19, Acts 1949, p. 1420; Acts 1959, No. 167, § 1; 1981, No. 290, § 8; 1986 (2nd Ex. Sess.), No. 10, § 9; A.S.A. 1947, § 81-1319; Acts 1993, No. 796, § 37.
A.C.R.C. Notes. Acts 2001, No. 1757, § 9, provided in part:
“Nothing in the act, which originated as House Bill 2646 of 2001, nor in Act 1552 of 1999 shall impliedly repeal any part of Act 796 of 1993. Act 796 of 1993 is expressly reaffirmed by this act, which originated as House Bill 2646 of 2001.”
Case Notes
Constitutionality.
Employers did not present the appellate court with any convincing argument regarding how or why the cases they cited were applicable in deciding whether subsection (c) of this section violated their rights under the Arkansas Constitution, Ark. Const. Art. II, §§ 8 or 9, and did not develop their argument with citation to any case law addressing anything approaching the constitutionality of late-payment schemes analogous to subsection (c). Owens Planting Co. v. Graham, 2011 Ark. App. 444, 384 S.W.3d 634 (2011).
Construction.
The term “installment” for purposes of subsection (c) includes compensation, and includes interest awarded on compensation benefits. Couch v. First State Bank, 49 Ark. App. 102, 898 S.W.2d 57 (1995).
Applicability.
The penalty provisions of this section do not apply with respect to the late payment of medical bills and legal expenses since the penalty provisions only apply to installment payments of compensation. Model Laundry & Dry Cleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (Ct. App. 1980); Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992).
Subsection (b) applies only to the failure to pay benefits that are due and not controverted. Milligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997), supp. op., Clark v. Director, Empl. Sec. Dep't, 58 Ark. App. 1, 944 S.W.2d 862.
Substantial evidence supported the Arkansas Workers' Compensation Commission's disposition of a contempt issue by not requiring the imposition of a 36 percent penalty where appellees' had acknowledged that the illness of an adjuster was affecting the processing of claims and steps were taken to address the delays. Bingle v. Quality Inn, 96 Ark. App. 312, 241 S.W.3d 271 (2006).
Arkansas Workers' Compensation Commission did not err in finding that no penalty was due from an employer and its insurer pursuant to subsection (c) of this section where the order entered by the Commission awarding permanent total disability benefits to an employee was the award contemplated by the statute. O'Hara v. J. Christy Constr. Co., 101 Ark. App. 212, 272 S.W.3d 842 (2008), rehearing denied, — Ark. App. —, 272 S.W.3d 842 (2008), rehearing denied, — Ark. App. —, — S.W.3d —, 2008 Ark. App. LEXIS 324 (Apr. 16, 2008).
Employer did not violate previous orders of the Arkansas Workers' Compensation Commission when it failed to pay for surgery recommended by a different doctor because the employer was entitled to challenge the reasonableness of the new treatment and substantial evidence supported the Commission's determination that the suggested surgery was not reasonable and necessary. Crawford v. Superior Indus. & Crockett Adjustment, Inc., 2009 Ark. App. 738, 361 S.W.3d 290 (2009).
Insurer's Refusal to Pay.
An injured employee cannot sue the workers' compensation insurer for an intentional tort when that insurer declines to pay certain medical expenses; his exclusive remedy is under the Workers' Compensation Act. Liberty Mut. Ins. Co. v. Coleman, 313 Ark. 212, 852 S.W.2d 816 (1993).
Penalty assessed against employer and insurance carrier who acted egregiously in refusing to pay rightfully due benefits on time. Milligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997).
Payable Under Award.
Subsection (c) applies only where award has been made; it is inapplicable to payment within 30 days of award made years after the original accident. Phillips v. Bray, 234 Ark. 190, 351 S.W.2d 147 (1961).
Where employer and its compensation carrier withheld money from the amount due employee under the commission's award, the imposition of a 20 percent penalty on the entire amount of the award was proper. Mohawk Tire & Rubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126 (1976).
The penalty provision of subsection (c) applies only to disability benefits and has no application to claimant's medical bills. Frank J. Rooney, Inc. v. Pitts, 268 Ark. 911, 597 S.W.2d 120 (Ct. App. 1980).
Administrative law judge erred in ordering the carrier to pay a 20 percent penalty under subsection (c) of this section on the unpaid medical expenses, since the carrier being asked to pay a substantial amount of medical expenses was entitled to a hearing and determination of the issue of reasonableness and necessity without being assessed a 20 percent penalty. Frank J. Rooney, Inc. v. Pitts, 268 Ark. 911, 597 S.W.2d 120 (Ct. App. 1980).
To assess a 20 percent penalty on the benefits allowed by the award for employer's delay of payment. Smith's Store v. Kirker, 6 Ark. App. 222, 639 S.W.2d 751 (1982).
The penalty allowed by subsection (c) of this section does not apply to medical bills and attorney fees. Smith's Store v. Kirker, 6 Ark. App. 222, 639 S.W.2d 751 (1982).
Where the compensation commission held that the penalty provided in subsection (c) did not attach until 15 days after the time for filing an appeal had expired, it correctly reconciled subsection (c) and § 11-9-711(a)(1). Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992).
Failure to begin paying benefits within the statutory period gives rise to the twenty-percent penalty laid out in this section. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).
Twenty-percent penalty and award of a second attorney's fee for controversion was properly assessed against defendants where the commission clearly awarded temporary total disability benefits to the claimant at the rate of $241.93 per week from June 8, 1992, to a date yet to be determined, and defendants were ordered to comply with the award made by the administrative law judge which the commission adopted and affirmed in its April 2, 1993, decision and defendants took no appeal and where defendants had paid none of the temporary total disability benefits that were awarded more than two years prior to the appeal. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).
Payable Without Award.
The penalty provision of subsection (b) applies only to disability benefits and has no application to medical bills. Turner v. Trade Winds Inn, 267 Ark. 861, 592 S.W.2d 454 (Ct. App. 1979).
Evidence sufficient to find that employer not liable for penalty under subsection (b). Turner v. Trade Winds Inn, 267 Ark. 861, 592 S.W.2d 454 (Ct. App. 1979).
Subsection (b) applies only to installments payable without an award. Eskridge v. Goldman & Co., 268 Ark. 967, 598 S.W.2d 425 (Ct. App. 1980).
Cited: Robinson v. Ed Williams Constr. Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992); Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997); Castleberry v. Elite Lamp Co., 69 Ark. App. 359, 13 S.W.3d 211 (2000); Cooper Std. Auto., Inc. v. Kelley, 2009 Ark. App. 552, 337 S.W.3d 542 (2009).