Wilbert Arnold v. Wal-Mart

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-0609

WILBERT ARNOLD

VERSUS

WAL-MART STORES, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - #3
PARISH OF CALCASIEU, NO. 01-00769
HONORABLE CONSTANCE ABRAHAM-HANDY
WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ned E. Doucet, Jr., Chief Judge, Oswald A. Decuir, and Marc T.
Amy, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Michael B. Miller
Post Office Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Wilbert Arnold

Charles Martin Kreamer, Sr.
Allen & Gooch
Post Office Box 3768
Lafayette, LA 70502-3768
(337) 291-1000
COUNSEL FOR DEFENDANT/APPELLEE:
Wal-Mart Stores, Inc.

AMY, Judge.

In this workers’ compensation matter, the employee filed a disputed claim

against his employer and its workers’ compensation insurer, contending that the

employer and its insurer had failed to approve the employee’s orthopedic surgery and

had neglected to properly pay workers’ compensation benefits. The workers’

compensation judge issued a ruling denying the employee’s claims and dismissing the

suit with prejudice. The employee filed the instant appeal. For the following reasons,

we affirm in part, reverse in part, and remand.

Factual and Procedural Background

Wilbert Arnold, the claimant herein, began working as a grocery stocker at the

Wal-Mart Supercenter in Jennings, Louisiana, in January 2000. One of Mr. Arnold’s

duties in his capacity as a stocker was to unload meat trucks and to store this meat in

Wal-Mart’s freezer. On October 22, 2000, during the graveyard shift, Mr. Arnold

slipped and fell as he attempted to push a pallet allegedly weighing 600-800 pounds

and stacked 8-12 feet high with meat across an ice-covered freezer floor. At the

disputed claim hearing on the matter, he explained that as a matter of course, it was

necessary to “get a running start to push the pallet jack over the ice [on the freezer

floor],” and he recalled that, in so doing, when he stepped onto the sheet of ice, he

slipped, fell head over heels in somersault fashion, and landed, supine, on the freezer

floor. Mr. Arnold noted in his statement to Wal-Mart’s insurance adjuster that he then

crawled to the door and pulled himself to his feet using a pole. He promptly informed

his supervisor and the store manager that he had been injured, and he then proceeded

to the emergency room of a nearby hospital, where he was treated and released. The

record indicates that soon thereafter, Mr. Arnold visited Dr. Robert Marshall, who had

been his family physician since 1999, presenting complaints of back pain. Although

Mr. Arnold’s back pain eventually resolved itself, he began to experience considerable

neck pain, which grew worse. On January 10, 2001, Mr. Arnold consulted Dr. John

Cobb, an orthopedic surgeon in Lafayette, who recommended cervical discectomy,

decompression, and fusion. Wal-Mart and Claims Management, Inc., its third-party

claims administrator (hereinafter “CMI”), desired a second opinion as to the necessity

of surgery, and the record reflects that they arranged for Dr. Randall Lea, an

orthopedist in Baton Rouge, to examine Mr. Arnold. Dr. Lea’s report indicates that

he agreed with Dr. Cobb’s finding that surgical fusion and decompression was

warranted, opining that “surgery [was] needed for an acute aggravation of a

degenerative condition.”

On February 1, 2001, Mr. Arnold filed a disputed claim for compensation in

which he alleged that Wal-Mart and CMI (hereinafter collectively “Wal-Mart”) had

not authorized surgery as recommended by Mr. Arnold’s orthopedist. Mr. Arnold

further asserted that Wal-Mart had neglected to pay workers’ compensation benefits

and had not properly provided medical treatment and workers’ compensation. He also

requested penalties and attorney’s fees. A disputed-claim hearing was held on March

11, 2002. In August 2002, before a ruling was issued, the workers’ compensation

judge assigned to Mr. Arnold’s case, passed away. A different workers’ compensation

judge was assigned to consider the matter. On February 24, 2003, the workers’

compensation judge issued a ruling denying Mr. Arnold’s claims and dismissing the

complaint with prejudice.

Mr. Arnold asserts eleven assignments of error on appeal. Those assignments

are as follows:

1. It was error for the hearing officer to fail to find that Mr. Arnold was
injured in the course and scope of his employment with Wal-Mart and
entitled to temporary total disability benefits.

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2. The hearing officer erred in using “arbitrary and capricious conduct”
as the standard for assessing attorney’s fees.
3. It was error for the hearing officer to fail to include fringe benefits in
the calculation of Mr. Arnold’s average weekly wage and assess a
penalty for the failure to properly pay weekly benefits.
4. The hearing officer erred in failing to assess penalties due to
defendant’s failure to timely pay Wilbert Arnold weekly compensation
benefits for the weeks of June 15th through June 28th and June 29th
through July 12th of 2001.
5. The hearing officer erred in failing to order Wal-Mart to pay for the
prescription ordered by Dr. Mitchell and penalties for Wal-Mart’s failure
to pay for the prescription of Dr. Mitchell.
6. It was error for the hearing officer to fail to order Wal-Mart to pay for
the mileage submitted on January 31, 2001 and assess a penalty against
Wal-Mart for failure to pay the mileage request.
7. The hearing officer erred in failing to order Wal-Mart to pay the MRI
bills to Jeff Davis Radiology and Jeff Davis Diagnostics and in failing
to order Wal-Mart to pay a penalty as a result of its failure to pay those
MRI bills.
8. The hearing officer erred in failing to assess penalties against Wal-
Mart for failure to timely guarantee the surgery recommended by Dr.
Cobb.
9. The hearing officer erred in failing to assess back due weekly
compensation benefits due Wilbert Arnold as a result of the
miscalculation of Mr. Arnold’s average weekly wage and workers’
compensation rate.
10. It was error for the hearing officer to fail to award attorney’s fees
due and expenses.
11. It was error to dismiss Mr. Arnold’s case, with prejudice.

Discussion

On appeal, Mr. Arnold generally asserts that the workers’ compensation judge

erred in denying his claims against Wal-Mart and CMI. He claims that the workers’

compensation judge erred as a matter of law in finding that Wal-Mart had properly

calculated his average weekly wage, in applying an incorrect standard to his requests

for penalties and attorney’s fees, and in failing to assess attorney’s fees and penalties

for late payments of workers’ compensation benefits. With respect to the other

assignments of error, Mr. Arnold asserts that the workers’ compensation judge erred

as a matter of fact. He requests that we reverse and remand for the taking of further

evidence on certain points.

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In general, an appellate court is to review rulings issued in workers’

compensation matters according to the manifest error—clearly wrong standard, set

forth by the Louisiana Supreme Court in Banks v. Industrial Roofing & Sheet Metal

Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. Moreover, where errors of law are

asserted on appeal, the appellate court must determine whether the workers’

compensation judge’s ruling was legally correct. See McClain v. Pinecrest

Development Center, 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112.

Failure to Find that Mr. Arnold was Injured in the Course and Scope of his
Employment and was Therefore Entitled to Temporary Total Disability Benefits

In his first assignment of error, Mr. Arnold alleges that the workers’

compensation judge ruled contrary to the parties’ pre-hearing stipulation as to the

nature of the accident and entitlement to disability benefits when he failed to find that

Mr. Arnold sustained a work-related injury and was entitled to temporary total

disability benefits. Our examination of the record does not support Mr. Arnold’s

contentions. At the disputed-claim hearing, Wal-Mart did not contest Mr. Arnold’s

assertions that he sustained a work-related injury, and it did not dispute his entitlement

to weekly compensation benefits. Therefore, this issue was not among those to be

decided by the workers’ compensation judge. Moreover, the ruling and the written

reasons for judgment do not state that Mr. Arnold did not sustain a work-related

accident or that he is not entitled to disability. This assignment is without merit.

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Failure to Employ the Correct Standard in Determining Entitlement to Penalties and
to Attorney’s Fees; Penalties for Delay in Payment of Benefits

Mr. Arnold asserts that the workers’ compensation judge erred in employing

the “arbitrary and capricious” standard, set forth in Williams v. Rush Masonry, Inc.,

98-2271 (La. 6/29/99), 737 So.2d 41, in determining whether Wal-Mart’s conduct in

handling his claims warranted the imposition of penalties and attorney’s fees. He

maintains that the correct standard is found in Brown v. Texas-LA Cartage, Inc., 98-

1063, p. 8 (La. 12/1/98), 721 So.2d 885, 889, viz., that where benefits payments are

late, penalties will be imposed unless “the employee’s rights to benefits were

reasonably controverted by the employer or his insurer or the nonpayment resulted

from conditions over which the employer or insurer had no control.”

In its recent decision in Fontenot v. Reddell Vidrine Water Dist., 02-0439 (La.

1/14/03), 836 So.2d 14, the Louisiana Supreme Court revisited the issue of the proper

standard to be employed in determining whether penalties and attorney’s fees are

appropriate where workers’ compensation benefits have not been timely paid. In

Fontenot, the supreme court reiterated its prior statements that the 1983 amendment

of La.R.S. 23:1201 interpolated penalty provisions into the statutory language which

replaced the arbitrary and capricious standard for the award of penalties
to one of assessing penalties for untimely payment unless the employees
[sic] rights to benefits were reasonably controverted by the employer or
his insurer or the nonpayment resulted from conditions over which the
employer or insurer had no control.

Fontenot, 02-0439, p. 9 (La. 1/14/03), 836 So.2d 14, 21. The supreme court has

interpreted “reasonably controverted” to mean that “the defendant must have some

valid reason or evidence upon which to base his denial of benefits.” Brown, 721

So.2d at 890. More specifically, the Court explained,

[The] court must ascertain whether the employer or his insurer engaged
in a nonfrivolous legal dispute or possessed factual and/or medical

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information to reasonably counter the factual and medical information
presented by the claimant throughout the time he refused to pay all or
part of the benefits allegedly owed.

Id. It is important to note that, for the purposes of the instant appeal, the key

difference between the “arbitrary and capricious” standard used by the workers’

compensation judge and the “reasonably controverted” standard is one of nature of the

employer’s conduct. Mr. Arnold claims that certain compensation payments were not

timely made, and therefore, La.R.S. 23:1201 is applicable; however, Wal-Mart argues

that the payments in controversy were partially discontinued, thereby triggering the

application of the “arbitrary and capricious” standard that, according to Brown, 721

So.2d at 889-90, still applies in cases of discontinued benefits under La.R.S.

23:1201.2.

Based upon our examination of the record, we find that the workers’

compensation judge erred in employing the “arbitrary and capricious” standard in his

evaluation of Mr. Arnold’s claims. The record indicates that on two occasions, Mr.

Arnold’s compensation checks were $100 short, and, within a month of these

occurrences, when the mistake was brought to Wal-Mart’s attention, it immediately

mailed Mr. Arnold a check for the difference. In our opinion, this $200 in benefits

was paid late, thereby triggering La.R.S. 23:1201 and the “reasonably controverted”

standard. It is clear from the record that Mr. Arnold received regular benefits checks,

and, as such, they were never “discontinued.”

It is apparent from the record that Wal-Mart insisted that a clerical error was the

cause of Mr. Arnold’s deficient payments. Nevertheless, Wal-Mart did not produce

any evidence at trial that tended to show that the clerical error resulted from

circumstances beyond its control, and it did not otherwise sufficiently controvert Mr.

Arnold’s arguments with respect to this issue. As such, the workers’ compensation

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judge erred in not awarding Mr. Arnold attorney’s fees and penalties as a result of the

late benefits payments. Accordingly, we remand the portion of this matter related to

the two insufficient payments to the Office of Workers’ Compensation for calculation

of penalties pursuant to La.R.S. 23:1201(F). Furthermore, on remand, the workers’

compensation judge shall assess a reasonable attorney’s fee in this regard. For work

performed on appeal in the pursuit of this claim, we award Mr. Arnold $2000.

In a related assignment of error, Mr. Arnold contends that the workers’

compensation judge neglected to assess penalties against Wal-Mart for its tardy

guarantee of surgery. He asserts that Dr. Cobb recommended surgery in his initial

report, dated January 10, 2001, and Wal-Mart had sixty days in which to approve this

surgery. However, Mr. Arnold claims, Wal-Mart did not approve the surgery until

October 3, 2001, nearly nine months later. He insists that the workers’ compensation

judge should have assessed penalties and attorney’s fees against Wal-Mart for its

belated approval of the surgery.

The workers’ compensation judge noted in his ruling that “the delay in

authorizing the surgery recommended by Dr. Cobb was reasonable under the

circumstances, and was by no interpretation of the definition arbitrary and capricious

conduct on the part of [Wal-Mart].” Again, we find that the workers’ compensation

judge mistakenly applied the “arbitrary and capricious” standard to this late-

authorization scenario instead of the “reasonably controverted” standard. In its post-

trial memorandum, Wal-Mart noted that after it received word that Dr. Cobb had

recommended surgery, it decided to “[exercise] its statutory right to have a second

surgical exam and opinion provided by a doctor of its choice.” Wal-Mart further

explained that the circumstances surrounding its delayed approval of surgery were

“out of [its] control:” for example, it had to work around both Dr. Lea’s and Dr.

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Cobb’s “busy schedules” in setting appointments and scheduling the surgery itself.

We find no manifest error in the workers’ compensation judge’s conclusion that the

delay in authorizing surgery was reasonable. Although the workers’ compensation

judge applied the “arbitrary and capricious” standard in determining that Wal-Mart

was not accountable for attorney’s fees and penalties in this instance, we find that the

overall result is correct. This assignment of error requires no action by this court.

In yet another related assignment of error, Mr. Arnold alleges that the workers’

compensation judge erred in failing to order Wal-Mart to pay Jeff Davis Radiology

and Jeff Davis Diagnostics for MRI services rendered in conjunction with this matter.

Mr. Arnold asserts that he sent letters requesting payment, together with copies of the

bills, to Wal-Mart on May 21, June 25, and September 5, 2001, all of which were

ignored. He contends that, pursuant to La.Code Civ.P. art. 105, payment is an

affirmative defense that must be pleaded, and Wal-Mart failed to plead payment. As

such, he argues, he is entitled to penalties and attorney’s fees.

We cannot divine from the record that Wal-Mart’s failure to pay Mr. Arnold’s

MRI bills constituted a “discontinuation” of benefits such that the workers’

compensation judge was correct in applying the “arbitrary and capricious” standard.

As Wal-Mart argues in its response to Mr. Arnold’s appeal, the record does not show

that Mr. Arnold specifically raised the issue of an unpaid MRI bill in his pre-trial

statement or in the answers that he provided to Wal-Mart’s interrogatories. Because

the unpaid MRI bill was first mentioned at the disputed-claim hearing, and because

Wal-Mart was not given the opportunity to obtain and produce any evidence showing

whether or when said bill had been paid, this issue was not properly before the court,

and we find no error in the workers’ compensation judge’s refusal to award penalties

and attorney’s fees in this regard.

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Failure to Include Fringe Benefits in the Calculation of Mr. Arnold’s Average Weekly
Wage and Failure to Assess a Penalty for Improper Payment of Weekly Benefits

Mr. Arnold contends that the workers’ compensation judge erred in determining

that Wal-Mart had properly calculated his average weekly wage (hereinafter

“AWW”). Mr. Arnold claims that Wal-Mart omitted several fringe benefits in its

calculation of his AWW, namely, holidays, sick days, vacation time, profit

sharing/401(k) contributions, allowances for resource for living, and medical benefits.

He requests that we remand on this issue with instructions to include these items in

re-calculating his wage.

In his written reasons for judgment, the workers’ compensation judge stated that

according to Wal-Mart policy, profit-sharing and 401(k) benefits vest in employees

after one year’s service to the company, and such benefits were properly excluded

from the calculation of Mr. Arnold’s AWW. (The record indicates that Mr. Arnold

had worked for Wal-Mart for a little over nine months when his accident occurred.)

The workers’ compensation judge noted that Wal-Mart had calculated Mr. Arnold’s

AWW by using his actual gross income, as well as earned wages from Wal-Mart’s

stock-option program, in which he participated. The judge found that Wal-Mart did

not include any fringe benefits upon which Mr. Arnold did not pay federal income tax.

Support for Mr. Arnold’s position with respect to this matter is found in Belaire

v. Don Shetler Olds Buick Chevrolet, 02-1152 (La.App. 3 Cir. 6/4/03), 847 So.2d 723,

in which a panel of this court held that an employee who was injured before benefits

vested was nonetheless entitled to their inclusion in calculation of his average weekly

wage because the parties had contemplated that such benefits would vest as part of the

employment contract between them. However, in the present case, the record does not

indicate that Mr. Arnold and Wal-Mart entered into a written contract of employment.

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There is no guarantee that Mr. Arnold, as an at-will employee, would be with the

company long enough to receive the benefits that he asserts should be included in

calculations of his average weekly wage.

With respect to Mr. Arnold’s argument that medical benefits should have been

included in the calculation of his average weekly wage, we note that Mr. Arnold’s

accident occurred in 2000, and, at the time of his accident, La.R.S. 23:1021(10)(f) did

not include its current provision for inclusion of medical benefits. The language upon

which Mr. Arnold relies in his claim for their inclusion, “including but not limited to

any amount withheld by the employer to fund any health insurance benefit provided

by the employer and which was elected by the employee in lieu of taxable earnings

shall be included in the calculation of the employee's wage and average weekly wage,”

was added in 2001.

In Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992), the Louisiana Supreme

Court held that the law in effect at the time of the injury governs an employee’s

compensation claim. We have been able to discern from Moses v. Grambling State

University, 33,185 (La.App. 2 Cir. 5/15/00), 762 So.2d 191, writ denied, 00-1769 (La.

9/22/00), 768 So.2d 7285, that a jurisprudential rule was in effect in 1998 that allowed

an employee to include employer-paid health insurance benefits in calculating his

average weekly wage. However, this rule changed in 1999, when La.R.S.

23:1021(10)(f) was enacted. In its original form, La.R.S. 23:1021(10)(f) stated as

follows:

In the determination of “wages” and the average weekly wage at the time
of the accident, no amount shall be included for any benefit or form of
compensation which is not taxable to an employee for federal income tax
purposes; however, any amount withheld by the employer to fund any
non-taxable or tax deferred benefit provided by the employer and which
was elected by the employee in lieu of taxable earnings shall be included
in the calculation of the employee’s wage and average weekly wage.

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This version of La.R.S. 23:1021(10)(f) was in effect in 2000, at the time of Mr.

Arnold’s accident. Later, in 2001, La.R.S. 23:1021(10)(f) was amended, and the

following language was added to the end of the existing text:

including but not limited to any amount withheld by the employer to
fund any health insurance benefit provided by the employer and which
was elected by the employee in lieu of taxable earnings shall be included
in the calculation of the employee’s wage and average weekly wage.

The law in effect at the time of Mr. Arnold’s accident did not allow health benefit

premiums not taxable to the employee to be included in the calculation of average

weekly wage.

Moreover, our examination of the Wal-Mart Associates Handbook reveals that

similar vesting requirements exist for vacation time and similar fringe benefits. The

workers’ compensation judge’s ruling on this issue is correct. This assignment is

without merit.

Failure to Assess Back Weekly Compensation Benefits Due Wilbert Arnold as a Result
of the Miscalculation of Mr. Arnold’s Average Weekly Wage and Workers’
Compensation Rate

Mr. Arnold further argues that the workers’ compensation judge erred in failing

to require Wal-Mart to pay back benefits occasioned by the improper calculation of

his average weekly wage. He contends that such improper calculation resulted in

deficiency in benefits that should have been awarded him at the disputed claim

hearing. He requests that we remand for proper calculation of his average weekly

wage and so that the workers’ compensation judge might assess back benefits

accordingly. Because we have determined that Mr. Arnold’s average weekly wage

was properly calculated, we do not address this particular assignment of error.

Failure to Order Wal-Mart to Pay for the Prescription Ordered by Dr. Mitchell and
Failure to Impose Related Penalties

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Mr. Arnold contends that the workers’ compensation judge committed error in

not ordering Wal-Mart to pay for a prescription for his work-related injury, prescribed

by Dr. Mitchell, and likewise erred in not imposing penalties for this failure.

According to Mr. Arnold’s testimony at the disputed-claim hearing, he had attempted

to fill a prescription for medicine for his work-related injury at the Wal-Mart

pharmacy, but his prescription was rejected by the workers’ compensation insurer.

Mr. Arnold complains that the workers’ compensation judge did not penalize Wal-

Mart and CMI in connection with this rejection.

At the disputed-claim hearing on the matter, Mr. Arnold introduced a copy of

the prescription rejection notice as Plaintiff’s Exhibit 8. This rejection notice, dated

04/25/2001, bears the phrase, “COVERAGE TERMINATED,” indicating that the

prescription was rejected by Wal-Mart’s insurer.

On appeal, Wal-Mart argues that this aspect of Mr. Arnold’s claim was

introduced on the morning of trial and that consequently, it did not have the

opportunity to prepare rebuttal evidence. However, in its brief, Wal-Mart asserts that

“there was no medical evidence from Dr. Marshall discussing this prescription, what

is [sic] was for, and how it was related to the claimant’s work accident,” and maintains

that, in any event, it had not arbitrarily and capriciously denied Mr. Arnold’s claim.

In this instance, because Mr. Arnold had received prescription benefits prior to

this “termination,” the proper inquiry, pursuant to La.R.S. 23:1201.2, is whether Wal-

Mart arbitrarily and capriciously discontinued benefits that were “due and arising.”

The burden of proof in such inquiries is on Mr. Arnold to show that this medication

was prescribed for his work-related accident, that payment for the medication was

“due and arising,” and that Wal-Mart arbitrarily and capriciously refused payment.

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The record is void of any evidence that would tend to show whether Mr. Arnold’s

workers’ compensation benefits properly included payment for the rejected

prescription. We do not find that the workers’ compensation judge committed

manifest error with respect to this particular issue.

Failure to Order Wal-Mart to Pay for the Mileage Submitted on January 31, 2001 and
to Assess a Corresponding Penalty

Mr. Arnold asserts that the workers’ compensation judge erred in failing to

order Wal-Mart to reimburse him for mileage detailed in a letter dated January 31,

2001, and for failing to assess a corresponding penalty and attorney’s fees against

Wal-Mart.

Louisiana Revised Statutes 23:1203(D) provides, in pertinent part, that:

[T]he employer shall be liable for the actual expenses reasonably and
necessarily incurred by the employee for mileage reasonably and
necessarily traveled by the employee in order to obtain the medical
services, medicines, and prosthetic devices, which the employer is
required to furnish under this Section . . . . When the employee uses his
own vehicle, he shall be reimbursed at the same rate per mile as
established by the state of Louisiana for reimbursement of state
employees for use of their personal vehicle on state business.

In the instant matter, no evidence was produced that showed that CMI had received

Mr. Arnold’s request for mileage. The record reflects that in another instance in

which Mr. Arnold requested reimbursement for mileage, he was repaid. In the

absence of this type of proof of demand, we find no error in the workers’

compensation judge’s denial of penalties and attorney’s fees. Furthermore, although

the workers’ compensation judge applied the “arbitrary and capricious” standard in

determining that Wal-Mart was not accountable for attorney’s fees and penalties in

this instance, we again find that the result is correct. This assignment of error requires

no action by this court.

Failure to Award Attorney’s Fees Due and Expenses

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Mr. Arnold asserts that the workers’ compensation judge erred in failing to

award attorney’s fees and expenses incurred in the prosecution of this matter.

Pursuant to La.R.S. 23:1201, he argues, Wal-Mart is responsible for paying such fees

and expenses.

Mr. Arnold is not entitled to attorney’s fees and expenses with respect to those

findings of the workers’ compensation judge that we have affirmed in this opinion.

As stated above, however, we remand for calculation of penalties and attorney’s fees

associated with the two payments that were deficient. These calculations are to be

made pursuant to La.R.S. 23:1201(F) and Brown, 721 So.2d 885.

Dismissal With Prejudice

Mr. Arnold argues that the workers’ compensation judge erred in dismissing his

case with prejudice. Because we have determined that the issue of whether the trial

court erred in failing to order Wal-Mart to pay the MRI bill was not properly before

the court, we agree. The workers’ compensation judge erred in dismissing Mr.

Arnold’s claim with prejudice when, due to the timing of two of Mr. Arnold’s

particular allegations, Wal-Mart had not had sufficient opportunity to gather evidence

in its defense. In his written reasons for ruling, the workers’ compensation judge

stated, in pertinent part, that “IT IS FURTHER ORDERED AND DECREED that the

disputed workers’ compensation claim of Wilbert Arnold is without merit, and the

same is hereby dismissed with prejudice and at Claimant’s cost.” Insofar as this

language constitutes a blanket dismissal of Mr. Arnold’s claims, the workers’

compensation judge’s ruling with respect to the adjudication of the MRI claims was

improper. Moreover, we reverse the determination of dismissal with respect to the

$200 deficiency in Mr. Arnold’s benefit payments, which we remand for reasons

stated above. As to Mr. Arnold’s remaining claims, the dismissal with prejudice was

not in error.

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DECREE

For the foregoing reasons, the workers’ compensation judge’s ruling denying

Mr. Arnold’s requests for relief and dismissing his claim with prejudice is affirmed

in part and reversed in part. We award $2000 to Mr. Arnold for attorney’s fees on

appeal, and we remand for calculation of penalties and attorney’s fees for the two

deficient compensation payments. One-half of the costs of this proceeding are

assigned to the plaintiff, Wilbert Arnold, and the remaining costs are assigned to Wal-

Mart.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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