concurring. I agree that Arkansas Code Annotated § 11-9-715 (a) (4) (Repl. 2002), as amended by Act 1281 of 2001, requires the result we reach in this case. However, I write separately to emphasize the inequity of the current workers’ compensation scheme, which awards attorney’s fees for controverted indemnity benefits but completely insulates employers and workers’ compensation insurers from liability for attorney’s fees incurred for obtaining controverted medical benefits. The inequity of this scheme should not be ignored, particularly because it cuts against the long-recognized rationale under Arkansas workers’ compensation law supporting how and why attorney’s fees are paid in controverted cases.
It is no secret that the skyrocketing cost of medical treatment has become a national concern. Furthermore, the workers’ compensation scheme was never intended to force injured workers to bear the total risk for obtaining reasonable medical attention and services for compensable injuries. The obligation to provide prompt and reasonably necessary medical treatment and services to an injured worker is imposed by law on an employer; just as it is the employer’s duty to promptly and accurately provide indemnity benefits for periods of disability, the employer is obligated to promptly provide reasonably necessary medical treatment. Ark. Code Ann. § 11-9-508 (Supp. 2003).
Workers’ compensation was not intended to be a litigious scheme; rather, it was intended to provide a means by which injured workers would receive compensation without resorting to litigation. Thus, it is well-settled that one purpose for allowing for the recovery of attorney’s fees is to place the burden of litigation expense onto the party that made litigation necessary. See Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976); Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). While the fee goes to the attorney, the benefit is to the claimant who has been forced to obtain an attorney to receive benefits for an injury that the Commission ultimately determines to be compensable. Tyson Foods, Inc. v. Fatherree, 16 Ark. App. 41, 696 S.W.2d 782 (1985) (noting that permitting attorney fees on the controverted portion of workers’ compensation claims gives a claimant the ability to obtain adequate and competent legal representation in defense of award as well as in obtaining the award). Further, making an employer who has controverted a claim liable for the employee’s attorney’s fees serves the legitimate social purposes of discouraging oppressive delay in recognition of liability and deterring the arbitrary or capricious denial of claims. Id. Under the prior law, attorney’s fees were simply calculated based on the amount controverted and awarded. See Varnell v. Union Carbide, 29 Ark. App. 185, 779 S.W.2d 542 (1989).
For approximately sixty years — from the adoption of our first workers’ compensation act in 1939 until the passage of Act 1281 in 2001 — we recognized these legitimate social purposes by awarding attorney’s fees, as a benefit to the worker, for controverted indemnity, medical, and rehabilitative benefits, where the worker was required to secure an attorney in order to obtain benefits. See, e.g., Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979) (awarding attorney’s fees where the employer controverted claims for nursing services, therapy equipment, mileage, and medical benefits); Garner v. American Can Co., 246 Ark. 746, 440 S.W.2d 210 (1969) (awarding attorney’s fees for medical benefits); Ragon v. Great American Indem. Co., 224 Ark. 387, 273 S.W.2d 524 (1954) (awarding attorney’s fees based on medical services, hospitalization, and a percentage of the cash awarded to the claimant); Harvest Foods v. Washam, su-pra (awarding attorney’s fees where claimant received indemnity benefits); Owens Country Sausage v. Crane, 268 Ark. 732, 594 S.W.2d 872 (Ark. App. 1980) (awarding attorney’s fees where claimant was awarded costs of rehabilitation program).
Unfortunately, in the face of our long history of recognizing the compelling reasons for awarding attorney’s fees on all controverted benefits, with the passage of Act 1281 of2001, the Arkansas General Assembly absolved employers and workers’ compensation insurers from exposure for controverting reasonably necessary medical treatment and services. Act 1281 amended Arkansas Code Annotated § ll-9-715(a)(l) and (2)(B)(ii) to specifically limit attorney’s fees to the amount of compensation for indemnity benefits controverted and awarded. This amendment further added subdivision (a)(1)(B), which provided that “[attorney’s fees shall not be awarded on medical benefits or services except as provided in subdivision (a)(4) of this section.” Section 11-9-715(a)(4), in turn, the subsection at issue in this case, allows attorneys to recover fees for the cost of collection of disputed medical bills only if medical providers voluntarily contract to allow for the recovery of such fees.
Thus, instead of being based on whether an employer controverted the claimant’s entitlement to those benefits, the award of attorney’s fees for medical benefits is now tied to the cost of collecting payment for disputed medical bills, which shifts the cost of litigation from the employer, the party responsible for the litigation. This is not a case of robbing Peter to pay Paul; the lamentable effects of Act 1281 go well beyond that to saddle both the injured worker and medical providers with the cost of the employer’s failure to provide reasonable medical services. First, it deprives injured workers of their sole remedy of obtaining an attorney’s fee when the employer fails to pay for reasonable medical services as mandated under Arkansas law. Second, it shifts the responsibility to paying a claimant’s attorney’s fees from the employer to the party providing medical services.
The rationale for awarding attorney’s fees for all controverted benefits did not suddenly change or become less compelling in 2001, when Act 1281 was passed. The current scheme, which allows an attorney to contract for fees for the collection of disputed medical bills, is woefully inadequate to preserve the more equitable attorney’s fee benefit that claimants enjoyed under prior law. While I am obliged to follow the current law governing attorney’s fees in workers’ compensation cases, I am not obliged to ignore its inequities.