Opinion
CLAIM NO. D402747
OPINION FILED OCTOBER 7, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FLOYD M. THOMAS, JR., Attorney at Law, El Dorado, Arkansas.
Respondent represented by the HONORABLE JOHN D. DAVIS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on April 1, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that medical treatment that she received on November 4, 1993, and on April 21, 1994, was reasonably necessary for treatment of her compensable injury. In addition, the administrative law judge found that the claimant's claim for additional compensation filed on or about May 24, 1995, is barred by the Statute of Limitations.
After a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that the medical treatment received on November 4, 1993, on April 21, 1994, on December 15, 1994, and on March 31, 1995, was reasonably necessary for treatment of her compensable injury. In addition, we find that the respondents failed to prove by a preponderance of the evidence that the claimant's claim for additional compensation filed on May 25, 1995, is barred by the Statute of Limitations. Therefore, we find that the administrative law judge's decision must be reversed.
The Statute of Limitations is an affirmative defense which the respondent bears the burden of proving by the preponderance of the evidence. Consequently, while the claimant bears the burden of filing a claim for compensation within the limitations period, she is not required to prove that she filed in time; instead, the respondent must prove that she did not file in time.See, Margie Grant v. Penn Athletic,, Full Worker's Compensation Commission, May 27, 1992 (Claim No. D411709); George Hastings v. Marianna Motor Company, Full Workers' Compensation Commission, June 11, 1986 (Claim No. D206442); Ellis Williams v. Bituminous, Inc., Full Workers' Compensation, Sept. 23, 1985 (Claim Nos. B915325 C162509).
The Statute of Limitations for a claim for additional compensation is set forth in Ark. Code Ann. § 11-9-704(b) (1987). This subsection provides that claims for "additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation or two (2) years from the date of the injury, which ever is greater." The furnishing of medical treatment constitutes compensation for the purposes of this statute. In addition, it is the furnishing of medical treatment, not the actual payment for those services, which constitutes the payment of compensation for the purposes of this statute. Heflin v. Pepsi Cola Bottling Co., 195 Ark. 244, 424 S.W.2d 365 (1969); Cheshire v. Foam Molding, 37 Ark. App. 78, 822 S.W.2d 412 (1992). Thus, the key is that the employer must furnish the medical treatment in order to toll the limitations period. See, McFall v. U.S. Tobacco Co., 246 Ark. 43, 434 S.W.2d 838 (1969). Consequently, the receipt of medical treatment is not sufficient, standing alone, to prevent the Statute of Limitations from barring a claim. Instead, it must be shown that the employer furnished the medical services. However, where a respondent furnishes medical treatment and has either actual or constructive knowledge that the claimant is receiving medical treatment or that the claimant will require further medical treatment, the respondent continues to furnish medical treatment until it communicates to the claimant that it is controverting the claimant's entitlement to further medical treatment. Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994); see also,Safeway Stores, Inc. v. Lamberson, 5 Ark. App. 191, 634 S.W.2d 396 (1982).
However, the furnishing of medical treatment constitutes compensation only if the treatment is reasonably necessary for treatment of the compensable injury. Northwest Tire Service v. Evans, 295 Ark. 246, 748 S.W.2d 134 (1988). In that regard, injured employees and medical service providers have the burden of proving by a preponderance of the evidence that medical treatment and associated charges are reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers' Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the procedure and the condition it is utilized to remedy. Deborah Jones v. Seba, Inc., Full Workers' Compensation Commission, Dec. 13, 1989 (Claim No. D511255). Also, respondents are only responsible for medical services which are causally related to the compensable injury.
In the present claim, the claimant sustained an admittedly compensable injury on January 14, 1984, when she was struck in the right elbow with a piece of wood. According to an opinion and order filed by the administrative law judge on March 12, 1993, Dr. Kenneth Martin performed surgery on the claimant's right elbow in 1986. The claimant's elbow problems persisted, and Dr. Martin referred the claimant to Dr. Michael Moore, who eventually referred the claimant to Dr. Marsha Hixson at the University of Arkansas for Medical Sciences (UAMS). Dr. Hixson performed additional surgery on the claimant's right elbow, including a cubital tunnel release, in October of 1988, and again in February of 1989. However, the claimant's problems persisted, and the parties stipulated that the claimant's healing period ended on October 11, 1991.
Dr. Hixson's report from October 11, 1991, indicates that the claimant was at that time working for the respondent in a job with very limited pushing and pulling, and no lifting. Dr. Hixson indicated that she did not expect the claimant's condition to change for the better or the worse. At that time, the claimant had pain in her right arm most of the time which was controlled with a TENS unit which she wore both at home and at work. Dr. Hixson assigned the claimant a permanent impairment rating on October 25, 1991, and that impairment rating indicated that the claimant sustained a shoulder injury as well as an elbow injury. Dr. Hixson's impairment rating for a purported shoulder injury, in addition to an admittedly compensable elbow injury, ultimately led to a hearing on August 20, 1992, and the opinion and order filed on March 12, 1993, wherein the administrative law judge found that the claimant did not sustain a right shoulder injury in addition to the admittedly compensable right elbow injury. The administrative law judge's decision was clearly based on deposition testimony from Dr. Hixson that the claimant suffered from "cubital tunnel syndrome" which is an entrapment of the ulnar nerve at the elbow.
Although Dr. Hixson's October 11, 1991, office note indicated that the claimant was to return to UAMS in three months, the claimant actually returned approximately five months later, on March 27, 1992. At that time, the claimant and Dr. Hixson discussed the claimant's failed attempt to change job duties to operating a fork lift. In addition, Dr. Hixson tested the claimant's arm and determined that the claimant's physical condition remained essentially unchanged. Dr. Hixson's office note from that date indicates that the claimant was advised to return to the clinic on an as needed basis. The claimant did return five months later, on August 7, 1992, at which time Dr. Hixson took grip measurements, discussed the nature of the claimant's pain with the claimant, and concluded that the claimant's condition remained essentially unchanged. Again Dr. Hixson released the claimant to return to the clinic on an as needed basis.
In January of 1993, the claimant enrolled in college to become an elementary school teacher. However, the claimant presented to Dr. Hixson on May 21, 1993, indicating that college required writing which caused her to lean on her right elbow. Dr. Hixson indicated that the claimant was having some involvement with the ulnar nerve, and she prescribed a splint and medication. In addition, Dr. Hixson advised the claimant to return to the clinic in six months or sooner if her problems persisted.
The claimant presented back to UAMS on November 4, 1993, and on this occasion she was examined by Dr. James C. Yuen, another orthopedist on the UAMS staff. Dr. Yuen's examination again indicated elbow tenderness and limited range of motion with no appreciable Tinel. On an additional follow-up examination performed on April 21, 1994, approximately six months later, Dr. Yuen found the claimant experiencing only slight pain around the cubital tunnel area with tenderness and a Tinel sign at the Guyon's canal. An additional follow-up examination performed by Dr. Yuen on December 15, 1994, indicated continued sensitivity in the cubital tunnel region, and pain developing in the right shoulder.
Dr. Hixson reexamined the claimant on March 31, 1995. Her examination indicated that the claimant's ability to lift, pull or push had not changed significantly since her last examination. According to Dr. Hixson, the claimant continued to use her TENS unit for pain control, and the claimant's range of motion and grip strength on the right remained impaired at approximately the same levels as previously measured. Moreover, the claimant's complaints through March 31, 1995, were consistent with pain and irritation from the right elbow to the right shoulder along the course of the ulnar nerve.
After reviewing the record, we find that the medical treatment that the claimant received at UAMS on November 4, 1993, on April 21, 1994, on December 15, 1994, and on March 31, 1995, was reasonably necessary for treatment of her compensable injury. In that regard, the evidence establishes that the claimant has undergone multiple right elbow surgeries, including two surgeries for cubital tunnel release performed by Dr. Hixson in October of 1988 and February of 1989. Although the claimant returned to work in April of 1989, Dr. Hixson indicated that the claimant did not reach maximum medical improvement until October of 1991, approximately 2 and 1/2 years later. Moreover, the medical evidence indicates that the claimant has continued to experience persistent symptoms of pain, irritation, and limited range of elbow motion associated with her cubital tunnel syndrome even after October of 1991. The claimant testified that Dr. Hixson continues to prescribe medication. Although the claimant may no longer require a splint or sling, Dr. Hixson's 1995 note indicates that the claimant still requires a TENS unit to control her upper extremity pain. In addition, the medical evidence indicates that the claimant received an examination, a diagnosis, and some proposal for treatment or for additional follow up during each of the disputed office visits. Moreover, no physician at UAMS has ever indicated that UAMS has nothing left to offer the claimant, and at the end of each disputed visit the claimant was either told to return as needed or to return in six months. Therefore, after considering the nature of the compensable injury sustained by the claimant, the nature of her complications and persistent symptoms associated with that injury, and the nature of the medical care provided for that injury during office visits at UAMS on November 4, 1993, on April 21, 1994, on December 15, 1994, and on March 31, 1995, we find that the medical care provided on each of these dates was reasonably necessary for treatment of the claimant's compensable injury.
In reaching our decision, we note that the claimant acknowledged in her testimony that her former attorney told her to go to the doctor at least once every six months until her workers' compensation claim was "either closed out or joint petitioned." We also note that four years had elapsed between the claimant's last elbow surgery in 1989 and her disputed care beginning in 1993. In addition, we note that nearly ten years elapsed between the compensable injury in 1984 and the disputed medical care in 1993. In that regard, we recognize that at some point the claimant will not be entitled to additional care for her compensable injury. Nevertheless, we find that the follow-up examinations on the claimant's elbow to date have been reasonably necessary for treatment of her compensable injury in light of multiple surgeries and persistent symptoms. In reaching our decision, we note that the claimant's testimony suggests that she would probably not seek follow up at six month intervals were it not for her pending workers' compensation claim. However, the issue is whether the claimant is entitled to follow up at approximately six month intervals. Based on the nature of her injury and her persistent symptoms, we find that she is entitled to compensation for the routine examinations performed at UAMS that are in dispute.
With regard to the Statute of Limitations issue, the evidence establishes that the respondent paid for the claimant's UAMS visit on May 21, 1993, but the respondent has not paid for any of the claimant's medical treatment after the office visit on May 21, 1993. In that regard, Mr. Perry Crowder, the collection coordinator for Medical College Physicians Group (UAMS), testified that payment for the May 21, 1993, office visit was received from the respondent on September 8, 1993. According to Mr. Crowder, there was no charge billed for the claimant's visit to Dr. Yuen on November 4, 1993, and therefore the respondent would not have received a bill for that office visit. According to Mr. Crowder, both the claimant and the respondent would have received a one-time statement for the $19.00 billed to the respondent for the April 21, 1994, office visit, and then the claimant would receive a statement each month thereafter if the $19.00 bill had not been paid by the respondent. Mr. Crowder testified that UAMS did not receive a response from the respondent regarding the bill for $19.00 until UAMS was copied on a letter from the respondent to the claimant dated May 18, 1995, notifying the claimant that the respondent would not pay any additional medical bills because the Statute of Limitations had run on her workers' compensation benefits.
The claimant testified that she did not become aware that the respondent intended to stop paying for follow-up treatment at UAMS until she received her copy of the May 18, 1995, letter from the respondent notifying her that the respondent would not be paying any additional bills on her behalf because the Statute of Limitations had run. The claimant filed the present claim on May 24, 1995.
After a de novo review of the entire record, we find that the respondent failed to prove by a preponderance of the evidence that the Statute of Limitations bars this claim. As discussed, the respondents paid for the claimant's medical treatment through May 21, 1993, and Dr. Hixson's note from that date indicates that the claimant was to return in six months. Therefore, the respondents were at least on constructive notice, and had actual notice if they requested and received a copy of Dr. Hixson's May 21, 1993, note, that the claimant would continue to require medical treatment. The respondent has acknowledged receiving a bill for the claimant's April 21, 1994, medical treatment on May 10, 1994, and the respondent did not notify the claimant that they would no longer furnish her medical treatment until at least May 18, 1995. Then, on May 24, 1995, the claimant filed the present claim.
Consequently, we find that the respondent continued to furnish medical treatment to the claimant until they informed her that they would not continue to do so sometime after May 18, 1995. See Plante v. Tyson Foods, Inc, 319 Ark. 126, 890 S.W.2d 253 (1994); Safeway Stores, Inc. v. R. Lee Lamberson, 5 Ark. App. 191, 634 S.W.2d 396 (1982); Diane Jack v. Around the World, Full Workers' Compensation Commission, June 15, 1995 (Claim No. D916900). Therefore, since the present claim was filed with the Commission within one year of that date, we find that the respondent failed to proved by a preponderance of the evidence that the Statute of Limitations bars this claim.
Accordingly, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that the medical treatment received at UAMS on November 4, 1993, on April 21, 1994, on December 15, 1994, and on March 31, 1995, was reasonably necessary for treatment of her compensable injury. In addition, we find that the respondent failed to prove by a preponderance of the evidence that the Statute of Limitations bars this claim. Consequently, we find that the administrative law judge's decision must be, and hereby is, reversed.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (1987). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715(b) (1987).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion which finds that the claimant proved by a preponderance of the evidence that medical services received on November 4, 1993 and on April 21, 1994 was reasonably necessary for the treatment of her compensable injury. In addition, I would affirm the Administrative Law Judge's finding that the claimant's claim is barred by the statute of limitations.
The claimant sustained an injury in the course and scope of her employment with respondent on January 17, 1984 when she was struck in the elbow by a piece of wood. The injury was accepted as compensable by the respondent and benefits were paid accordingly. On October 25, 1991, Dr. Marcia Hixson at UAMS assigned the claimant a permanent impairment rating. The last medical expenses paid by the respondent were a visit by the claimant to Dr. Hixson on May 21, 1993. No workers' compensation benefits have been paid to or on behalf of the claimant since the May 21, 1993 visit to Dr. Hixson at UAMS.
The claimant was seen by Dr. James Yuen on November 4, 1993, on April 21, 1994, and again on December 15, 1994. The claimant testified that she went to UAMS on November 4, 1993 and April 21, 1994 because her attorney told her to go to the doctor at least every six months until her workers' compensation claim was "closed out or joint petitioned or something was settled on it".
I find that the claimant has failed to establish by a preponderance of the evidence that medical treatment on November 4, 1993 and April 21, 1994 was reasonably necessary and the respondent should not be obligated to pay for it. In my opinion, neither visit tolled the statute of limitations. Under the provisions of Ark. Code Ann. § 11-9-702(b), a claimant has one year from the date of the last payment of compensation to file for additional compensation otherwise her claim will be barred. Since neither the November 4, 1993 visit or the April 21, 1994 visit tolled the statute of limitations, the claimant went for a period of over one year after the last payment of compensation without receiving workers' compensation benefits or filing a claim for additional benefits.
The claimant asserts that the respondent is estopped from raising the statute of limitations because it did not give the Workers' Compensation Commission notice of final payment under Ark. Code Ann. § 11-9-810. The claimant did not introduce any proof into the record that the notice under Ark. Code Ann. § 11-9-810 was not filed with the Commission in a timely manner. While claimant was not charged for the visit on November 3, 1993, she was charged for the April 21, 1994 visit. A statement was sent to the claimant and respondent for this period. Perry Crowder, the collection coordinator of the patient accounts for UAMS physicians, testified that the claimant was sent a statement every month after April 21, 1994 showing that payment has not been made by the respondent for the April 21, 1994 UAMS visit.
The purpose of the statute of limitations in workers' compensation cases is to permit a claimant's injuries to be properly investigated and treated. Woodard v. ITT Higbie Mfq. Co., 271 Ark. 498, 609 S.W.2d 115 (Ark.App. 1980). The burden of filing a claim for additional benefits within the statute of limitations is upon the claimant. Petit Jean Air Service v. Wilson, 251 Ark. 871, 475 S.W.2d 531 (1972). The scheduling of medical appointments by a claimant or her lawyer for the purpose of keeping a claim open until it can be settled, defeats the legitimate purpose of the statute of limitations. The visit by the claimant to UAMS on November 4, 1993 and April 21, 1994 for the purpose of trying to defeat the statute of limitations, did not toll the statute. The claimant failed to file a claim for additional benefits within the statute of limitations. Based on my de novo review, I find that the claim for additional benefits should be denied. I respectfully dissent from the majority opinion.
ALICE L. HOLCOMB, Commissioner