Opinion
CLAIM NO. E614047
ORDER FILED JUNE 19, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DAVID SOLOMON, Attorney at Law, Helena, Arkansas.
Respondents represented by the HONORABLE ROY C. LEWELLEN, Attorney at Law, Marianna, Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
ORDER
The respondent appeals an opinion and order filed by the Administrative Law Judge on April 30, 2001. In that opinion and order, the Administrative Law Judge found in relevant part that the statute of limitations is an affirmative defense which requires an initial burden of proof from the respondent. The Administrative Law Judge found that, because the respondent did not appear at the hearing, the respondent has waived the defense of statute of limitations.
Subsequent to the Administrative Law Judge's decision in this case, the Arkansas Court of Appeals has found that a claimant has the burden of proving that a claim for benefits was timely filed. See Aluminum Company of America v. Rollon, 76 Ark. App. 240, ____ S.W.3d ___ (2001). Because we interpret from Rollon that a claimant has the burden of proof on a statute of limitations issue, we find that the Administrative Law Judge erred as a matter of law in concluding that the statute of limitations issue raised prior to the hearing was waived simply because the respondent did not present any evidence at the hearing.
Further, we note that resolution of the statute of limitations issue presented in this case appears to turn, at least in part, on the precise language of the written claim, which the claimant testified that he filed on October 23, 1996, but which the claimant did not offer into evidence at the hearing held on March 8, 2001. See generally Ark. Code Ann. § 11-9-702(a)-(c).
We vacate the Administrative Law Judge's finding that the statute of limitations issue was waived by the respondent's nonappearance at the hearing. In addition, we remand this case to the Administrative Law Judge to take such additional action as is necessary to obtain and make a part of the record the request for additional benefits which the claimant testified that he filed on October 23, 1996. The Administrative Law Judge shall thereafter make additional findings on the statute of limitations issue presented in this case.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
CONCURRING OPINION
I concur in the principal opinion's remand of this case. I write separately to express my observations on the effect of the claimant's Form AR-C, which the principal opinion directs the Administrative Law Judge to make a part of the record, and to respond to the dissenting opinion.
The claimant was injured on September 11, 1996. He received medical treatment on September 11, 1996, September 19, 1996, and October 4, 1996. The claimant testified that he filed his claim on October 23, 1996. While not offered into evidence at the hearing, a Form AR-C is included in the Full Commission's file for this case. A date stamp on the form indicates that it was received by the Commission on October 25, 1996.
The Administrative Law Judge clearly recognized that the Statute of Limitations issue had been raised by the respondent. Pursuant to the decision in Aluminum Company of America v. Rollon, 76 Ark. App. 240, ___ S.W.3d ___ (2201), the claimant has the burden of proof on the statute of limitations issue. Therefore, the fact that the respondent did not appear at the hearing does not result in this issue being waived.
The respondent argues that this case is governed by Ark. Code Ann. § 11-9-702(a)(1), which states:
A claim for compensation for disability on account of an injury . . . shall be barred unless filed within the Workers' Compensation Commission within two (2) years from the date of the compensable injury. If, during the two-year period following the filing of the claim, the claimant receives no weekly benefit compensation and receives no medical treatment resulting from the alleged injury, the claim shall be barred thereafter. (Emphasis added.)
The respondents argue that, while the claimant did file his claim for compensation within two years from the date of injury, he received no weekly benefit compensation nor any medical treatment as a result of his alleged injury for more than two years following the filing of his claim. Consequently, the respondents argue that the claimant's claim became time-barred when the claimant did not receive any weekly benefit compensation or medical treatment during the two-year period following the filing of his claim.
I note, however, that the statutory provision which the respondents rely on applies only to claims for initial benefits. Claims for additional benefits are governed by Ark. Code Ann. § 11-9-702(b)(1) and (c) which state:
(b)(1) In cases where any compensation, including disability or medical, has been paid on account of injury, a claim 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, whichever is greater.
* * *
(c) A claim for additional compensation must specifically state that it is a claim for additional compensation. Documents which do not specifically request additional benefits shall not be considered a claim for additional compensation.
Unlike claims for initial benefits, which can become time-barred if the claimant receives no compensation or treatment in the two years following the filing of the claim, the Arkansas courts have held that a timely filed claim for additional benefits can toll the running of the limitations period indefinitely, without regard to whether or not the claimant receives weekly compensation or treatment during the two-year period following the filing of the claim. See generally, Arkansas Power and Light v. Giles, 20 Ark. App. 154, 725 S.W.2d 583 (1987); Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986); Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 675 S.W.2d 849 (1984).
Since there is no dispute that the claimant in the present case did not receive any compensation or treatment during the two-year period following the filing of his claim, this claim became time-barred two years after the claim was filed if the AR-C at issue made a claim for initial benefits subject to the provisions of Ark. Code Ann. § 11-9-702(a)(1). However, the claim never became time-barred if the AR-C at issue made a claim for additional benefits, as the term "claim for additional compensation" is defined in Ark. Code Ann. § 11-9-702(c), so that the claim would be subject to the provisions of Ark. Code Ann. § 11-9-702(b)(1). Therefore, the claimant's Form AR-C filed on October 25, 1996 must be made a part of the record and reviewed to decide the statute of limitations issue in this case.
As I compare the Form AR-C in the Commission file to the definition of "claim for additional compensation" contained in Ark. Code Ann. § 11-9-702(c), I note that the document in the Commission file clearly indicates that it is a claim for initial benefits, subject to the provisions of Ark. Code Ann. § 11-9-702(a)(1). Pursuant to Ark. Code Ann. § 11-9-702(a)(1), I believe this claim became time-barred when the claimant did not receive any compensation or treatment during the two-year period following October 25, 1996. Accord Brand v. Wayne Poultry, Full Workers' Compensation Commission, Opinion filed June 22, 1994 (W.C.C. No. D916770).
The dissent cites State v. Diamond Lakes Oil Co., 347 Ark. 618, ___ S.W.3d ___ (2002), for the proposition that, "when the running of the statute of limitations is raised as a defense, the defendant [respondent] has the burden of affirmatively pleading this defense. However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff [claimant] to prove . . . [that it was] tolled." (Emphasis added.) The dissent goes on to argue, "I believe it is the respondent's burden to show that the statute of limitations is no longer tolled. . . ." This is an incorrect interpretation of Diamond Lakes Oil. I would find that the respondent has met the requirements of Diamond Lakes Oil, by affirmatively pleading the defense of statute of limitations. Further, it is clear from the face of complaint, or in this case the Form AR-C, that the action is barred. The burden was therefore shifted to the claimant to prove that the statute of limitations was tolled. It was not necessary for the respondent to appear and present evidence at the hearing to prove his defense. All of the evidence necessary to prove by a preponderance of the evidence that the statute of limitations barred the claimant's claim was provided by the claimant, even if the Form AR-C is not admitted. The claimant testified that he received no medical treatment after October 4, 1997, and testified that he filed his claim on October 23, 1997. Therefore under Ark. Code Ann. § 11-9-702(a)(1), and Brand, supra, the claim is barred.
Based upon these observations, I fail to see how one could reach any conclusion but that the statute of limitations bars the claim. However, in the event that it is not found to be barred, I would urge a reconsideration of the finding regarding the dates of temporary total disability. The Administrative Law Judge awarded temporary total disability from September 12, 1996, the date following the claimant's injury, through March 11, 1997, a date six month later, based upon the claimant's testimony that he was unable to work due to his injury for that length of time, and did not begin working at a Shoney's in Memphis until that date in March. However, the claimant also testified that he became incarcerated in February 1997 and remained in jail until some time in 1999. If the claimant became incarcerated in February 1997, and had been working at Shoney's prior to becoming incarcerated, clearly the claimant returned to work prior to March 1997.
On this issue, I found persuasive the note from Dr. Athota in which he stated that an injury of this type would require a healing period of only two months from the date of injury, if there were no complications. The claimant did not seek further treatment from Dr. Athota nor any other physician, and did not testify that he suffered any special complications following his injury. I would find that the claimant's healing period and corresponding entitlement to temporary total disability extended from September 12, 1996, through November 12, 1996, if it is determined that the Statute of Limitations does not bar the claim in its entirety.
__________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the principal opinion, which vacates the opinion of the Administrative Law Judge and remands this matter for additional proceedings concerning whether the statute of limitations bars this claim.
I do not think the recent Court of Appeals decision in Aluminum Company of America v. Rollon, 76 Ark. App. 240, ___ S.W.3d ___ (2001) stands for the proposition that respondent has no initial burden of going forward with sufficient evidence to present a prima facie case when pleading the affirmative defense of the running of the statute of limitations. Although not a workers' compensation case, the Arkansas Supreme Court's decision in State v. Diamond Lakes Oil Co., 347 Ark. 618, ___ S.W.3d ___ (2002) is instructive.
When the running of the statute of limitations is raised as a defense, the defendant [respondent] has the burden of affirmatively pleading this defense. However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff [claimant] to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. (Citations omitted.)
See also Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998) andJohnson v. Arthur, 65 Ark. App. 220, 986 S.W.2d 874 (1999).
In my opinion, the Court of Appeals in Rollon was merely finding that claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation and that an element of compensability is to prove that the statute of limitations has been tolled by a timely claim for benefits, whenever respondent raises this affirmative defense.
It is important to remember that prior to the hearing, respondent was no more specific about this issue than the bare assertion that the claim was barred by the statute of limitations. Respondent did not argue that the claim was barred by the second sentence of Ark. Code Ann. § 11-9-702(a)(1) until after they had a chance to review claimant's testimony and after receiving an adverse decision by the Administrative Law Judge. This argument was made for the first time in respondents' brief on appeal to the Commission.
I disagree with Commissioner Yates' assertion that "[i]t is clear from the face of complaint, or in this case the Form AR-C, that the action is barred." The form, which is not in the record, indicates that the date of the accident was September 11, 1996 and that the claim was filed on October 25, 1996. This information is certainly insufficient, standing alone, to constitute a prima facie case that the claim is time barred.
Additionally, I disagree with the following contention advanced by Commissioner Yates:
It was not necessary for the respondent to appear and present evidence at the hearing to prove his defense. All of the evidence necessary to prove by a preponderance of the evidence that the statute of limitations barred the claimant's claim was provided by the claimant. The claimant testified that he received no medical treatment after October 4, 1997, and testified that he filed his claim on October 23, 1997. Therefore, under Ark. Code Ann. § 11-9-702(a)(1), and Brand, supra, the claim is barred.
The above statement might have some significance if respondent had timely raised the assertion that the claim was barred by operation of the second sentence of Section 702(a)(1) and claimant had thereafter testified, or the evidence of record had shown, that the claim filed in October 1996 was an original claim for benefits. However, the undisputed evidence shows that respondent initially accepted this claim and paid some benefits. Therefore, the claim filed on October 23, 1996 could only be one for additional benefits. It would be absurd to make a contrary finding based on the existing record.
Thus, in my opinion, there was insufficient evidence presented at the hearing to support a finding that this claim is barred by the statute of limitations. The evidence indicates that the statute was tolled by the timely filing of the claim for additional benefits in October 1996. I believe it was respondent's burden to show that the statute of limitations was no longer tolled.
Respondent failed to appear at the scheduled hearing and thus offered no evidence whatsoever to support its defense. According to counsel for respondent, the employer failed to appear due to illness, and his absence was due to a court conflict. These might have been good reasons for requesting a continuance, but certainly are insufficient excuses for failure to appear without any notice to the Administrative Law Judge or claimant and his representative. This conduct was by an employer who is uninsured and consequently subject to civil liability and criminal prosecution. Respondent should not be given another opportunity to present evidence to support its affirmative defense that the statute of limitations has run on this claim.
For the foregoing reasons, I must respectfully dissent.
_______________________________ SHELBY W. TURNER, Commissioner