Opinion
CLAIM NOS. D913081 and E214342
OPINION FILED AUGUST 8, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE THOMAS G. MONTGOMERY, Attorney at Law, West Memphis, Arkansas.
Respondents represented by the HONORABLE MICHAEL R. MAYTON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on November 17, 1993. In that opinion and order, the administrative law judge found that the claimant's claim for compensation for an injury to her lumbar spine is barred by the statute of limitations. In addition, the administrative law judge found that the claimant failed to prove that her cervical condition is work-related. After conducting a de novo review of the entire record, we find that the administrative law judge's decision with regard to both findings must be affirmed.
The claimant began working for the respondent employer as a sewing machine operator in 1985. This required her to reach to her side and behind her to get the materials to be sewn and to move the material through the machine for sewing. The machine used by the claimant was a power driven machine, and a pedal must be pushed to engage it. The machine was started with the toes and stopped with the heel of the foot. However, the machine was not operated manually with foot pedals at any time. Nevertheless, claimant contends that the pedal was difficult to press, and she contends that she developed pain in her right leg and low back as a result of the constant pressure that she maintains was required to operate the machine. This pain progressively worsened and on June 26, 1989, she advised the respondent employer that she needed medical treatment. The respondents accepted the compensability of the condition and paid temporary total disability and medical compensation.
The claimant was first treated for her low back and right leg complaints by the company physician, Dr. Wright. Then, on June 28, 1989, she came under the care of Dr. Milton Lubin, a family practitioner and her personal physician. Dr. Lubin's examination revealed a positive response to the straight leg raising maneuver and bilateral muscle spasms in the lumbosacral spine. Consequently, Dr. Lubin concluded that the problem was related to either a muscle strain or possibly a ruptured disc, and he took her off work. However, the claimant continued to complain of problems, and Dr. Lubin caused electrodiagnostic studies and a MRI to be performed. The electrodiagnostic studies showed a L5-S1 radiculopathy, and the MRI revealed a possible ruptured disc at L5. Dr. Lubin's reports indicate that he discussed these findings with the claimant.
Consequently, Dr. Lubin referred the claimant to Dr. J.R. Lindermuth, a neurosurgeon. Dr. Lindermuth first examined the claimant on September 7, 1989, and his report indicates that he discussed the MRI findings with the claimant. However, his clinical examination was essentially negative, and he concluded that surgery was not clinically indicated. Nevertheless, his report states that the claimant thought she should go ahead with a myelogram and surgery because she felt that her employer was about to fire her, so she was afraid she would be left without any insurance or other support.
As the result of a disagreement with Dr. Lindermuth, the claimant subsequently came under the care of Dr. John Howser, also a neurosurgeon. Dr. Howser first examined the claimant on September 28, 1989, and, based on the MRI results, he opined that the claimant might have a ruptured disc. In addition, Dr. Howser's January 29, 1990, report indicates that the claimant was complaining of neck pain. A CT scan was performed in March of 1990, and this CT scan also showed a bulging disc at L5. He ultimately performed a myelogram, but this myelogram was normal. A second myelogram and post-myelogram CT scan was performed on January 18, 1991. These tests revealed a bulging disc at L5 and a possible ruptured disc with a spur at C6. On September 18, 1991, the claimant entered the hospital, and Dr. Howser performed a lumbar laminectomy. The claimant missed approximately four weeks of work after she first sought medical attention in June of 1989, but, afterward, she continued to work up until September 16, 1991.
Our Courts have held on numerous occasions that the statute of limitations for workers' compensation claims begins to run when the injury causes an incapacity to earn the wages which the employee was receiving at the time of the accident and when the incapacity continues long enough to entitle her to benefits under Ark. Code Ann. § 11-9-501 (a) (1987). See, e.g., Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992); Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Shepherd v. Easterling Construction Company, 7 Ark. App. 192, 646 S.W.2d 37 (1983). In this regard, the Arkansas Supreme Court has characterized Arkansas as a "compensable injury" state because the statute of limitations begins running when the injury becomes compensable. Wortham, supra. In Wortham, the Court explained this as follows:
In Donaldson, this court held that, for purposes of commencing the statute of limitations under § 11-9-702 (a)(1), the word "injury" is to be construed as "compensable injury," and that an injury does not become "compensable" until (1) the injury develops or becomes apparent and (2) claimant suffers a loss in earnings on account of the injury. Donaldson, 217 Ark. at 629-631, 232 S.W.2d at 654. Thus, the statute of limitations does not begin to run until both elements of the rule are met. Therefore, Arkansas is technically a "compensable injury" state. . . .
Under the latent injury rule, the statute of limitations does not begin to run until the employee knows or should reasonably be expected to be aware of the extent or nature of his injury. St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983); Woodard v. ITT Higbie Manufacturing Co., 271 Ark. 498, 609 S.W.2d 115 (Ark.App. 1980). The Arkansas Supreme Court has defined "latent" as "that which is present without showing itself." Sanderson Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796 (1949). In addition, the Court of Appeals has discussed latent conditions as follows:
"Latent condition is not defined by statute. The phrase "latent injury" has ordinarily arisen in workers' compensation cases in the context of the statute of limitations. The word "latent" applies to that which is present without showing itself. Latent means hidden, concealed, or dormant. An injury is latent until its substantial character becomes known or until the employee knows or should reasonably be expected to be aware of the full extent and nature of his injury. The question of whether an injury is latent is one of fact. . . ."
Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992). However, when the substantial character of the injury becomes known, then the claimant must file his claim within the time provided by the statute, or the claim will be barred by the statute of limitations. Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983). Consequently, the latent injury rule is not applicable to prevent the bar of the statute where the substantial character of the injury is known from the beginning and only the severity of the condition has changed, necessitating more extensive treatment methods. Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989); St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983).
The statute of limitations for the filing of claims 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, whichever is greater." The furnishing of medical treatment constitutes compensation for the purposes of this statute, and 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).
For purposes of measuring the statute of limitations, the claimant contends that the date of her injury is September 16, 1991, when surgery was recommended and she last worked for the respondent. However, she admits that she was off work from June 26, 1989 through July 24, 1989, and that the respondents paid temporary total disability compensation for that period. Consequently, the preponderance of the evidence establishes that she was incapacitated long enough to be entitled to compensation at that time. Furthermore, we find that the claimant knew of, or should have become aware of, the substantial character of her lumbar injury at least by September 7, 1989. As discussed, Dr. Lubin suspected a herniated disc as early as June 28, 1989, and his reports indicate that he discussed this with the claimant at that time. Nevertheless, the September 6, 1989, MRI revealed the herniated disc, and Dr. Lindermuth's report of September 7, 1989, indicates that he discussed this finding with the claimant. Moreover, that report indicates that the claimant discussed surgery with him at that time, and the report indicates that the claimant was actually requesting surgery at that time, over the recommendation of Dr. Lindermuth. In addition, the evidence establishes that the respondents last paid compensation when they paid for services provided by Dr. Howser on September 28, 1989. However, the claimant did not file a claim with the Commission claiming compensation for an injury to her back until June 10, 1992, and a second claim was filed with the Commission by her attorney on her behalf, on September 4, 1992, claiming compensation for an injury to her neck, back, leg, and arm. Consequently, we find that the claimant did not file a claim within two years from the time that the claim became compensable and she became aware, or should have become aware, of the substantial character of her injury, and she did not file the claim within one year from the last payment of compensation. Therefore, we find that the claim for compensation related to the lumbar injury is barred by the statute of limitations.
In addition, we find that the claimant failed to prove by a preponderance of the evidence that her cervical condition is causally related to her employment. In this regard, the claimant testified that the problems she was experiencing with her leg and low back eventually progressed to her neck, and she contends that this problem was caused by the bending, twisting, pushing, and pulling motions required of her work as a sewing machine operator. The first mention of cervical problems in the medical records is found in Dr. Howser's January 29, 1990, report, and his subsequent reports indicate that the claimant continued to complain of cervical problems. However, there is no indication in any of his reports that the claimant ever related these problems to her employment. In fact, in a letter dated May 27, 1993, Dr. Howser states that the claimant never related the cervical problems to any specific cause. In this letter, he also states that it is impossible to state with medical certainty what caused the neck problems, although he states that the operation of the sewing machine is a possible cause.
Furthermore, the claimant testified she notified her supervisor, Barbara Moody and Gary Smith, the personnel manager, of her cervical problems. However, Ms. Moody and Mr. Smith both denied that the claimant had ever notified them that she was suffering from cervical problems which were related to her employment or that she had sustained an injury to her neck.
Mary Lucille Nance, a former co-employee who worked near the claimant testified that she heard the claimant discuss her leg and low back problems with Ms. Moody, but she testified that she did not hear the claimant discuss any neck problems with Ms. Moody. Ms. Nance did testify that she heard the claimant discuss her neck problems with Mr. Smith, but she does not indicate whether or not the claimant related these problems to her employment. Maudine Nance, also a former co-employee, testified that the claimant had complained of neck pain. However, Ms. Nance did not testify that the claimant related this pain to her employment, and she testified that she did not hear the claimant report this problem to her supervisors. Jesse Mae Powell, another co-employee testified that she had not heard the claimant complain of pain in her neck.
Consequently, although the evidence establishes that the claimant began experiencing pain in her neck at some point, there is little evidence suggesting that she related this pain to her employment. Furthermore, other than the fact that she was working at a job involving twisting, turning, and bending, there is no evidence connecting the cervical problems with her employment. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that the cervical problems are causally related to her employment
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claim for compensation for the lumbar problems is barred by the statute of limitations. In addition, we find that the claimant failed to prove by a preponderance of the evidence that her cervical problems are causally related to her employment. Therefore, we find that the administrative law judge's decision must be affirmed. This claim for compensation is hereby denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.