Opinion
CLAIM NO. E203774
OPINION FILED DECEMBER 17, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE C. BURT NEWELL, Attorney at Law, Hot Springs, Arkansas.
Respondents No. 1 represented by the HONORABLE EUGENE BRAMBLETT, Attorney at Law, Camden, Arkansas.
Respondent No. 2 represented by the HONORABLE BETTY J. DEMORY, 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 September 15, 1995. In that opinion and order, the administrative law judge found that the claimant's 1994 low back problems were a recurrence of her compensable low back injuries sustained in January, February and March of 1992. In addition, the administrative law judge found that the Statute of Limitations bars the present claim for additional benefits.
After a de novo review of the entire record, we find that the preponderance of the evidence establishes that the claimant's 1994 low back problems were a recurrence of the compensable injury she sustained on January 20, 1992. In addition, we find that the Statute of Limitations bars a claim for additional benefits for the compensable injury sustained in 1992. Therefore, we find that the administrative law judge's decision must be affirmed.
The claimant has a long history of low back problems dating back at least to the time she was initially hired by the respondent as a certified nurse' s assistant in 1988. According to Ms. Nora Cunningham, an LPN who knew and worked with the claimant during that period, the claimant expressed difficulties with both her shoulder and her low back at that time, although the claimant's low back complaints were not as frequent as her shoulder complaints. The claimant left her employment with the respondent for a period, but was rehired in April of 1991. Ms. Brenda Godwin, the respondents' director of nursing, testified that beginning with the 1991 rehire the claimant expressed routine and general complaints of low back problems.
On January 20, 1992, the claimant sustained an admittedly compensable low back injury while performing her duties in patient care, and the claimant was treated that same day by Dr. O.D. Brown, a general practitioner, at the DeQueen Community Hospital. An x-ray of the claimant's lumbar spine did not indicate any fracture or dislocation. However, Dr. Brown observed muscle spasm in the lumbar region of the lower back, and Dr. Brown prescribed rest, medication, and physical therapy. The claimant remained off work for approximately nine days, and then returned to work in patient care. However, on February 22, 1992, the claimant reported additional problems caused by lifting a patient. The claimant was off work approximately seven days and was treated with medication. On March 10, 1992, the claimant experienced low back pain while lifting a patient, and Dr. Brown referred the claimant to Dr. Richard Hilborn, an orthopedic surgeon, on March 13, 1992. At that time, a physical examination was negative for the straight leg raising maneuver, and Dr. Hilborn did not detect any loss of sensory function in the claimant's lower extremities. Dr. Hilborn prescribed medication and additional rests. Dr. Hilborn released the claimant to return to light duty work on April 3, 1992, and Dr. Hilborn released the claimant to regular duty work on May 20, 1992.
The claimant continued to work for the respondent nursing home except for a brief period between February 20, 1993, and June 19, 1993, when the claimant left to work at a dry cleaners. The claimant testified that the dry cleaners work was not as physically demanding as patient care, and the claimant testified that she was able to earn higher wages at the dry cleaners. According to the claimant, she left the dry cleaners to return to work for the respondent because her hours at the dry cleaners were being cut. In addition, the claimant testified that she did not further injure her back while working at the cleaners.
Maggie Robinson, a nurse's aide for the respondent, testified that she came into contact with the claimant from time to time while the claimant worked at the dry cleaners, and according to Ms. Robinson, the claimant continued to express low back complaints while employed at the dry cleaners. Ms. Nora Cunningham, an LPN and supervisor at the nursing home, testified that the claimant expressed complaints about low back problems on nearly a daily basis from the time the claimant returned from her injury in April of 1992 until the claimant ultimately terminated her employment in May of 1994. Brenda Godwin, the Director of Nursing, also testified that the claimant made frequent low back complaints after the June 1993 rehire until the claimant terminated in May of 1994. Likewise, June Clifton, a nurse's aide, testified that the claimant made frequent complaints of low back pain from the time Ms. Clifton started working for the respondent on January 27, 1992, until the claimant terminated in May of 1994. However, Nora Cunningham testified that, although the claimant made almost daily complaints of low back problems between June of 1993 and May of 1994, the claimant never reported any injury in addition to the incidents in early 1992.
On March 31, 1994, the claimant presented to Dr. Frank Daniel, a general practitioner, with complaints of "weak spells" and severe low back pain. When the claimant's symptoms were not relieved through conservative care, Dr. Daniel hospitalized the claimant on May 23, 1994. A CT scan of the lumbar spine indicated a prominent bulging disc at the L4-5 level. The claimant received a diagnosis of degenerative disc disease and was discharged on May 26, 1994.
However, the claimant's low back problems did not significantly abate and Dr. Daniel referred the claimant back to Dr. Hilborn on June 10, 1994. The claimant indicated to Dr. Hilborn that she had continued to have back problems since her last visit in April of 1992, but that her problems had become worse over the past several months. The claimant reported severe right hip and right leg pain. Diagnostic testing, including a lumbar MRI, a lumbar myelogram and a post-myelogram CT, indicated a bulging to focally herniated disk at the L4-5 level causing impingement of the right L5 nerve root. The claimant filed a claim for workers' compensation benefits on July 5, 1994. In that claim for additional benefits, the claimant stated:
I hurt my back at Brookwood Nursing Center 1-22-92 — I had trouble with it ever since.
When an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury.Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Consequently, when subsequent complications are the natural and probable result of the original injury, the employer remains liable. On the other hand, if the subsequent complications result from an independent intervening cause, the employer is relieved of liability for compensation benefits. However, the intervening incident must independently contribute to the claimant's condition before the employer is relieved of liability. Bearden, supra.
The Arkansas Supreme Court discussed this issue as follows in Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W.2d 465 (1976) (quoting 4 Arthur Larson, The Law of Workmen's Compensation § 95.23 (1990)):
If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. . . . This group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.
Likewise, the Arkansas Court of Appeals made the following comments in Halstead Industries v. Jones, 270 Ark. 85, 603 S.W.2d 456 (Ark.App. 1980):
When the symptoms of a back injury persist and culminate in a second disability without the intervention of a new injury the second disability is properly classified as a recurrence of the first injury, and the insurance carrier at the time of the original injury remains liable.
In the present claim, we find that a preponderance of the evidence establishes that the claimant's current low back problems are a recurrence of the compensable injury sustained in January of 1992. In this regard, the testimony of the claimant and her co-workers establishes that the claimant has experienced routine and persistent low back pain since the January 1992 incident. The testimony of the claimant and her co-workers also establishes that the claimant's work at the dry cleaners did not independently contribute to the claimant's condition and the testimony establishes that the claimant's low back problems remained substantially the same both before and after her employment at the dry cleaners. Likewise, the history which the claimant provided to Dr. Hilborn in June of 1994 indicates that the claimant's back injury which Dr. Hilborn treated in 1992 persisted and ultimately culminated in a second disability in 1994 without the intervention of any new injury. Consequently, after reviewing Dr. Hilborn's records, the testimony of the claimant and her co-workers, as well as all other evidence properly in the record, we find that the claimant's 1994 low back problems are a recurrence of the compensable injury sustained in January of 1992. In addition, because we find that the claimant's 1994 low back problems are a recurrence of her 1992 injury, we note that this claim is not subject to the provisions of Act 796 of 1993. See, Atkins Nursing Home v. Gray, 54 Ark. App. 125, ___ S.W.2d ___ (1996).
However, we also find that the present claim for additional benefits is barred by the Statute of Limitations. The statute of limitations for the filing of claims for additional compensation is set forth in Ark. Code Ann. § 11-9-702 (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."
An obvious threshold question whenever the statute of limitations is at issue involves the determination of when, and if, the limitations period commenced to run. Our Courts have held on numerous occasions that the statute of limitations for workers' compensation claims does not commence to run until the injury causes an incapacity to earn the wages which the employee was receiving at the time of the accident and until 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 the present claim, Dr. Hilborn's medical records indicate that the claimant became incapacitated to earn wages immediately after the January 20, 1992, incident and Dr. Hilborn's records indicate that the incapacity continued for a sufficient length of time to entitle the claimant to benefits under Ark. Code Ann. § 11-9-501 (a). Consequently, we find that the claimant's claim for additional benefits filed on July 5, 1994, was not filed within two years from the date that the claimant's injury became compensable, in January of 1992. In addition, Ms. Thelma Tofer, a senior claims consultant for respondent No. 1 testified that ITT Hartford last paid the claimant indemnity compensation for temporary disability on March 24, 1992, and according to Ms. Tofer, the last payment of any kind was made on June 30, 1992, for a prescription filled on April 30, 1992. Therefore, we find that a preponderance of the evidence establishes that the claimant also did not file the present claim for additional benefits within one year of the last payment of compensation for her compensable injury. Consequently, we find that the present claim for additional compensation is barred under the provisions of Ark. Code Ann. § 11-9-702 (b) (1987).
In reaching our decision, we note that the claimant asserts that her injury was "latent" until June of 1994, when diagnostic testing first revealed the claimant's disc abnormality at the L4-5 level. 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 her 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, in the context of Second Injury Fund liability, 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 her 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).
In the present claim, we find that the preponderance of the evidence establishes that the claimant's injury was not hidden, concealed or dormant between January 20, 1992, and July 5, 1994, when the claimant filed her claim. Although the claimant returned to work and ultimately continued to work full time following her January, 1992, injury, the pain from that injury never fully subsided and she continued to routinely complain of it up until she finally presented to Dr. Daniel in March of 1994 with severe back pain. Moreover, the claimant testified that she would be away from work for up to 2-3 days at a time between 1992 and 1994 to allow her back to rest, and Ms. Cunningham testified that other aides would routinely assist the claimant with lifting specifically because of the claimant's ongoing low back complaints. Consequently, we find that the "substantial character" of the claimant's low back injury has been apparent since January 20, 1992. Although the severity of the symptoms associated with that condition increased in early 1994, the substantial character of the claimant's condition has not changed. Therefore, we find that the claimant's assertion that her low back injury was "latent" until June of 1994, is without merit, and we find that the running of the limitations period for filing the present claim for additional benefits was not tolled under the latent injury rule.
Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant's 1994 low back problems are a recurrence of the compensable injury sustained in January of 1992. In addition, we find that the Statute of Limitations bars the present claim for additional benefits. Consequently, we find that the decision of the administrative law judge must be, and hereby is, affirmed.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur with that portion of the majority opinion finding that claimant's low back problems in 1994 were a recurrence of her previous low back problems in 1992, and that Act 796 is consequently inapplicable to this claim.
However, I must respectfully dissent from the majority's subsequent finding that the present claim for benefits relating to claimant's 1994 recurrence is barred by the statute of limitations.
In reaching the latter conclusion, the majority has cited the following passages from Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992) and, inter alia, Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983):
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. (From Purolator Courier.)
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. (From Cornish Welding Shop.)
The majority couched its finding with regard to the statute of limitations as follows:
In the present claim, we find that the preponderance of the evidence establishes that the claimant's injury was not hidden, concealed, or dormant between January 20, 1992, and July 5, 1994, when the claimant filed her claim. Although the claimant returned to work and ultimately continued to work full time following her January, 1992, injury, the pain from that injury never fully subsided and she continued to routinely complain of it up until she finally presented to Dr. Daniel in March of 1994 with severe back pain. Moreover, the claimant testified that she would be away from work for up to 2-3 days at a time between 1992 and 1994 to allow her back to rest, and Ms. Cunningham testified that other aides would routinely assist the claimant with lifting specifically because of the claimant's ongoing low back complaints. Consequently, we find that the "substantial character" of the claimant's low back injury has been apparent since January 20, 1992. Although the severity of the symptoms associated with that condition increased in early 1994, the substantial character of the claimant's condition has not changed. Therefore, we find that the claimant's assertion that her low back injury was "latent" until June of 1994, is without merit, and we find that the running of the limitations period for filing the present claim for additional benefits was not tolled under the latent injury rule.
I do not believe that claimant's obvious awareness of generalized back pain ever since January 20, 1992, equates with knowledge of the "substantial character" of her injury from that time to that present. Claimant received a diagnosis of "left low back strain" on March 13, 1992, from Dr. Hilborn. Following the results of an MRI on June 13, 1994, Dr. Hilborn announced (on June 16, 1994) that claimant in fact suffered from a "posterior lateral disc herniation at L4-5 on the right." This represents not just a mere increase in claimant's symptoms, but amounts to no less than a revelation of exactly what was wrong with her back. (A subsequent lumbar CT scan on June 21, 1994, revealed "bulging disc to focal herniation at the 4-5 level primarily to the right of midline with predominantly lateral recess and foraminal stenosis as described." A lumbar myelogram that same day indicated "bulging to focally herniated disc centrally and to the right at the 4-5 level with compromise of the right L5 root in the lateral recess." Dr. Hilborn, on June 28, 1994, referred to these findings as "evidence of a disc herniation at the L4-5 level on the right.")
Prior to this time, it would have been virtually impossible for claimant to fully appreciate either the "substantial character" of her injury or its "full extent and nature." And not surprisingly, such a discovery will certainly entail more extensive treatment — though this is more the result of knowing the nature of claimant's injury than of an increase in her symptoms.
I would also point out that the Arkansas Supreme Court has previously dealt with a very similar fact situation in Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 115 (1980). In Woodard, claimant sustained an initial compensable injury in 1974, and suffered no less than three additional episodes between then and mid-1979. The court noted that claimant's medical records contained diagnoses of "acute lumbosacral strain" and "chronic lumbosacral strain" in 1976 and 1977 respectively. Not until July 20, 1978 did claimant receive a diagnosis of an L4-5 disc herniation. Subsequent medical reports indicated that claimant's back was permanently impaired. On May 30, 1979, claimant filed for additional workers' compensation benefits in the form of a 20% permanent partial disability.
As in the instant case, this Commission determined that each of claimant's episodes since the 1974 injury were indeed recurrences thereof, but also deemed the last claim barred by the statute of limitations, "because no claim had been paid by Liberty Mutual for this injury for more than one year, and more than two years had elapsed since the injury of 1974." In resolving the statute of limitations issue, the Supreme Court stated that:
The appellant contends that the statute did not begin to run until he "should reasonably have discovered his condition." The essence of this agreement (sic) is that the appellant did not know he suffered from a herniated nucleus pulposus until July 20, 1978, and did not know that his disability was permanent until it was evaluated as such in 1979, and he filed his claim within two years of those events.
Liberty Mutual contends that the statute began to run with the initial occurrence in 1974; that the appellant knew what his condition was then, and he has waited more than two years from that event, and more than one year since their last payment, to file his claim.
The Court went on to note appellant's (claimant's) reliance on Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 561 (1950), and T.J. Moss Tie Timber Co. v. Martin, 220 Ark. 265, 247 S.W.2d 198 (1952), as well as appellee's efforts to distinguish each from Woodard:
Liberty Mutual attempts to distinguish the case (Donaldson) on the ground that here the appellant had a compensable injury from the start, and he received workers' compensation benefits from 1974 on. While the distinction is factually correct, we question whether it should be influential with respect to the principal we seek to apply and which is articulated there, i.e., that the statute 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. (Parenthetical mine).
Also,
Liberty Mutual attempts to distinguish the T.J. Moss case by saying that here the appellant knew the nature of his injury from the outset. The medical evidence is to the contrary. It was not until 1978 he was diagnosed as having a herniated nucleus pulposus as opposed to the earlier "strain" diagnoses. Nor had any physician even mentioned permanent disability until 1979. . . We hold that appellant's claim was not barred by the statute of limitations because there is no substantial evidence showing that the appellant knew or should have known the nature and extent of his injury more than two years prior to filing his claim. (Emphasis mine).
For the reasons set out above, and based upon our Supreme Court's analysis and holding in Woodard, I must respectfully dissent from the majority's finding that the present claim for benefits (relating to claimant's 1994 recurrence) is barred by the statute of limitations.
PAT WEST HUMPHREY, Commissioner