May v. Travis Lumber Company

Full title: JAMES MAY, EMPLOYEE, CLAIMANT v. TRAVIS LUMBER COMPANY, EMPLOYER…

Court: Before the Arkansas Workers' Compensation Commission

Date published: Mar 31, 1998

1998 AWCC 122 (Ark. Work Comp. 1998)

Opinion

CLAIM NO. E202970

OPINION FILED MARCH 31, 1998

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by GUNNER DELAY, Attorney at Law, Fort Smith, Arkansas.

Respondents represented by MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

OPINION AND ORDER

[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on August 19, 1997, finding that: (1) the instant claim is not barred by the limitations period prescribed by Ark. Code Ann. § 11-9-702(b) (Repl. 1996), nor is it precluded by the related doctrines of collateral estoppel and res judicata; (2) claimant's continued difficulties with carpal tunnel syndrome represent a continuation or recurrence of his compensable injuries of February, 1992, for which respondents remain liable; (3) medical care rendered to claimant by his treating physician, Dr. Nils Axelsen, after November 16, 1993, amounts to reasonably necessary treatment for claimant's compensable injuries of February, 1992; and (4) claimant is entitled to an additional period of temporary total disability benefits from March 3, 1997, through a date yet to be determined.

Respondents argue on appeal that the instant claim is, in fact, barred by collateral estoppel and/or res judicata. In the alternative, respondents assert that claimant's ongoing difficulties are the product of a new injury and are not related to his compensable injuries of February, 1992, and that claimant is accordingly not entitled to additional workers' compensation benefits in the form of further medical treatment or temporary total disability. Respondents have not addressed the statute of limitations issue in their brief, but have included the Administrative Law Judge's findings on this issue within their notice of appeal. While we are thus inclined to consider the issue as having been abandoned on appeal, we nonetheless reach its merits below.

Following our de novo review of the entire record, we specifically find that the instant claim is not barred by any of the defenses advanced by respondents. We further specifically find that claimant's continued difficulties with carpal tunnel syndrome are a continuation or recurrence of his previous compensable injuries of February, 1992, and that respondents remain liable for additional benefits associated therewith. The decision of the Administrative Law Judge is therefore affirmed.

Claimant sustained a compensable injury in the form of bilateral carpal tunnel syndrome in February, 1992, for which he ultimately underwent bilateral carpal tunnel releases. This claim has been the subject of numerous prior hearings and opinions, including one entered by the Full Commission on January 22, 1996. In that opinion and order, the Full Commission affirmed and adopted the findings made by an Administrative Law Judge in an opinion and order entered on July 5, 1995. Among those findings was a denial of claimant's request for a change of physician, and a determination that claimant had failed to demonstrate the utility (and thus the compensability) of any further medical testing or treatment.

The statute of limitations is an affirmative defense which the respondent bears the burden of proving by the preponderance of the evidence. Laurin P. Dickens v. Georgia Pacific-Corp., Full Workers' Compensation Commission, Opinion Filed October 7, 1996 (Claim No. D402747). Ark. Code Ann. § 11-9-702(b) (Repl. 1996) provides that claims for additional compensation must be filed "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. See Laurin Dickens, supra. In addition, it is the furnishing of medical treatment, not the actual payment for those services, which constitutes the payment of compensation. Id. (citing Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 365 (1969) and Cheshire v. Foam Molding, 37 Ark. App. 78, 822 S.W.2d 412 (1992)). However, the mere receipt of medical treatment is not sufficient to prevent a claim from being time-barred unless it is shown that the employer furnished the treatment. Id. Where a respondent has furnished 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 further medical treatment. Id. (citing Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994) and Safeway Stores, Inc. v. Lamberson, 5 Ark. App. 191, 634 S.W.2d 396 (1982). Finally, the furnishing of medical treatment constitutes compensation only if it is reasonably necessary for treatment of the compensable injury. Id. (citing Northwest Tire Service v. Evans, 295 Ark. 246, 748 S.W.2d 134 (1988)).

Claimant filed the instant claim on March 6, 1997, clearly more than two years from the date of his injury (February, 1992). In addition, it appears from his medical records that claimant did not receive any medical treatment from December 14, 1994, through January 12, 1996. During that time, however, claimant's request for a change of physician, and hence his entitlement to further medical treatment (in the de facto sense), remained in litigation until the Full Commission entered its opinion and order on January 22, 1996. We thus find that the statute of limitations was tolled until that time, and that the instant claim for additional compensation is not barred by virtue of the gap in medical treatment from December 14, 1994, through January 12, 1996.

With regard to the subsequent intervening period, e.g., January 13, 1996, through March 6, 1997 (which again exceeds one year), we note that claimant consulted Dr. Axelsen on April 11, 1996, and that Dr. Axelsen carbon copied the resulting office note to respondent carrier. We therefore find that respondents had sufficient notice that claimant continued to receive medical follow-up from his treating physician as of April, 1996. Also, because claimant ultimately required additional surgery to deal with the progressive worsening of his symptoms, we also find that claimant's follow-up with Dr. Axelsen in April, 1996, was reasonable and necessary.

We are unable to discern from the record that respondents ever communicated to claimant any notice of controversion or refusal to provide further treatment following the April 11, 1996, office visit to Dr. Axelsen. Accordingly, we specifically find that respondents continued to furnish medical treatment to claimant as of April 11, 1996, and that the claim filed on March 6, 1997, was timely.

We are likewise persuaded that the instant claim is not barred by either of the closely related doctrines of res judicata (claim preclusion) or collateral estoppel (issue preclusion). In essence, respondents contend that the Commission's prior opinion and order of January, 1996 (discussed above), bars the present claim for benefits.

To successfully invoke the doctrine of collateral estoppel, it must be shown that:

1. the issue sought to be precluded must be the same as that involved in the prior litigation;

2. the issue must have been actually litigated;

3. the issue must have been determined by a final and valid judgment;

4. the determination must have been essential to the judgment.

Hill v. State, 330 Ark. ___, ___ S.W.2d ___ (1998).

We do not believe that respondents can avail themselves of collateral estoppel in the instant claim because the Full Commission's determination in January, 1996, regarding the issue of further medical treatment, was not essential to a judgment concerning a change of physician. At the hearing in 1995, the parties had agreed that the sole issue to be considered was claimant's entitlement to a change of physician, and we deem the findings associated with claimant's need for further medical care as simply incidental to the broader change of physician issue. Furthermore, we think it is entirely conceivable that a claimant might well be entitled to further medical care but be unable to demonstrate the need for a new physician to administer it. Accordingly, it cannot be said that the Commission's prior determination regarding claimant's need for further medical treatment in 1995 was essential to resolving his entitlement to a change of physician.

Concerning res judicata, it is necessary to show, inter alia, that two successive lawsuits involved the "same claim or cause of action which was litigated or could have been litigated but was not." See, generally, Hancock v. First Stuttgart Bank Trust Co., 53 Ark. App. 150, 920 S.W.2d 36 (1996). Following his initial course of surgical treatment, claimant underwent repeat electrodiagnostic testing on May 11, 1993, which revealed "very mild bilateral carpal tunnel syndrome." Another such test on January 17, 1996, indicated the presence of bilateral carpal tunnel syndrome which was "moderate in severity." Yet more testing approximately one year later detected "moderate to severe bilateral carpal tunnel syndrome, worse bilaterally than the previous study of 1-17-96" (as per Dr. Axelsen's office note of February 26, 1997; emphasis added). Claimant's condition had thus materially changed by mid-1996 and worsened further by early 1997, presenting a situation that neither was nor could have been litigated at the previous hearing in 1995. We thus cannot find that this claim is barred by the doctrine of res judicata.

As for the origin of claimant's current carpal tunnel-related difficulties, the medical evidence reveals that claimant called Dr. Axelsen's office and reported "severe pain" on June 10, 1992, only two days after he was released to "full duty without restrictions." The next day, Dr. Axelsen opined that claimant had "simply irritated his hands by the type of lifting and pulling that he has done." However, claimant continued to present symptoms to Dr. Axelsen throughout 1992 and into 1993. As mentioned above, nerve conduction studies performed on May 11, 1993, demonstrated that claimant still suffered from "very mild bilateral carpal tunnel syndrome," which eventually progressed to a level approaching "severe" by 1997. Claimant ultimately underwent a second right-side release on March 3, 1997.

It is true that claimant engaged in labor-type work with various employers after his initial surgery, and we note his credible testimony to the effect that "not one time" was he asymptomatic during any such period of employment. However, claimant also agreed that his pain had been "continuous" since his first surgery, and follow-up electrodiagnostic tests confirmed the lingering presence of bilateral carpal tunnel syndrome as early as mid-1993. Based on these circumstances, we find that claimant's bilateral carpal tunnel syndrome did not abate or otherwise resolve after his initial course of surgical intervention, and further find that his current condition is the natural and probable result of his original compensable injury of February, 1992, rather than the product of a new injury. See, generally, Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

Finally, we would point out that temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep't. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Given that claimant underwent a second round of surgery on March 3, 1997, we find that he re-entered his healing period on that date and is entitled to an award of temporary total disability benefits until such time as Dr. Axelsen released him to return to work.

Based on our de novo review of the entire record, and for the reasons stated herein, we affirm the decision of the Administrative Law Judge.

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 (Repl. 1996).

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 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).

IT IS SO ORDERED.

[22] Commissioner Wilson dissents.

DISSENTING OPINION

[24] I respectfully dissent from the majority opinion finding that the claimant's claim for additional benefits was timely filed and was not barred by the statute of limitations. Based upon my de novo review of the record, the claimant's claim for additional benefits is barred by the statute of limitations.

The claimant sustained an admittedly compensable injury on February 2, 1992 in the form of carpal tunnel syndrome. Since the claimant seeks workers' compensation benefits for a work-related injury which manifested itself prior to July 1, 1993, this claim is governed by the provisions of the Arkansas Workers' Compensation Law as it existed prior to the amendments of Act 796 of 1993. Because this claim concerns a claim for additional compensation, Ark. Code Ann. § 11-9-702(b) (1987) applies. This section provides in pertinent part, that:

In cases where compensation for disability 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 payment of compensation, or two (2) years from the date of the injury, whichever is greater.

The furnishing of medical services constitutes the payment of compensation under the foregoing provision, and the limitations period of one year begins to run from the date services are furnished rather than the date of payment thereof. Heflen v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 364 (1968);Chester v. Foam Modeling, 37 Ark. App. 78, 822 S.W.2d 412 (1992).

The statute of limitations is an affirmative defense which the respondent bears the burden of proving by a preponderance of the evidence. Consequently, while the claimant bears the burden of filing a claim for compensation within the limitations, he is not required to prove that he has filed in time; instead, the respondent must prove that the claimant did not file in time.See, Margie Grant v. Penn Athletic, FC Opinion May 27, 1992 ( D411709); George Hastings v. Mariana Motor Co., FC Opinion June 11, 1986 ( D206442); Ellis Williams v. Bituminous Co., Inc., FC Opinion September 23, 1985 ( B915325 C162509).

In the present claim, the evidence indicates that the claimant went to see Dr. Axelson on December 14, 1994. The claimant did not see Dr. Axelson again until January 12, 1996. Thus, the statute of limitations began to run on December 14, 1994 and it expired on December 14, 1995. Therefore, the filing for additional medical benefits should have been filed prior to December 14, 1995 which is one year from the last date the claimant received medical treatment. It is of note that the claimant did not file the instant claim until March 6, 1997.

Therefore, based upon my de novo review of the record, I find that the claimant's claim for additional compensation is barred by the statute of limitations.

Therefore, I respectfully dissent from the majority opinion.

MIKE WILSON, Commissioner