Opinion
CLAIM NO. E121478
OPINION FILED FEBRUARY 24, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE TERRY LUCY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal to the Full Workers' Compensation Commission an administrative law judge's opinion filed May 3, 1999. The administrative law judge found that the claimant's claim is not barred by the statute of limitations as defined in Ark. Code Ann. 11-9-702. The Full Commission has reviewed the entire record de novo, and we affirm the administrative law judge's finding that the statute of limitations does not bar the claimant's claim for her compensable injury of September, 1991. However, we find that the statute of limitations does bar the claimant's claim for her compensable injury of August, 1992. The Full Commission thus affirms in part and reverses in part the opinion of the administrative law judge.
I. HISTORY
The claimant, age 57, began working for the respondent-employer in 1976. The claimant was involved in a nonwork-related motor vehicle accident in 1989 and was referred to Dr. Wilbur Giles in June, 1989. Dr. Giles, a neurological surgeon, said that cervical spine films revealed anterior osteophytic changes at C4-5, 5-6, and 6-7 consistent with cervical spondylotic disease. Dr. Giles said that the claimant had a pre-existing cervical spondylotic condition that had been aggravated and rendered symptomatic as a result of the motor vehicle accident.
The claimant's primary work duty for the respondent-employer involved taking manufactured bags off a conveyor belt and stacking them in boxes. The parties stipulated that the claimant sustained a compensable injury on September 26, 1991. The claimant testified that she was struck and pushed into a box by a forklift. The claimant presented to Crestview Family Clinic (Dr. J. Dale Calhoon) on September 27, 1991 and stated that she had been hit by a stack of bags on a pallet which a forklift had pushed over at work. The claimant complained of neck and back pain, and the respondents began providing medical treatment. Karen Ballard, a human resources assistant for the respondent-employer, testified that the claimant missed work from September 27, 1991 through October 6, 1991. No temporary total disability compensation was paid by the respondents at this time, however, nor was any requested by the claimant. The claimant testified that she was given light work duty for a time after returning to work.
The respondents sent the claimant to Dr. Thomas Rooney, an orthopaedic surgeon, on October 15, 1991, and Dr. Rooney reported that the claimant had injured her "neck, thoracic, and lumbar spine" in the forklift incident. The claimant gave a history of being involved in a motor vehicle accident in 1989, with an injury to the same area "which has never completely healed." X-rays of the lumbar spine dated September 27, 1991 were normal; concurrent x-rays of the cervical spine showed calcification in the anterior longitudinal ligament and maybe some mild narrowing of the C6-7 disc space. According to x-ray reports, these findings had advanced from the time of previous cervical x-rays taken May 5, 1989. Dr. Rooney found that "her findings are so diffuse, that it's difficult to make a diagnosis. She apparently sustained a musculoligamentous type injury in September. However, she has minimal objective findings now. She has no localizing findings and I'm unable to explain the degree of her discomfort. . . . I really don't have any other suggestions with reference to her management."
Dr. Rooney stated in November, 1991 that the claimant continued to be symptomatic, but since there were no objective findings, he ordered an MRI of the spine. If the MRI was negative, then the claimant needed neurological and/or psychological evaluation. Dr. Dillard Denson reported in December, 1991 that an MRI scan showed no evidence of a herniated disc in the neck, thoracic, or lumbar spine, nor was there evidence of spinal cord or nerve root compression. With no objective evidence of neurological deficits on MRI or physical examination, Dr. Denson thought the claimant had a psychiatric rather than a neurological disorder. No work restrictions were imposed, since no neurological pathology was found. Dr. Denson did not believe that the claimant's pain was on the basis of any physical condition.
On or about December 26, 1991, the claimant filed an A-7 Form, Claim for Compensation, requesting "a second opinion of a doctor." The claimant indicated that she had been seen twice by an orthopedic specialist and once by a neurologist. The claimant said that the neurologist would not treat her, and that she had no relief from her pain. On January 3, 1992, Alice M. Totsch mailed the following correspondence to the Assistant Executive Director of the Workers' Compensation Commission, copied to the claimant and National Loss Control Service:
Re: Blandina Spencer v. Stone Container Corporation
WCC File No. E121478
DOI: 9-27-91
Dear Ms. Gray:
Please be advised that I have been retained by Blandina Spencer to represent her interest arising out of the above claim.
Please consider this correspondence a formal request for a hearing sufficient to meet the statutory requirements. However, the claimant does not desire a hearing at this time. Please simply note my name as attorney of record.
By copy of this correspondence, I am notifying the respondent of my representation. . . .
The record shows that the respondents' last payment allocation for Dr. Calhoon's treatment of the September, 1991 injury was January 13, 1992. On January 14, 1992, Michael R. Mayton confirmed that he had been retained to represent the respondents. Juanita Green for the carrier informed the Commission on January 22, 1992 that "This claim has been accepted as compensable and benefits paid accordingly. We are not agreeable to a change in physician as we have complied with the wishes of the claimant. She first saw Dr. Calhoun (sic) her personal physician and we sent her to Dr. Thomas P. Rooney only to find out that the claimant was not pleased with his treatment and she wanted to see someone else and we agreed to get a referral from Dr. Rooney for the claimant to see Dr. Dillard Denson. All the medical reports are attached for your review along with the A-8 filing. The claimant continues to work and has not lost any wages for this injury."
The claimant asserted that she again injured her neck and back on August 24, 1992, after which time the respondent-employer again authorized medical treatment at Crestview Clinic. The record contains another (undated) A-7 Form, Claim for Compensation, showing an accident date of August 25, 1992. The claimant said she slipped on fluid from a forklift and fell on a concrete floor. The claimant was treated conservatively and was taken off work "indefinitely" on September 3, 1992. Dr. Giles saw the claimant in October, 1992 and continued to recommend conservative treatment, but in November, 1992, Dr. Giles performed an anterior cervical diskectomy and fusion with bone grafts at C5-6 and C6-7 for cervical spondylosis. Dr. Giles estimated in December, 1992 that it would be approximately three months before the claimant could return to a working capacity, but the claimant never returned to work.
Juanita Green of Kemper Risk Management Services corresponded with the Arkansas Workers' Compensation Commission on January 4, 1993, concerning a "Date of Loss" of September 27, 1991. Ms. Green wrote, "It appears that there has been no activity in over six months. The claimant has an active claim and I am asking the Commission approval to close this file out." Mr. George L. Harris, Executive Director of the Commission, copied the correspondence to Alice Totsch and advised "that I am treating this letter as a request for dismissal, due to the lack of prosecution, subject to Rule 13, of the Arkansas Workers' Compensation Act." Ms. Totsch responded on January 26, 1993:
We are requesting that the above file not be dismissed for want of prosecution.
We were undergoing discovery and negotiating with the attorney for Kempner (sic) when Mrs. Spencer was again injured at work. The second injury compounded the first injury and has resulted in surgery for Mrs. Spencer. To date, Mrs. Spencer is still not strong enough to pursue the first claim. Kempner has paid all of Mrs. Spencer's claims from the second injury but has paid none from the first injury. As soon as Mrs. Spencer is physically able to pursue her claim, I intend to set this before an Administrative Law Judge for a hearing.
For the above reasons, we respectfully request that this file be kept opened.
The preponderance of evidence indicates that counsel erred in stating that the carrier had paid no worker's compensation for the first compensable injury. In any event, Mr. Harris wrote to the carrier on February 3, 1993:
I am hereby respectfully denying your request for dismissal. If you wish to pursue your dismissal request, you have a right to request a hearing before an administrative law judge for that purpose. Until you or attorney Totsch request a hearing, however,
I will return this file to general files without taking further action.
No further procedural action of record was taken at that time.
On March 29, 1993, Dr. Giles prescribed a TENS unit to help the claimant with her chronic pain, and he assessed a 15% permanent partial impairment rating, which the respondents accepted and paid. Dr. Giles pronounced maximal medical improvement as of May 1, 1993, but stated that the claimant could not "engage in any type of job which will require heavy lifting or push pull type maneuvers or lifting greater than 25 pounds." Dr. Giles opined in November, 1994 that the claimant could not return to her previous occupation and in fact was "not employable as a result of her chronic difficulties in the cervical and lumbar spine."
The respondents provided medical treatment rendered to the claimant by Drs. Giles and Calhoon through March 2, 1995. Pam Green with Kemper Risk Management Services corresponded with the claimant on June 24, 1995 regarding a "Date of Loss" of August 24, 1992. Ms. Green sent copies to neither counsel for the claimant nor the Commission, and asked the claimant to contact the carrier at a 1-800 number "in order that we may discuss settlement of your claim(s)." Dr. Calhoon, Crestview Clinic, opined in July, 1995 that the claimant had suffered a permanent impairment rating of "100%" to the body as a whole. Dr. Calhoon corresponded with the carrier on February 12, 1996, writing that the claimant "is unemployable because of chronic pain secondary to degenerative change." Thereafter, another representative of Kemper Risk Management wrote to the claimant on February 26, 1996, regarding the August 24, 1992 injury, stating, "Based on medical received by Dr. Dale Calhoon, your continued complaints and treatment are due from degenerative disc disease which is a pre-existing condition and not work related. Therefore, we will not be approving any further treatment for your neck or supplies for the TENS unit." The claimant testified that she did not receive this letter, which was mailed to her address of record. The record shows that the last medical treatment provided by the respondents consisted of a payment allocation for Texas Tens, Inc., occurring March 11, 1996, for treatment date February 13, 1996. The claimant testified that her husband called for an electrode replacement for the Tens unit, but that the carrier refused. The claimant also testified that she was still receiving ongoing medical treatment at that time. Cindy McGrath for Kemper wrote to the claimant on May 9, 1996, "After reivewing (sic) the file I note that Mrs. Pam Green in our office has written to you asking that you contact this office to discuss a joint petition settlement of your claim. To date no response from you in reference to this. Please be advised that you will have 30 days from receipt of this letter to contact this office to discuss settlement of your claim and (sic) we have not heard from you after this period of time (sic) will close our file."
Meanwhile, Dr. Calhoon treated the claimant for complaints of back pain and other symptoms on February 12, 1997 and June 19, 1997. On July 30, 1997, attorney C.P. Christian corresponded with the carrier:
Ms. Spencer is still under treatment for her injury and should not be released from the worker's compensation that she has been receiving.
Ms. Spencer is still under the care of Dr. Dale Calhoun (sic) for continuing pain and restricted movement in the neck, back, and extremities. She has been using the TENS unit for chronic pain as prescribed by Dr. Wilber (sic) Giles. As you know these units need batteries and electrodes from Texas TENS in Dallas that are expensive. Ms. Spencer cannot continue this treatment without the coverage she has been receiving. Ms. Spencer is still receiving Toradol for her as prescribed by Drs. Giles and Calhoun. Her physical therapy by Harry Norton, RPT., as prescribed by Calhoun cannot be continued without coverage.
The claimant filed two Forms AR-C on December 22, 1997, for the injuries of September, 1991 and August, 1992. The claim was for "initial" and "additional" workers' compensation benefits. Mr. Gary Davis placed all parties "on notice" in January 6, 1998 correspondence to the Commission that the Whetstone Law Firm represented the claimant in connection with the two injuries. In correspondence authored January 23, 1998 by Thomas Mickel, Esq., and copied to counsel for the claimant, the respondents contended "that both of these claims are barred by the statute of limitations. Claimant went more than a year without incurring treatment or collecting indemnity benefits. In the alternative, if Claimant has sought medical treatment within a year of filing her claim, such treatment is not reasonably necessary for or is not related to her former compensable injuries."
Dr. Calhoon continued treating the claimant for neck and back pain in March and June, 1998. Dr. Jim J. Moore, a neurological surgeon, conducted an independent medical examination for the respondents on March 3, 1999. Dr. Moore confirmed that the claimant submitted to a two-level anterior cervical fusion at C5-6, C6-7, on November 23, 1992, and subsequently received a 15% permanent partial impairment rating. Dr. Moore reported that the claimant was taking medication and "uses a TENS unit to good advantage," and he opined that "the patient would likely be having the problems she currently exhibits based on degenerative disk disease at both cervical and lumbar."
After a hearing before the Commission, the administrative law judge found that "the claimant's claim is not barred by the statute of limitations as defined in A.C.A. 11-9-702." The administrative law judge concluded, "we not only have a claim for additional compensation filed within two years from the date of injury, we also have a denial of dismissal filed in February, 1993, by the Commission conveyed by CEO George Harris. . . . Also, no further motions by the respondent for dismissal for lack of prosecution or otherwise, were made." The administrative law judge noted that the respondents attempted to negotiate a joint petition settlement in 1996 and refused further payment after the claimant did not respond, "although claimant testified that she was under medical treatment at that time, and needed repair parts to her TENS unit." The administrative law judge noted that C.P. Christian wrote to the respondents in July, 1997 and averred that the claimant was still under active treatment by Dr. Calhoon and Dr. Giles, and that the claimant needed further service on her TENS unit. Then, the Whetstone Law Firm intervened in January, 1998.
The administrative law judge concluded:
The Court held in Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 675 S.W.2d 849 (1984), that the filing of a timely claim for additional compensation satisfies the statutory requirements and suspends the running of the statute and in Arkansas Power Light Co. v. Giles, 20 Ark. App. 154, 725 S.W.2d 583 (1987), and Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986), that a timely filed claim for additional compensation tolls the statute so that subsequent claims are not barred by the statute, even though filed more than two years from the date of the injury or more than a year from the date of the last payment of compensation.
The administrative law judge ordered that "The claimant's claim as filed herein, is not barred by the statute of limitations, and claimant may be entitled to additional benefits which are supported by the prerequisite proof and evidence." The respondents filed a timely notice of appeal to the Full Commission and requested a de novo review. In their notice of appeal, the respondents stated that the administrative law judge's opinion and order "is captioned to include only Claim No. E121478, which Respondents interpret to mean that the Administrative Law Judge failed to make findings with regard to Claim No. E214819." The administrative law judge filed an amended order on July 1, 1999, stating, "In addition to claim number E121478, this opinion is applicable to and includes claim no. E214819. All other matters are hereby reaffirmed as written."
II. ADJUDICATION
A. The claimant's compensable injury of September 26, 1991.
Ark. Code Ann. § 11-9-702(b), in its pre-Act 796 form, reads as follows:
(b) TIME FOR FILING FOR ADDITIONAL COMPENSATION.
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 last payment of compensation, or two (2) years from the date of the injury, whichever is greater.
The filing of a claim for additional workers' compensation benefits within the statutory time period tolls the statute of limitations. Bledsoe v. Georgia-Pacific Corporation, 12 Ark. App. 293, 675 S.W.2d 849 (1984); Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986). See also, Arkansas Power and Light Company v. Giles, 20 Ark. App. 154, 725 S.W.2d 583 (1987). A claim for initial benefits does not toll the running of the statute of limitations in workers' compensation cases. See, the holding of the Supreme Court in Petit Jean Air Service v. Wilson, 251 Ark. 871, 475 S.W.2d 531 (1972):
. . . a filing is by no means comparable to the lodging of a formal complaint in a court of law. Court cases, almost without exception, are contested; and even those that are allowed to go by default are eventually terminated by an affirmative order of the court. By contrast, hardly one compensation case in fifty is controverted. Uncontroverted claims, such as this one, make up the vast majority of all claims that are filed. Such claims are not ordinarily brought to the attention of the commission nor acted upon by it in any way whatever. The insurance carrier pays the claim to the satisfaction of all concerned, and that is the end of the matter.
* * *
It is plainly the better rule to put upon the claimant the burden of filing his claim for additional compensation within the time allowed by the statute. In our opinion, that view of the matter gives effect both to the letter and to the spirit of the law.
The Full Commission affirms the administrative law judge's finding that Blandina Spencer's claim arising out of her compensable injury of September 25, 1991 is not barred by the statute of limitations. On December 26, 1991, Ms. Spencer filed an A-7 Form, Claim for Compensation, requesting "a second opinion of a doctor." The respondents recognized in their January, 1992 correspondence that the claimant's request for a second opinion constituted a request for a change of physician. A timely filed claim for additional benefits, of any nature, tolls the statute of limitations.Bledsoe, Id. The Commission has previously considered a request for a change of physician to be a claim for additional benefits. See, Dixon v. Cooper Tire Rubber Co., Full Workers' Compensation Commission, Dec. 15, 1995 ( E008002). See also, May v. Travis Lumber Co., Full Workers' Compensation Commission, March 31, 1998 ( E202970). The Full Commission thus finds that the statute of limitations has been tolled with regard to the September, 1991 compensable injury.
B. The claimant's compensable injury of August 25, 1992.
With regard to this compensable injury, the Full Commission reverses the administrative law judge's finding that Ark. Code Ann. § 11-9-702 does not bar her claim. Ms. Spencer asserted that she again injured her neck and back at work in August, 1992; at that time, the respondents again began providing medical treatment by Dr. Calhoon at Crestview Clinic. The claimant filed another A-7 Form, Claim for Compensation, but there is no date of filing in the record before us on appeal. Dr. Giles performed surgery on the claimant in November, 1992 and assigned a permanent impairment rating in March, 1993, which the respondents accepted and paid out through August, 1994. The respondents paid for the treatment of Dr. Giles and Dr. Calhoon through March 2, 1995, and the carrier tried to get the claimant to settle the case in June, 1995. The respondents notified Ms. Spencer in February, 1996 that they would not approve any further treatment for her neck, nor would they pay for maintenance of the TENS unit. The record shows that the last medical bill paid by the respondents consisted of a payment allocation for Texas Tens, Inc. on March 11, 1996. Despite the carrier's refusal to pay for maintenance of the TENS unit, the claimant testified that she was still receiving ongoing medical treatment. We note that Dr. Calhoon treated the claimant for complaints of back pain and other symptoms on February 12, 1997 and June 19, 1997; in addition, the claimant's attorney informed the respondents in July, 1997 that the claimant was still under Dr. Calhoon's care, was using the TENS unit for chronic pain, was taking medication, and was receiving physical therapy. The furnishing of medical services constitutes "payment of compensation" within the meaning of the statute of limitations, such payment of compensation or furnishing of medical services tolls the running of the time for filing a claim for additional compensation. Heflin v. Pepsi-Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 365 (1968). Nevertheless, the claimant must show that the treatment in question was reasonably necessary for treatment of the compensable injury. Northwest Tire Service v. Evans, 295 Ark. 246, 748 S.W.2d 134 (1988).
In the present matter, the Full Commission finds that the statute of limitations began to run on March 11, 1996, which was the last medical treatment paid for by the respondents. In accordance with Ark. Code Ann. § 11-9-702, the time for filing of an additional claim would expire after March 11, 1997. The record shows that the claimant filed a Form AR-C for additional worker's compensation on December 22, 1997, well outside the statutory time period. From the record, we recognize that Dr. Calhoon treated the claimant in February and June, 1997, and again in March and June, 1998. However, we are unable to find that this treatment was reasonable, necessary, and related to the claimant's compensable injuries of 1991 and 1992. Dr. Giles pronounced maximum medical improvement as of May, 1993; in February, 1996, Dr. Calhoon opined that the claimant's chronic problems resulted from degenerative changes rather than a workplace incident. We further note that the claimant's medical treatment from 1996-98 related primarily to asthma and bronchitis, which conditions did not result from her 1991-92 compensable injuries. We reverse the administrative law judge's finding that the claimant's claim for her August, 1992 injury is not barred by the statute of limitations.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission affirms the administrative law judge's finding that the statute of limitations does not bar the claimant's claim arising out of her compensable injury of September 26, 1991. The Full Commission reverses the administrative law judge's finding that the statute of limitations does not bar the claimant's claim arising out of the compensable injury of August 25, 1992. Consequently, we affirm the administrative law judge's determination that the claimant may be entitled to additional benefits, supported by a preponderance of the evidence, with regard to the compensable injury of September 26, 1991. 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 in part 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) (Repl. 1996).IT IS SO ORDERED.
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MIKE WILSON, Commissioner
CONCURRING AND DISSENTING OPINION
I find that I must concur in part and dissent in part from the majority opinion. I concur with the majority decision to affirm the holding that the statute of limitations does not bar the claimant's claim for her compensable injury of September, 1991. I must however dissent from the finding that claimant is barred by the statute of limitations from seeking further benefits for her compensable injury of August, 1992.
In my opinion the treatment provided by Dr. Calhoon in February, June and July of 1997 was sufficient to toll the running of the statute of limitations and render timely the Form AR-C for additional worker's compensation benefits filed on December 22, 1997. Unlike the majority, I conclude that the treatment in question was reasonable and necessary for the care of claimant's compensable injury.
Accordingly, I would affirm the opinion of the Administrative Law Judge in its entirety.
______________________________ PAT WEST HUMPHREY, Commissioner