CLAIM NOS. D917499 and E416605
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 9, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LANA P. DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE WILLIAM M. BRIDGFORTH, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Respondent No. 1, Aetna (the respondent employer’s carrier until April of 1991), appeals, and respondent No. 2, Jefferson Regional Medical Center (which became a self-insured employer beginning in April of 1991), cross-appeals an opinion and order filed by the administrative law judge on April 5, 1996. In that opinion and order, the administrative law judge found that respondent No. 1 failed to prove that the Statute of Limitations bars the claimant’s claim for additional benefits for an admittedly compensable left foot injury sustained on February 5, 1989. However, the administrative law judge also found that the claimant subsequently sustained a compensable “aggravation” and not a “recurrence” to her preexisting condition on May 14, 1993, which terminated respondent No. 1’s liability for treatment and benefits after that date.
[10] On May 18, 1993, approximately three years later, the claimant reported a second incident involving her left foot. According to a report filed by Ms. Lawson, the incident occurred on May 14, 1993, when the claimant stepped backward off of a platform after loading ice into a machine. Ms. Lawson’s report also indicated that the claimant experienced pain and swelling developing over the 3-4 day period between the incident and the report of injury. [11] Following the report on May 18, 1993, Ms. Lawson referred the claimant to the respondent’s emergency room where the claimant was prescribed crutches, no weight bearing for one week, and Relafen. A reexamination in the emergency room on May 29, 1993, indicated tenderness over the left ankle, but no swelling, instability or effusion, and the claimant was prescribed a refill of Relafen by the emergency room physician on May 29, 1993. [12] The claimant terminated her employment with the respondent hospital in January of 1994 after an incident involving theft of property. How, ever, the respondent hospital provided emergency room treatment to the claimant for left foot difficulties on June 28, 1994, and the claimant filed the present claim for additional benefits on July 8, 1994. [13] The respondent employer referred the claimant back to Dr. Lytle on September 18, 1995, and again on October 10, 1995. Dr. Lytle’s 1995 clinical examination indicated that the claimant had lost a substantial portion of the range of motion in her left foot since his last evaluation on April 3, 1990, and a CT scan in 1995 indicated advanced subtalar arthritis consistent with an avascular segment. Dr. Lytle has recommended a fusion procedure to immobilize the left foot in an effort to decrease or eliminate the claimant’s left foot pain. [14] 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 321She is wearing inappropriate shoewear which I have counselled her at length about. I tell her today that I do not know why her foot is hurting. I have no anatomical explanation. I have no operative intervention that would relieve the pain. In short, I have nothing else to offer her for this problem at this time. She appeals to me to help her with her foot and perhaps find another doctor who could help her. I told her I would refer her to any doctor of her choice.
As for her foot injury from February, 1989, I think she has no permanent/partial impairment. She is encouraged to continue wearing the special shoes that have soft soles and wear the spinco and plastizote inserts and liners. I will refer her to an appropriate orthopedist if she so desires. Otherwise, my only recommendation would be continued use of anti-inflammatories as needed. I have no change in her current status at work. She is working a full forty hour work schedule. She does not ask to be off work.
(1983). Consequently, when subsequent complications are the natural and probable result of the original injury, the employer and insurer on the risk at the time of the original injury remain liable for subsequent complications. Burks,Inc. v. Blanchard, 259 Ark. 76, 531 S.W.2d 465 (1976). On the other hand, if the subsequent complications result from an independent intervening cause, the employer and carrier at the time of the original injury are relieved of liability for compensation benefits. However, the intervening incident must independently contribute to the claimant’s condition before the employer or carrier at the time of the original injury is relieved of liability. Bearden, supra. [15] Initially, we note that the claimant’s congenital flat foot condition preexisted the work-related injury sustained on February 5, 1989. With regard to preexisting conditions, the Arkansas Workers’ Compensation Law provides that a preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Commission v.Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. PoinsettLumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962);Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979). As is commonly stated, the employer takes the employee as he finds her. Murphree,supra. In such cases, the test is not whether the injury causes the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition. Little, supra. However, although a disabling symptom of a preexisting condition may be compensable if it is brought on by an incident arising out of and in the course of employment, the employee’s entitlement to compensation ends when her condition is restored to the condition that existed before the injury unless the injury contributes to the condition by accelerating or combining with the preexisting condition. See, Arkansas Power andLight Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959). [16] In the present claim, we find that the preponderance of the evidence establishes that the claimant sustained a temporary aggravation of her preexisting condition on February 5, 1989, which did not accelerate or combine with her preexisting condition, but instead completely resolved prior to the work-related incident that occurred on May 14, 1993. In that regard, the claimant’s testimony and the claimant’s medical records both indicate that the claimant sustained a relatively minor injury to the back of the foot on February 5, 1989, and Dr. Lytle ultimately released the claimant on April 3, 1990, with no permanent impairment from that injury. According to Dr. Lytle, the degenerative type problem has been developing since the claimant was in her teens, and could be exacerbated by any trauma, although running over the back of the foot with a cart does not normally cause the type of problems observed. [17] In reaching our decision that the claimant’s compensable injury sustained on February 5, 1989, resolved prior to the incident on May 14, 1993, we note that Ms. Lawson did not refer the claimant for any additional left foot treatment beyond April 3, 1990, until the claimant reported the second work-related incident that occurred on May 14, 1993. In addition, we note that the claimant presented to her personal physicians, Dr. Armstrong and Dr. Jacks, for a variety of ailments on at least 18 occasions between April of 1990 and May of 1993. However, the notes of Dr. Armstrong and Dr. Jacks during this period contain no reference to any complaints or any clinical observations related to problems with the claimant’s left lower extremity between April of 1990 and May of 1993. In that regard, the medical evidence indicates that the claimant received treatment on April 14, 1990 (low back and urinary problems), on September 21, 1990 (shoulder, breast and neck pain), on September 28, 1990 (breast wall tenderness), on October 31, 1990 (breast pain), on November 19, 1990 (dizziness, low back pain and urinary problems), on December 12, 1990 (sore throat and cold), on February 11, 1991 (cough and congestion), June 24, 1991 (pelvic pain and urinary problems), on August 19, 1991 (urinary problems, shoulder problems, and joint problems), on January 21, 1992 (headaches), on January 29, 1992 (back, abdominal, pelvic, and urinary problems), on April 14, 1992 (headaches, low back pain, and congestion), on September 15, 1992 (headaches), on April 18, 1992 (bladder problems), on August 12, 1992 (antibiotics), on October 19, 1992 (headaches), on October 20, 1992 (headaches), and on December 31, 1992 (neck pain). [18] In reaching our decision, we also note that Dr. Lytle later opined that he felt the claimant’s arthritic condition in 1995 was secondary to the work-related injury that he treated in 1990. However, Dr. Lytle also testified that he never took a history from the claimant in 1995, and that he was never made aware of the subsequent 1993 work-related incident prior to forming an opinion connecting the claimant’s arthritic condition in 1995 to her 1989 injury. Therefore, we find Dr. Lytle’s opinion in this regard entitled to little weight. Moreover, although Dr. Lytle was apparently unaware of the 1993 work-related injury prior to testifying in 1995, Dr. Lytle acknowledged that any type of traumatic injury could cause the claimant’s pain, and he testified that he would expect some degree of immediate pain following an initial injury that could intensify with time. [19] With regard to the incident which occurred on May 14, 1993, the claimant testified that her left foot was not inflamed before the incident occurred, and the claimant testified that when she stepped down it felt like bones were rubbing or as if something had clicked in her foot. According to the claimant, her foot became swollen and painful after the incident, and Dr. Bell’s records from May 18, 1993, indicate that he placed the claimant on crutches without weight bearing for one week after the incident. [20] Accordingly, after a de novo review of the entire record, and for the reasons discussed herein, we find that the preponderance of the evidence establishes that the claimant sustained a relatively minor exacerbation of her preexisting foot condition on February 5, 1989, which did not accelerate or combine with the preexisting condition to cause the claimant’s present problems. Moreover, we find that a preponderance of the evidence establishes that the injury sustained on February 5, 1989, totally resolved prior to the incident which occurred on May 5, 1993, and we find that the incident which occurred on May 5, 1993, independently contributed to the claimant’s subsequent medical problems. [21] We also find that respondent No. 1 proved by a preponderance of the evidence that any claim for additional benefits related to the 1989 compensable injury is barred by the Statute of Limitations. The Statute of Limitations is an affirmative defense which respondents bear the burden of proving by the preponderance of the evidence. Consequently, while the claimant bears the burden of filing a claim for compensation within the limitations period, she is not required to prove that she filed in time; instead, the respondents must prove that she did not file in time. See,Margie Grant v. Penn Athletic,, Full Worker’s Compensation Commission, May 27, 1992 (Claim No. D411709); GeorgeHastings v. Marianna Motor Company, Full Workers’ Compensation Commission, Jun. 11, 1986 (Claim No. D206442);Ellis Williams v. Bituminous, Inc., Full Workers’ Compensation, Sep. 23, 1985 (Claim Nos. B915325 C162509). [22] 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.” 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). In this regard, the key is that the employer must furnish the medical treatment in order to toll the limitations period. See, McFall v.U.S. Tobacco Co., 246 Ark. 43, 434 S.W.2d 838 (1969). Consequently, the receipt of medical treatment is not sufficient, standing alone, to prevent the Statute of Limitations from barring a claim. Instead, it must be shown that the employer furnished the medical services. [23] 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 him 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. EasterlingConstruction 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 does not necessarily begin running on the date of the accident. Wortham, supra. Instead, the limitations period does not begin running until the injury becomes compensable. Id. [24] In the present claim, although the claimant’s injury occurred on February 5, 1989, the claimant did not miss sufficient time from work to become entitled to indemnity compensation under Ark. Code Ann. § 11-9-501 (a) until November of 1989. Consequently, the limitations period to file a claim for additional benefits ran in November of 1991 unless the claimant received indemnity compensation or medical benefits for a sufficient period of time to further toll the limitations period. [25] The parties stipulated that the claimant’s indemnity compensation terminated on January 7, 1990. Therefore, the claimant did not receive indemnity compensation for a sufficient period to toll the limitations period beyond November of 1991. As discussed, the claimant’s medical records also establish that the claimant did not receive additional medical care for her left lower extremity from any physician between April 3, 1990 and May 18, 1993. [26] Nevertheless, the claimant asserts on appeal that the respondent employer provided her undocumented prescription medication for a sufficient period and at appropriate intervals after April 3, 1990, to toll the limitations period until after she was next treated by a physician for her left lower extremity on May 18, 1993. In this regard, we note that the furnishing of replacement medicine is payment of compensation for purposes of tolling the limitations period. Northwest Tire Service v. Evans,295 Ark. 246, 748 S.W.2d 134 (1988). [27] With regard to respondent No. 2’s procedure for providing prescription medication to injured employees between April of 1990 and May of 1993, MS. Lawson, the respondent hospital’s employee health nurse testified that the hospital had in place a “write-off” during that period by which the hospital would absorb the cost of prescription medication and no bills would be generated to an injured worker or the workers’ compensation carrier if the injured worker would go to the hospital’s pharmacy to get the prescription filled. [28] With regard to the claimant, Ms. Lawson testified that she thought the claimant would have obtained any medications by going through this procedure from 1990 to 1993, and Ms. Lawson testified that she could have contacted a physician on the claimant’s behalf during this period to have a prescription called in for the claimant. However, after weighing all of the evidence in the record, we find that the preponderance of the credible evidence establishes that the claimant did not receive undocumented prescription medication from respondent No. 2 at sufficient intervals between April of 1990 and May of 1993 to toll the limitations period. In that regard, Ms. Lawson acknowledged that only a physician could call in a prescription, and, as discussed, the medical records of the claimant’s physicians during the period indicate that the claimant never received any documented care for her foot or ankle between April of 1990 and May of 1993 much less a documented prescription for medication related to her foot. In addition, although Ms. Lawson testified that she could have called a physician in order to have the physician call a prescription into the hospital pharmacy for the claimant, Ms. Lawson also acknowledged that she has no written records regarding any complaints between 1990 and 1993 in addition to those documents submitted in the record, and she testified that she could not recall any conversation with a physician to request a physician to call in a prescription for the claimant during that period. Moreover, Ms. Lawson acknowledged that she is the employee nurse for over 1000 employees. [29] We also find that the claimant’s testimony in this regard is entitled to little weight. The claimant testified that she recalled periodically receiving medicine between 1990 and 1993 called in by Ms. Lawson to the hospital pharmacy. However, the claimant also testified later in the hearing that she really could not remember getting medication for her left foot in 1990, 1991, 1992 or 1993 up until May of 1993. In addition, the claimant testified that she did not recall receiving any over the counter medication or samples from respondent No. 2 during the period. At the hearing, the claimant did produce a prescription bottle for Relafen that she obtained at the hospital pharmacy prescribed by a Dr. John Crenshaw. However, the prescription bottle indicated that this prescription was not filled until June 23, 1993, i.e., after the second work-related injury. [30] In short, the testimony of Ms. Lawson indicates that the respondent employer engaged in a write-off program of providing prescription medication to injured employees between 1990 and 1993 for which there may be no reliable documentation available to confirm whether or not the respondent provided any particular injured worker replacement medication between 1990 and 1993. Therefore, we find that the lack of hospital or pharmacy records regarding prescription medication during this period is of little significance in establishing whether or not the respondent provided the claimant prescription medication between April of 1990 and May of 1993. However, we find that the office records of Dr. Armstrong and Dr. Jacks, indicating that they treated the claimant for various ailments on at least 18 occasions during the period without reference to any left foot complaints, left foot care, or any prescriptions related to care for the left foot, are entitled to significant weight on the issue of whether the claimant was prescribed or provided medication through the hospital pharmacy during the period. In addition, we find that the claimant’s testimony regarding possible prescriptions related to her left leg during the disputed period is entitled to little weight. In that regard, we note that the claimant’s testimony regarding whether she did or did not receive prescriptions through the hospital was contradictory, and the claimant’s testimony suggesting that Dr. Armstrong did in fact treat her foot during the period contradicts Dr. Armstrong’s records which indicate that he did not treat provide any care for the claimant’s left foot ankle or leg between April of 1990 and May of 1993. Ms. Lawson’s testimony establishes that the claimant could have received undocumented prescription medication provided by the respondent between April of 1990 and May of 1993. However, neither the claimant or Ms. Lawson could recall the respondent ever in fact providing undocumented medication to the claimant during this period. [31] Accordingly, after weighing the testimony of the claimant, Ms. Lawson, the medical records of Dr. Armstrong and Dr. Jacks and the claimant’s, other physicians, and all other evidence properly in the record, and for the reasons discussed herein, we find that the preponderance of the credible evidence establishes that the claimant did not receive replacement medication provided by either respondent No. 1 or respondent No. 2 during the period between April of 1990 and May of 1993, as she contends. Consequently, we find that respondent No. 1 is not estopped from asserting that the Statute of Limitations bars a claim for additional benefits for the claimant’s 1989 injury, and we find that the Statute of Limitations bars any claim for additional benefits related to the claimant’s 1989 injury. [32] Respondent No. 2 also argues that the claimant should be barred from receiving an award of benefits as a result of her having been prosecuted and sentenced for theft against respondent No. 2. However, respondent No. 2 has not cited us to any legal authority in support of that contention. Consequently, we find that the fact that the claimant has been prosecuted and sentenced for theft does not bar an award of benefits against respondent No. 2. [33] Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the preponderance of the evidence establishes that the claimant sustained a temporary aggravation to her preexisting flat foot condition on February 5, 1989, which completely resolved prior to May 14, 1993. In addition, we find that the preponderance of the evidence establishes that the claimant sustained an aggravation to her preexisting condition on May 14, 1993. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. In addition, we find that respondent no. 1 proved by a preponderance of the evidence that the Statute of Limitations bars any claim for additional benefits related to the claimant’s 1989 compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [34] 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
(1987). For prevailing on this appeal before the Full Commission, respondent No. 2 is hereby ordered to pay claimant’s attorney an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (b) (1987). [35] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[36] Commissioner Humphrey concurs. [37] Commissioner Wilson concurs in part and dissents in part.[38] CONCURRING AND DISSENTING OPINION
[39] I respectfully concur in part and dissent in part from the majority’s decision. First, I dissent from the finding that the claimant sustained an aggravation as opposed to a recurrence on May 14, 1993. Clearly, the claimant had an underlying condition in her foot which was aggravated by an injury in 1989. However, I cannot find that the claimant’s complications which developed on May 14, 1993 were caused by an independent intervening incident and not the natural and probable result of claimant’s 1989 injury. Dr. Lytle treated the claimant after the 1989 injury and after the 1993 complications. Dr. Lytle testified that claimant’s complications for which he treated the claimant in 1995 were caused by the 1989 injury and the claimant’s degenerative condition which predated the 1989 injury. Moreover, claimant, herself, does not place any emphasis on or seriously contend that the May 14, 1993 incident where she merely stepped down caused her subsequent problems. Claimant testified at the hearing and advised during the functional capacity evaluation that she has never recovered from her 1989 injury and that the 1989 injury was the sole source and cause of her continuing foot problems. Accordingly, I find that the claimant has failed to prove by a preponderance of the evidence that she sustained an aggravation of her underlying condition on May 14, 1993. In my opinion, claimant’s complications in May of 1993 were simply a recurrence of her previous injury.
[41] The record reveals that the claimant did not file a claim for additional compensation within the specified time period. In this regard, I concur with the majority’s finding. Therefore, for those reasons set forth above, I respectfully dissent in part and concur in part with the majority opinion. [42] MIKE WILSON, CommissionerIn 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 injury, whichever is greater.