BRADFORD v. PETERSON FARMS, 2002 AWCC 57


CLAIM NO. E313909

SUSAN BRADFORD, EMPLOYEE, CLAIMANT v. PETERSON FARMS, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 6, 2002

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

Claimant represented by the HONORABLE LINDSLEY ARMSTRONG SMITH, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of the Administrative Law Judge: Reversed

OPINION AND ORDER
The claimant appeals a decision by the Administrative Law Judge finding that the claimant’s claim for additional benefits was barred by the statute of limitations. Based upon our de novo review of the record, we reverse the decision of the Administrative Law Judge.

The claimant sustained an admittedly compensable injury to her left eye while working for the respondent-employer on August 5, 1993. The claimant was using a chemical to clean machines when some of the chemical splashed into her left eye. As a result of that compensable injury, the claimant has undergone a significant amount of medical treatment relating to her left eye. The claimant has essentially lost vision in the left eye, except for light perception.

The claimant filed this claim, contending that she was entitled to additional medical treatment as a result of her compensable injury. The respondent contends that the claimant’s claim for compensation benefits is barred by the statute of limitations. In making this argument, the respondent asserts that the claimant’s visit to Dr. Boozman on July 16, 1999 was not reasonably necessary for treatment of the claimant’s left eye injury. For reasons discussed below, we find that Dr. Boozman’s examination of the claimant’s left eye on July 16, 1999 was reasonably necessary medical treatment for the claimant’s chronic and severe left eye injury. Consequently, we find that Dr. Boozman’s July 16, 1999 examination tolled the running of the statute of limitations during the time span at issue in this case.

The appropriate statute of limitations regarding the filing of claims for additional compensation benefits is codified at A.C.A. §11-9-702(b)(1) which states in pertinent part:

(b) Time for Filing Additional Compensation. (1) In cases where any compensation, including disability or medical, 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.

The furnishing of medical treatment constitutes compensation for the purpose of this statute. However, it is the furnishing of medical treatment, not the actual payment for those services, which constitutes the payment of compensation for purposes of this statute. Heflin v.Pepsi-Cola Bottling Company, 195 Ark. 244[244 Ark. 195], 424 S.W. 365
(1969); Cheshire v. Foam Molding, 37 Ark. App. 78, 822 S.W.2d 412
(1992). An employer is deemed to be furnishing such services if it has either actual notice or has reason to know of a claimant receiving medical treatment. See Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). 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. 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. See Plante v. TysonFoods, 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.Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463
(1997).

The respondent asserts that the claimant last received payment of compensation on November 23, 1998. One year from that date would have been November 23, 1999. The evidence reflects that the claimant’s claim for additional compensation benefits did not occur until a letter was filed by the claimant’s counsel dated November 1, 2000. Clearly, this is more than one year later.

In support of the claimant’s contention that the one-year statute of limitations did not run, the claimant contends that she sought medical treatment during the period in question. Specifically, the claimant points to a visit in July of 1999 that the claimant asserts would toll the running of the statute of limitations. The respondent asserts that the claimant was not treated for any left eye complaints on that July 16, 1999, visit. In this regard, Dr. John Boozman reported in his typed letter of that date to Ms. Judy Bourne at Sedgwick James of Arkansas, Inc. that:

[Claimant] was seen in the clinic on July 16, 1999. At that time, she felt she was having pain in and around the right eye and also some decreased vision in the right eye. Examination showed that the right eye was moderately irritated and for this reason, she was given a prescription for an anti-inflammatory drug to be used 4 times a day for about a week to resolve the problem.

As the dissent correctly notes, there is absolutely no mention by Dr. Boozman in this letter of any complaints or treatment that the claimant received on that date regarding her left eye injury. The problem with the dissent’s analysis, however, is that it completely disregards Dr. Boozman’s accompanying July 16, 1999 office notes which indicate examination and diagnosis of both eyes, not just the right eye.

The respondent’s brief on appeal acknowledges that Dr. Boozman’s standard clinical procedure was to examine both eyes. By our calculations using the office notes in the record, the claimant received approximately the following number of clinical left eye examinations in the indicated years in this case:

1993 — 28 1996 — 6 1999 — 1

1994 — 13 1997 — 4 2000 — 2

1995 — 13 1998 — 6

Our review of Dr. Boozman’s notes also indicates that Dr. Boozman did not routinely schedule long-term follow-up examinations, but generally left it up to the claimant to return if she had problems. The longest
interval the claimant ever went without examination between 1993 and 1998 was eight months, and that only occurred once. Likewise, approximately 8 months elapsed again between the claimant’s last examination on November 23, 1998 and the examination currently at issue on July 16, 1999.

In summary, our review of the record establishes that the examination Dr. Boozman performed on the claimant’s left eye on July 16, 1999 was reasonably necessary treatment as routine follow-up for the left eye (even though the claimant apparently scheduled the visit for right eye irritation) in light of (1) the nature of the claimant’s left eye injury, (2) the extent of the left eye injury, (3) the severity of the left eye disability, (4) Dr. Boozman’s predictions early on that the claimant would have recurrent problems, (5) the claimant’s recurrent left eye inflammations/irritations documented between 1993 and 1998, (6) the frequency of the claimant’s examinations between 1993 and 1998 (listed above), and (7) the relatively long period of time (8 months) between the claimant’s last examination in 1998 and the examination at issue in 1999. Likewise, we find that the claimant’s subsequent examinations in the hearing record are also reasonably necessary treatment of the claimant’s chronic left eye injury for these same reasons.

Consequently, we reverse the Administrative Law Judge’s finding that the claimant’s current claim for benefits is barred by the statute of limitations. We find that the respondent is liable for all examinations to and treatment for the claimant’s left eye documented in the hearing record.

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 (Supp. 2001).

The claimant’s attorney is entitled to the maximum statutory fee on the medical benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondent, pursuant to Ark. Code Ann. § 11-9-715(a). See Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990). For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250 in accordance with Ark. Code Ann. § 11-9-715(b)(1).

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner

Commissioner Yates dissents.

DISSENTING OPINION

JOE E. YATES, Commissioner

I respectfully dissent from the majority opinion finding that the claimant’s claim for additional benefits was not barred by the statute of limitations. Based upon my de novo review of the record, I find that the claimant failed to meet her burden of proof.

The claimant contends that she sought medical treatment on a yearly basis and points to a visit in July of 1999. Those visits were not paid for by the respondent. The evidence reflects that the claimant was not treated for any left eye complaints on that July 16, 1999, visit. Dr. John Boozman reported:

[Claimant] was seen in the clinic on July 16, 1999. At that time, she felt she was having pain in and around the right eye and also some decreased vision in the right eye. Examination showed that the right eye was moderately irritated and for this reason, she was given a prescription for an anti-inflammatory drug to be used 4 times a day for about a week to resolve the problem.

There is absolutely no mention by Dr. Boozman of any complaints or treatment that the claimant received regarding her left eye injury. The bill for medical services from this July 16, 1999, office visit indicate that the claimant was treated for conjunctivitis and allergic reaction in her right eye. The claimant argues that the medical chart said that Dr. Boozman noted “possible macula changes to her left eye.” This is simply a noted observation in Dr. Boozman’s standard examination of both of the claimant’s eyes. This is not an indication that the claimant presented to Dr. Boozman for treatment for problems with her left eye. In order for the claimant to have successfully tolled the statute of limitation, the furnishing of services must be reasonably necessary in connection with the injury that she received. Clearly, the medical evidence shows that the treatment that the claimant received in July of 1999 was for her right eye and not her compensable left eye injury. I would note, that on every visit prior to July 16, 1999, the same diagnosis was in the diagnosis section of the medical form. However, that previous diagnosis was not the diagnosis the claimant received on the July 16, 1999, form.

Therefore, after I consider all the evidence, I find that the claimant has failed to meet her burden of proof that the July, 1999, visit with Dr. Boozman tolled the statute of limitations. The evidence shows that the claimant last received payment of compensation on November 23, 1998. One year from that date would have been November 23, 1999. The evidence reflects that the claimant’s claim for additional compensation benefits did not occur until a letter was filed by the claimant’s counsel dated November 1, 2000. Therefore, I must respectfully dissent from the majority opinion.

_______________________________ JOE E. YATES, Commissioner