CLAIM NO. E115581
EMMA BOOKER, EMPLOYEE, CLAIMANT v. ROSE CARE, INC., SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 17, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appears pro se.
Respondents represented by the HONORABLE GAIL O. MATTHEWS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on January 24, 1996. In that opinion and order, the administrative law judge found that this claim is barred by the statute of limitations. After conducting a de novo review of the entire record, we find that the claim is not barred by the statute of limitations. We find, however, that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury and therefore affirm the administrative law judge’s decision denying the claim.
[3] Claimant is 56 years old and began working for respondent as a certified nurse’s assistant in August 1991. Her duties included helping patients walk, dress, bathe, and eat. She contends that on September 9, 1991, she sustained a compensable injury when a patient grabbed her by the throat. According to the claimant, she pulled her shoulder and lower back when she bent over immediately after the attack. She said that she reported it to the nurse, and was later told to see Dr. Bill Evans at St. Vincent’s Circle. She testified that when she went to the doctor on September 13, 1991, she was told she could not return because the insurance company was not going to pay for the visit. Claimant also testified that she later talked with an attorney who told her there was nothing that could be done.
[4] The claimant testified that in 1992, she went to the Workers’ Compensation Commission and saw a receptionist who took her papers, but that she never spoke with anyone else. In this regard, the evidence reflects that the claimant did in fact file a claim for compensation on September 26, 1991. Claimant then moved to California, where she was treated by a physician. She testified that the doctor in California told her that she had a lumbar sprain. She also testified that a California attorney told her she would have to return to Arkansas to move forward with her claim.
[5] John Bennett, a claims adjuster for Self-Insured Services, testified that he investigated the claim in 1991, that he went to the claimant’s apartment, and that he notified the claimant on September 30, 1991, that her claim was controverted. He testified that an A-9 was filed with the Commission and that the claimant was notified by letter, but that it was not until summer 1995 that he heard from the claimant again. The claimant testified that in 1991, Mr. Bennett told her over the telephone that she would get a check in the mail in two weeks. She testified, however, that she never called him back, and that she has no written correspondence from the Commission or from Mr. Bennett, since all conversations took place by phone.
[6] The evidence reflects that the claimant was notified by the Commission in a letter dated October 3, 1991, that the respondent controverted her claim. The letter indicated that if the claimant needed to discuss her options, she could call the Commission and speak with an advisor. Although the claimant acknowledges that she lived at the address to which the letter was sent, she denies that she received the letter. The claimant contacted the Commission in June 1995 for the first time since 1992 to check on the status of her claim.
[7] The respondent contends that this claim 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 the claim in time; instead, the respondents must prove that she did not file the claim in time. See, Margie Grant v. Penn Athletic., Full Worker’s Compensation Commission, May 27, 1992 (Claim No.
D411709);George Hastings v, Marianna Motor Company, Full Workers’ Compensation Commission, Jun. 11, 1986 (Claim No.
D206442);Ellis Williams v. Bituminous. Inc., Full Workers’ Compensation, Sept. 23, 1985 (Claim Nos.
B915325 C162509).
[8] Under Ark. Code Ann. §
11-9-702(a)(1) (Michie 1987), an original claim for compensation is barred unless filed within two years from the date of injury. Consequently, the filing of an original claim for compensation satisfies the statutory requirement, suspends the running of the statute, and prevents the bar of the statute, so long as weekly benefit compensation or medical treatment is received within two years after the claim is filed. A claim is an original claim for compensation if it is filed before the claimant receives compensation for disability on account of injury.
[9] In the present case, the claimant filed a claim for compensation on September 26, 1991, alleging that she sustained a compensable injury on September 7, 1991. The evidence reflects that the claimant saw Dr. Bill Evans at St. Vincent Circle on September 12, 1991. Therefore, the claimant filed a claim within two years from the date of the compensable injury. In addition, the claimant received treatment from Dr. Bill Evans. Dr. Evans noted in an October 14, 1991, letter that after the claimant failed to respond to conservative treatment, he placed her on physical therapy for three weeks. He noted that following the therapy, the claimant showed significant improvement. Thus, based on the evidence presented, we find that the respondent has failed to prove that the claimant did not file her claim in time. Thus, we find that this claim is not barred by the statute of limitations.
[10] We find, however, that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury. The claimant is alleging that she sustained a compensable injury on September 26, 1991. Therefore, we note that the resolution of this claim is based on the law existing prior to the passage of
Act 796 of 1993. For an employee’s injury to be compensable under the law prior to 1993, it must result from an injury “arising out of and in the course of employment.” Ark. Code Ann. §
11-9-401 (Michie 1987). The phrase “[a]rising out of the employment’ refers to the origin or cause of the accident,” so it must be shown that a causal connection exists between the injury and his employment. Gerber Products v. McDonald,
15 Ark. App. 226,
691 S.W.2d 879 (1985). An injury occurs “in the course of employment” when it occurs “within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose, or advancing the employer’s interests directly or indirectly.”City of El Dorado v. Sartor,
21 Ark. App. 143,
729 S.W.2d 430 (1987).
[11] In the present claim, we first note that the claimant did not make any effort to pursue a claim for her alleged injuries for a significant number of years. Furthermore, we note that the claimant’s testimony is essentially the only evidence in the record which supports her claim, and we find that the credibility of her testimony is greatly diminished by inconsistent and false statements. In this regard, the claimant contends that her shoulder and lower back were injured when a patient grabbed her throat on September 9, 1991. However, the claim she filed with the Commission on September 26, 1991, indicates that she sustained the injury on September 7, 1991. Also, she testified that she went to the doctor the following day, but the evidence reflects that she first saw a doctor on September 12, 1991. More significantly, the evidence indicates that the claimant was not truthful, or at least that she was intentionally deceptive, when completing her employment application with the respondent employer. In this regard, the evidence reflects that before this injury, the claimant suffered two previous injuries to her lower back. However, she did not disclose either injury on her job application with the respondent employer. Moreover, the claimant denied receiving a settlement for an injury sustained while she was employed by Baptist Hospital, but the record indicates that the claimant settled the claim for $2,000.
[12] We recognize that she testified that she did not disclose the previous injuries because she “wasn’t injured anymore.” Likewise, she testified that she also did not disclose that she had been in the hospital in conjunction with her previous injuries, because she wasn’t injured anymore. However, she also failed to disclose this information in response to questions asking whether she had filed for workers’ compensation benefits previously, whether she had ever had problems with her back previously, and whether she had ever had problems with her arms or shoulders previously. She ultimately conceded that she would not have gotten the job if she had disclosed those things. In short, essentially the only evidence supporting this claim is found in the claimant’s own testimony. However, we find that the weight that her testimony is entitled to receive is greatly diminished by her lack of veracity. We therefore find that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury.
[13] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant’s claim is not barred by the statute of limitations. We find, however, that she has not proved by a preponderance of the evidence that she sustained a compensable injury. We, therefore, affirm the administrative law judge’s decision denying the claim.
[14] IT IS SO ORDERED.
JAMES W. DANIEL Chairman ALICE L. HOLCOMB, Commissioner
[15] Commissioner Humphrey dissents.
