BRAND v. WAYNE POULTRY, 1994 AWCC 38

CLAIM NO. D916770

GENEVA P. BRAND, EMPLOYEE, CLAIMANT v. WAYNE POULTRY, EMPLOYER, RESPONDENT and AETNA INSURANCE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 22, 1994

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

Claimant represented by the HONORABLE JOSEPH W. SEGERS, III, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE H. CHARLES GSCHWEND, 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 August 11, 1993. In that opinion and order, the administrative law judge found that the claim is barred by the statute of limitations. After conducting a de novo review of the entire record, we find that a preponderance of the evidence establishes that the statute of limitations bars this claim. Therefore, we find that the administrative law judge’s decision must be affirmed.

[3] In lieu of a full hearing, this claim was submitted on a record consisting of documentary evidence, the stipulations of the parties, and the briefs of the parties. The claimant was employed by the respondent as a line worker, and she worked approximately twenty years for the respondent as a crop puller. At some point, she began to experience pain in her right upper extremity, and, as early as November 4, 1986, she sought treatment from Dr. James O. Pennington for these complaints. These problems persisted, and she ultimately came under the care of Dr. Richard May, an orthopedic specialist. Dr. May ordered electrodiagnostic studies in July of 1987, and these studies indicated mild carpal tunnel syndrome on the right. Ultimately, in December of 1988, Dr. May surgically released the right carpal tunnel on an out-patient basis.

[4] After the surgery, the claimant developed a stitch abscess with staph aureus, and Dr. May advised her to avoid gripping and contamination. On January 13, 1989, Dr. May noted that there was no sign of infection or inflammation. Then, on January 27, 1989, Dr. May released the claimant to return to limited duty work, with no repetitive tight gripping. The claimant did return to work as a spreader. On March 27, 1989, Dr. May released her to unlimited duty. However, when the claimant returned to work, she again began to experience problems with her right hand. Consequently, she returned to Dr. May on June 12, 1989. In his office note of that visit he states that the claimant “is just not bearing up well under the repetitive type work and unfortunately that is all that is available at . . .” the respondent employer. As a result of her problems with repetitive work, Dr. May advised the claimant to seek other employment, and his notes indicate that she advised him that she might try working in a cafe. On July 7, 1989, the respondent employer discharged the claimant because she could not perform her employment duties due to medical reasons.

[5] 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 respondent must prove that she did not file in time. See, Margie Grant v. PennAthletics, Full Workers’ Compensation Commission, May 27, 1992 (Claim No. D411709); George Hastings v. Marianna MotorCompany, Full Workers’ Compensation Commission, Jun. 11, 1986 (Claim No. D206442); Ellis Williams v. BituminousInc., Full Workers’ Compensation Commission, Sept. 23, 1985 (Claim Nos. D915325 C162509).

[6] 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 her to benefits under Ark. Code Ann. § 11-9-501 (a) (1987). See, 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-McBridePrinting Co., 217 Ark. 625, 232 S.W.2d 651 (1950);Shepherd v. Easterling Construction Co., 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 claimant is entitled to indemnity compensation under Ark. Code Ann. § 11-9-501 (a). Id. InWortham, the Court explained this as follows:

In Donaldson, this court held that, for purposes of commencing the statute of limitations under § 11-9-702 (a)(1), the word “injury” is to be construed as “compensable injury,” and that an injury does not become “compensable” until (1) the injury develops or becomes apparent and (2) the claimant suffers a loss in earnings on account of the injury. Donaldson, 217 Ark. at 629-631, 232 S.W.2d at 654. Thus, the statute of limitations does not begin to run until both elements of the rule are met. Therefore, Arkansas is technically a “compensable injury” state. . . .

[7] In the present claim, we find that the preponderance of the evidence establishes that the claimant became incapacitated from earning for a sufficient period of time to be entitled to compensation at least by July 7, 1989, when her employment was terminated. Consequently, we find that the statute of limitations began running at that time. However, she filed a claim for compensation with the Commission on November 2, 1989. Since this claim was filed within two years from the date that the statute of limitations began running, it was timely filed.

[8] Nevertheless, Ark. Code Ann. § 11-9-702 (a)(1) (1987) also contains the following provisions:

. . . If, during the two-year period following the filing of the claim, the claimant receives no weekly benefit compensation and receives no medical treatment resulting from the injury, the claim shall be barred thereafter.

[9] In this regard, the parties have stipulated that the claimant did not receive any weekly benefit compensation or medical treatment resulting from the injury during the two years after the filing of the claim. Consequently, we find that the claim is barred by the statute of limitations.

[10] In reaching this decision, we note that the November 2, 1989, filing was an original claim for compensation. Ark. Code Ann. § 11-9-702 (a)(1) governs original claims for compensation, and Ark. Code Ann. § 11-9-702 (b) governs claims for additional compensation. By its express terms, the provision regarding claims for additional compensation is applicable whenever compensation for disability has been paid on account of injury. Ark. Code Ann. § 11-9-702 (b). Therefore, a claim is for additional compensation only if the claimant is requesting compensation in addition to, or “over and above” what she has already received. ArkansasPower Light Co. v. Giles, 20 Ark. App. 154, 725 S.W.2d 583
(1987).

[11] In the present claim, as discussed, the parties have stipulated that no compensation other than medical expenses has been paid. However, based on the statutory definitions of “disability” and “injury,” our Courts have expressly found that the payment of medical expenses alone does not constitute a payment of compensation for disability on account of injury. Donaldson v. Calvert-McBride PrintingCo., supra; Shepherd v. Easterling Construction Co., supra.
In both Donaldson and Shepherd, the Courts rejected the argument that payment of medical expenses alone commenced the running of the limitations period, and, in doing so, both expressly rejected the argument that Ark. Code Ann. § 11-9-702 (b) has any applicability where only medical compensation has been paid. In this regard, both decisions contain the following statement:

Obviously, this medical payment was not and could not have been a “payment of compensation . . . on account of such injury (compensable injury)”. . . .

[12] Therefore, in the present claim, the parties’ stipulation that the claimant did not receive any weekly compensation benefits establishes that the November 2, 1989, claim was an original claim for compensation.

[13] We also note that the facts in the present case differ from those in the case of Margie Grant v. Penn Athletics,
Full Workers’ Compensation Commission, May 27, 1992 (Claim No. D411709). In Margie Grant, the Full Commission found that the preponderance of the evidence failed to establish that the statute of limitations had begun to run. As is apparently true in the present claim, in Margie Grant, the claimant did not miss a sufficient time from work to be entitled to indemnity compensation prior to the time that her employment was terminated. However, unlike the present claim, in Margie Grant, the claimant’s employment was terminated due to a shut down of the plant, and there was no evidence indicating when, or if the claimant became incapacitated from earning as a result of the injury. On the other hand, in the present claim, the preponderance of the evidence establishes that the claimant’s employment was terminated due to her inability to perform her employment duties as a result of the effects of the injury. Consequently, the two cases are clearly distinguishable.

[14] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claim filed by the claimant on March 6, 1989, was an original claim for compensation and that the provisions of Ark. Code Ann. § 11-9-702 (a)(1) are applicable. Consequently, we find that a preponderance of the evidence establishes that the claim is barred by the statute of limitations due to the fact that the claimant did not receive any weekly benefit compensation or medical treatment as a result of the injury during the two year period following the filing of the claim. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed.

[15] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[16] Commissioner Humphrey dissents.

[17] DISSENTING OPINION
[18] I must respectfully dissent from the opinion of the majority finding that this claim is barred by the statute of limitation.

[19] There is insufficient evidence that the statute of limitations has begun to run. The statute of limitations is an affirmative defense, which respondent must prove by a preponderance of the evidence. Margie Grant v. PennAthletics, Full Commission opinion filed May 27, 1992 (D411709). Respondent must prove that the statute of limitations has begun to run and that claimant did not file in time. The statute of limitations does not begin to run until the true extent of the injury manifests and causes an incapacity to earn wages which persists long enough to entitle claimant to benefits under Ark. Code Ann. § 11-9-501. In my opinion, there is insufficient evidence establishing when, or even if, claimant sustained an incapacity to earn because of the injury or that any such incapacity lasted long enough to entitle her to compensation for disability.

[20] The parties stipulated that only medical benefits have been paid on this claim and that respondent has never paid claimant any indemnity benefits. In respondent’s response to the prehearing questionnaire it stated “this claim has been and will continue to be handled as a compensable medical only claim.” Respondent contended further that claimant was not entitled to any benefits for temporary total disability and that the employer had suitable light duty work within claimant’s restrictions but she voluntarily left her employment with the employer on or about July 7, 1989. Moreover, there is no evidence in the record concerning whether or not claimant was employed subsequent to her employment with the employer. We simply don’t know one way or the other.

[21] The question is not whether claimant has “suffered a loss of earnings” or even whether claimant is actually working at all. It is whether claimant has the capacity to earn in the same or any other employment the wages which she was receiving at the time of the injury. Thus, even if claimant had not worked anywhere after her termination by the employer, there is no evidence that she did not have the capacity to earn in any other employment the wages she was receiving at the time of the injury. Therefore, respondent has failed to prove by a preponderance of the evidence that the statute of limitations has begun to run.

[22] For the foregoing reasons, I dissent.

[23] PAT WEST HUMPHREY, Commissioner