CLAIM NO. E112173
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 7, 2006
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Frederick S. Spencer, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by the Honorable Walter A. Murray, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant was initially injured in 1991. The respondents cut off the claimant’s receipt of benefits on August 8, 1994. The claimant filed a timely request for additional benefits. A hearing was held on September 20, 1995. The parties stipulated that the claimant sustained compensable lumbar injuries on February 5, 1991, and on July 29, 1991. They also stipulated that the respondents accepted and paid a 10% impairment rating for those injuries. On December 20, 1995, an Administrative Law Judge issued a decision finding that the claimant failed to prove she was permanently and totally disabled or that she was entitled to benefits above the 10% anatomical rating previously paid by the respondents. The Administrative Law Judge did award additional medical benefits, excluding those for treatment of depression. The Full Commission subsequently issued a decision on November 18, 1996. In that decision, the Commission affirmed the Administrative Law Judge and denied the claimant additional benefits in the form of wage loss benefits or an additional impairment rating. They also reversed the portion of the Administrative Law Judge’s decision which had awarded medical benefits. The claimant filed an appeal of the Commission’s decision; however, it was never perfected.
On October 27, 1997, the claimant filed a request for another hearing. On June 21, 2000, an Administrative Law Judge issued a decision finding that the claimant filed a request for additional benefits on October 27, 1997, but that it was barred by the statute of limitations under Ark. Code Ann. § 11-9-702(b). Likewise, the Administrative Law Judge ruled that the claim was barred by the provisions of § 11-9-713(a) and that the claimant’s worsened condition was due to degenerative changes rather than to her compensable injuries. The claimant appealed the decision to the Full Commission. On February 14, 2001, the Commission issued a decision finding that the statute of limitations did not bar the claimant’s request for additional benefits. They also found that the claimant’s request for additional medical treatment was related to her compensable injuries. Finally, the Commission remanded the case to an Administrative Law Judge to enter findings of fact regarding whether the claimant was entitled to a modification of an award pursuant to § 11-9-713 and whether she was entitled to an additional impairment rating.
The respondents filed an appeal with the Arkansas Court of Appeals. In a decision dated December 12, 2001, the Court of Appeals found the Commission’s decision was not a final, appealable order and dismissed the appeal. The case was sent back before an Administrative Law Judge. On August 29, 2002, an Administrative Law Judge issued a decision finding that the claimant’s, “request to modify the previous order,” was not barred by the statute limitations. He also awarded additional medical treatment and permanent and total disability benefits, including an additional 13% impairment rating.
The respondent appealed and on August 5, 2003, the Full Commission affirmed and adopted the August 29, 2002, decision of the Administrative Law Judge as their own. The respondents subsequently filed an appeal with the Court of Appeals. It is from that decision that the case is back before the Commission.
In a decision dated November 16, 2005, the Court of Appeals remanded to the Commission to issue findings as to whether the claimant is requesting additional benefits, a modification of a previous order, or both. The Court further directed that once these findings were made, the Commission needed to clarify how the appropriate statute of limitations would apply to the claim.
The respondents argue that the claimant’s October 27, 1997, request was tantamount to a request for modification of a previous order. They further argue that in the event the claimant’s request was a request for additional benefits, the Savings Statutes should not be applied and that the claimant’s request is still barred by § 11-9-702. The claimant argues that his October 1997 correspondence was a request for additional benefits. He further contends that even if his request was a request for modification of a previous order, then there is a conflict of statutes which would mandate a one-year statute of limitations and would make his claim toll the statute of limitations.
After a de novo review of the record, we find it is evident that the claimant’s October 27, 1997, correspondence amounted to a request for an award of additional benefits. We specifically find that it was not a request for a modification of a previous order. We also find that as a request for additional benefits, the claimant’s request was not barred by the statute of limitations pursuant to Ark. Code Ann. § 11-9-702. Last, we find that while the Savings Statutes are not applicable, pursuant to the provisions of § 11-9-702 the claimant’s 1997 request appropriately tolled the statute of limitations.
The claimant’s injury occurred in 1991. Accordingly, the law that was in effect prior to Act 796 of 1993 is controlling. Under the law in effect at the time of the claimant’s injury, a claim for additional compensation was considered to be a request for compensation in addition to, or “over and above” those benefits already received. Arkansas Power Light Co. v. Giles,20 Ark. App. 154, 725 S.W.2d 583 (1987). Furthermore, any communication indicating additional benefits are being sought was considered to be sufficient to constitute a claim for additional benefits.Cook v. Southwestern Bell Telephone Co., 21 Ark. App. 29, 727 S.W.2d 862(1987).
The request that is in question occurred on October 27, 1997. At that time the claimant filed a request for another hearing. His letter provided as follows,
Enclosed please find a copy of a report from Dr. Bert Park and medical records from Cox Medical Center. Please re-assign this case to an administrative law judge for the setting of a hearing on additional benefits, including but not limited to the modification of an award pursuant to Ark. Code Ann. Sect. 11-9-713(a)(2).
On December 8, 1997, a Pre-hearing Order was issued. It indicated that the claimant, “contended that she has undergone a change of condition and should be awarded benefits for permanent total disability and an attorney’s fee for controversion. Other possible issues were reserved.”
An Amended Prehearing Order was entered on August 4, 1999. It listed the issues as follows:
1. Claimant is requesting a modification of an award pursuant to Ark. Code Ann. Sect. 11-9-713(a)(2) and her condition has deteriorated and she has undergone two additional surgeries to date: a lumbar semihemilaminectomy with disc removal on 5/10/97 by Dr. Bert Park, and subsequently, a lumbar laminectomy and diskectomy performed by Anthony D. McBride on 9/3/98. Claimant has been assigned a total impairment of 13% by Dr. Anthony McBride on 7/20/99 which we contend Arlene is entitled to. See attached report.
2. Claimant is permanently and totally disabled.
3. Respondents have not paid medical bills.
From these documents, it is clear that the claimant was requesting benefits associated with her surgeries in 1997 and 1998. As there had previously been no adjudication with respect to the claimant’s entitlement to the medical treatment in the form of surgery by Dr. Park and Dr. McBride or to the resultant impairment caused by those surgeries, it is apparent that the claimant was requesting additional benefits. Since this treatment was new it had not been adjudicated and therefore constituted benefits, “over and above” those that she previously sought. Additionally, the claimant’s request for an impairment rating associated with her surgeries certainly would not have been available or in consideration prior to having the surgery. Accordingly, we find that the October 27, 1997, request was a request for additional benefits.
We note that the claimant’s attorney specifically requested benefits pursuant to § 11-9-713. We also note that he indicated that the claimant’s condition had, “deteriorated”. However, we also note that he seemed to use the terms “modification of a previous order” and “additional benefits” interchangeably. We also note that prior to Act 796, the claimant was not required to specifically indicate that they were requesting additional benefits. Rather if a claim was filed and it was apparent that the claimant was asking for additional benefits, that was sufficient to constitute an additional claim. Furthermore, even since Act 796, the Arkansas Court of Appeals has indicated that the content of the requested benefits should be examined rather than simply relying on the specific language used in the request.See, Dillard v. Benton County Sheriff’s Office,
___ Ark. App. ___, ___ S.W. 3d ___ (September 22, 2004). As noted above, the claimant was asking for benefits previously not in consideration, accordingly, in our opinion, it is evident that the claimant’s attorney was seeking additional benefits.
When applying the statute of limitations provided for by §11-9-702(b), it is apparent that the claimant’s request for additional benefits is not barred. 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 injury, whichever is greater.
The timely filing of a claim for additional workers’ compensation benefits tolls the statute of limitations until the claim is decided. See, Bledsoe v. Georgia-Pacific Corp.,12 Ark. App. 293, 675 S.W.2d 849, (1984); See also, Giles,supra; Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986); Brake v. The Kroger Company, Full Workers’ Compensation Commission, Opinion filed March 7, 2003, (E702191); Shelly S. Cooper v. Cleo, Inc., Full Workers’ Compensation Commission, Opinion filed March 29, 2000 (E518275); Michelle T.Underwood v. TEC, Full Workers’ Compensation Commission, Opinion filed April 15, 1992 (D708150); Bernie Barker v. NationalTransportation, Full Workers’ Compensation Commission, Opinion filed August 19, 1993 (D803687).
In the present matter, the claimant’s compensable injuries occurred in 1991, and the respondents ceased paying worker’s compensation benefits to the claimant after August 8, 1994. According to a Pre-hearing Order filed with the Commission in February, 1995, the claimant contended that she was entitled to additional anatomical impairment and permanent total disability benefits. This timely-filed claim for additional benefits, filed within one year of the last payment of compensation tolled the statute of limitations until the claim was decided.
Thereafter, the Full Commission affirmed an administrative law judge’s denial of additional benefits to the claimant in a Full Commission opinion filed November 18, 1996. The statute of limitations began running again at that time. The claimant subsequently asked for more benefits on October 27, 1997. Therefore, this second filing for additional benefits was also clearly filed within the one year period permitted once the prior claim was decided by the Full Commission order filed on November 18, 1996.
Even if one were to find the claimant’s request for benefits constituted a request for modification of a previous award (a finding which we do not make), then the record is still evident that at least a component of the claimant’s request for benefits was due to receiving new impairment ratings after her surgeries. Accordingly, a conflict of § 11-9-702 and § 11-9-713 would arise. The Arkansas Supreme Court has addressed this statutory conflict and in Reynold’s Metal Company v. Brumley, 226 Ark. 388, 290 S.W.2d 211 (1956), indicated as follows,
In this situation we are committed to the rule that if a substantial doubt exists as to which is the applicable statute of limitations, the longer rather than the short period of limitation is to be preferred and adopted. Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884. This rule is in harmony with our settled policy of giving a broad and liberal construction to the provisions of the Compensation Act to effectuate its purposes and the further policy of resolving doubtful cases in favor of the claimant.
Furthermore, the Arkansas Court of Appeals has indicated that when a claimant seeks additional benefits subsequent to a final award, that while § 11-9-713 provides the criteria for a basis for a claim, then § 11-9-702(b)(1) governs the statute of limitations. Southern Wooden Box Co. v. Smith, 5 Ark. App. 14, 631 S.W.2d 620 (1982). This means in effect, that the one-year statute of limitations provided by § 11-9-702 would be controlling. In the present case, the application of the above principle would illustrate that the claimant’s second request for benefits would be subject to a one-year statute of limitations and would not be barred.
With respect to the respondent’s argument regarding the Savings Statutes, we note that the respondent did not raise this argument before the Administrative Law Judge or in their prior briefs to the Commission. In fact, it appears that this issue was not raised until their brief to the Commission in March 2006. It is also apparent that in prior briefs, the respondent contended that if the claimant’s October 1997 request was ruled to be a claim for additional benefits no statute of limitations problem would exist. Accordingly, we find that issue is not properly before the Commission.
In Eckwood v. Aert, Full Workers’ Compensation Commission, Opinion filed February 16, 2001, (E912606), this Commission stated,
Initially, we note that the respondents did not raise this statutory argument before the administrative law judge. The Full Commission therefore declines to consider the respondents’ § 11-9-401 argument, because it is raised for the first time on appeal. See, Stone v. Aztec Paving, Full Workers’ Compensation Commission, March 13, 2000 (E807346); Lawrence v. Sunbeam Outdoor Products, Full Workers’ Compensation Commission, June 3, 1998 (E704127).
Since in the present case, the respondent failed to argue whether the Savings Statutes apply before the Administrative Law Judge or the Commission in prior to 2006, we find the argument is not properly before the Commission and should not be considered.
However, even if we were to find that the issue was properly before the Commission, we would still find that the claimant’s request for additional benefits is not barred pursuant to the provisions of § 11-9-702 and the application of Workers’ Compensation laws as applied by this Commission. It is apparent that the claimant filed a timely claim for additional benefits within one year of the respondent cutting off benefits. The case was then in litigation until the Commission issued its decision on November 18, 1996. At that time, the statute of limitations again began to run. However, the statute of limitations did not begin to run again due to the Savings Statutes. Rather it was due to the provisions of § 11-9-702 and the fact that the claimant’s previous request for additional benefits had not been fully litigated. We note that this finding is in accordance with prior decisions from the Commission. Specifically, we note that inBrake, this Commission stated,
The respondents first assert that the Administrative Law Judge erred in her finding that the statute of limitations is not a bar to the present claim for additional benefits. The respondents acknowledge that the claimant filed a timely prior claim for additional benefits for his hematomas. The respondents acknowledge that the prior claim was not finally decided by the Court of Appeals until June 7, 2000. The respondents acknowledge that the present claim for additional benefits was filed less than one year later on August 31, 2000. The respondents also acknowledge that the filing of a claim for additional benefits tolls the statute of limitations until the claim is decided. See Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 675 S.W.2d 849 (1984); Arkansas Power Light Co. v. Giles, 20 Ark. App. 154, 725 S.W.2d 583 (1987); Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173
(1986). Although the Arkansas Courts have never fully addressed the issue in a published opinion, the Commission has previously found on several occasions that the statute of limitations does not commence to run again until there is a final order ending the litigation or adjudication of the claim for additional benefits, and the claimant then has one year in which to file another claim for additional benefits. See Shelly S. Cooper v. Cleo, Inc., Full Workers’ Compensation Commission, Opinion filed March 29, 2000 (E518275); Michelle T. Underwood v. TEC, Full Workers’ Compensation Commission, Opinion filed April 15, 1992 (D708150); Bernie Barker v. National Transportation, Full Workers’ Compensation Commission, Opinion filed August 19, 1993 (D803687).
For the aforementioned reasons, we find that the claimant’s 1997 request was tantamount to a request for additional benefits. Furthermore, that request was not barred by the statute of limitations provisions of § 11-9-702.
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. 2002).
Since the claimant’s injury occurred prior to July 1, 2001, the claimant’s attorney’s fee is governed by the provisions of Ark. Code Ann. § 11-9-715 as it existed prior to the amendments of Act 1281 of 2001. Compare Ark. Code Ann § 11-9-715 (Repl. 1996) with Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing 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.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION KAREN H. McKINNEY, Commissioner
I must respectfully dissent from the majority opinion. On November 18, 1996, the Full Commission issued a final appealable order denying benefits to the claimant. The claimant did not perfect her appeal of this order. On October 27, 1997, the claimant filed her request for “additional benefits.” In her prehearing questionnaire filings, the claimant specifically framed the issue as a request for a modification of an award pursuant to Ark. Code Ann. Sect. 11-9-713(a)(2), not as a request for additional benefits under A.C.A. § 11-9-702(b). Specifically, the claimant’s August 4, 1999, Prehearing Questionnaire states:
Claimant is requesting a modification of an award pursuant to Ark. Code Ann. Sect. 11-9-713(a)(2) and her condition has deteriorated and she has undergone a lumbar semihemilaminectomy with disc removal on 5/10/97 by Dr. Bert Park. (emphasis added)
Likewise, in her Amended Prehearing Questionnaire filing dated August 4, 1999, the claimant again framed the issue as follows:
Claimant is requesting a modification of an award pursuant to Ark. Code Ann. Sect. 11-9-713(a)(2) and her condition has deteriorated and she has undergone two additional surgeries to date: a lumbar semihemilaminectomy with disc removal on 5/10/97 by Dr. Bert Park, and subsequently, a lumbar laminectomy and diskectomy performed by Anthony D. McBride on 9/3/98. Claimant has been assigned a total impairment of 13% by Dr. Anthony McBride on 7/20/99 which we contend Arlene is entitled to. (emphasis added)
Accordingly, I find that the claimant’s present claim is one for a modification of an award pursuant to A.C.A. § 11-9-713(a)(2). I further find that the claimant did not file her request for a modification of an award within the six months time period permitted in Section 713(a)(b). The Full Commission issued its opinion on November 18, 1996. The claimant did not file her claim until October 27, 1997. Therefore, I find that the claimant’s claim for a modification based upon a change in physical condition is barred by the statute of limitations. In my opinion this claim is clearly distinguishable from Reynolds Metal Co. v.Brumley, 226 Ark. 388, 290 S.W.2d 211 (1956) where the court stated in dicta that if there is a conflict between the statute of limitations on claims for additional benefits and the statute of limitations on claims for modification of an award or order, the longer period for the additional benefits is controlling. InBrumley, although the claimant had received an award of benefits, the carrier waived the requirements of this order by voluntarily furnishing medical services well after the six month period established for claims of modifications of awards. As benefits were paid over and above the award, after the award was final, the claimant in Brumley timely filed his request for additional benefits within the one year permitted for claims of additional benefits. Thus rendering an analysis of the statute of limitations on claims for modifications of awards unnecessary.
In finding that this claim was timely filed, the majority’s opinion states that; “This second filing for `additional benefits’ was also clearly filed within the one year period permitted once the prior claim was decided by the Full Commission order filed on November 18, 1996.” There is no statutory provision cited for this statement as there is no provision within the workers’ compensation act which allows a claimant an additional year within which to file a claim for benefits after the Commission or the Courts have rendered a final order on the claim. The only one year period to which this statement could apply is the one year period granted in A.C.A. § 11-56-126, which states:
(a)(1)If any action is commence within the time respectively prescribed in this act, in §§ 16-116-101—16-116-107, in §§ 16-114-201—16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the judgment is arrested, or after judgment for him or her the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.
(2)(A) However, if after judgment for plaintiff the judgment is reversed on appeal or writ of error and the cause is remanded for another trial, the mandate shall be taken out and filed in the court from which the appeal is taken within one (1) year from rendition of the judgment of reversal.
(B) Otherwise, the cause shall be forever barred.
This Commission has previously found that A.C.A. § 16-56-126
does not apply to workers’ compensation claims. Thomas Boston v.Hickory Hills Property Owners Assoc., Full Commission Opinion filed January 9, 1991 (D804013).
The claimant’s denial of indemnity benefits by the Administrative Law Judge in the opinion filed December 20, 1995, was affirmed by the Full Commission in its November 18, 1996, Opinion and Order. Accordingly, even if the Savings Statute were applicable to workers’ compensation claims, a finding which I specifically do not make, the November 18, 1996, denial of indemnity benefits does not fall within any of the provisions set forth in A.C.A. § 11-56-126 for extending an additional year within which to commence a new action. Finally, I note that the majority has looked beyond the claimant’s prehearing questionnaire filings and concluded that despite the claimant’s actual request for a modification of an award, the claimant was actually filing a claim for additional benefits. While I do not agree with the majority, for arguments sake, even if this were a claim for additional benefits, the evidence still preponderates in favor of finding that even a claim for additional benefits under § 11-9-702(b) was not filed within the allotted one year from date of injury or two years from the date of last payment of benefits which ever is greater.
I acknowledge that the timely filing of a claim for benefits tolled the statute of limitations. However, once that claim was finally disposed of by the Full Commission’s opinion filed November 18, 1996, which was not appealed, the claim was over because this date of November 18, 1996, falls beyond the one year period from the date of injury and the two year period from the date of the last payment of benefits. There is no provision in the law to tack the number of accumulated days from the date of the initial filing through the final disposition of the claim onto the statutory period of filing a claim. Accordingly, I find that even if A.C.A. § 11-9-702(b) were applicable to this claim, I find that the claimant’s claim for additional benefits is barred by the statute of limitations as her claim for “additional benefits” filed on October 27, 1997, was filed more than two years after the date of injury and more than one year after the last payment of benefits which was made in 1994.
Therefore, I respectfully dissent from the majority opinion.
_______________________________ KAREN H. McKINNEY, Commissioner