CLAIM NO. E112173
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 14, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK S. SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by the HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Reversed and remanded.
OPINION AND ORDER
The claimant appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed June 21, 2000. The administrative law judge found that “the claimant’s request for additional benefits is barred by the statute of limitations.” After de novo review of the entire record, the Full Commission reverses the opinion of the administrative law judge and remands for further findings.
I. HISTORY
The parties stipulated that Arlene Dixon, age 44, sustained compensable “lumbar injuries” on February 5, 1991 and July 20, 1991. She eventually came under the care of an orthopaedic surgeon, Dr. Robert D. Foster. The following report resulted from a post-myelogram lumbar CT scan taken in September, 1991:
L3-L4: No disc herniation is seen. No compression or displacement of the thecal sac is seen. Nerve root sleeves appear normal. Neuroforamina are patent.
L4-L5: Minimal posterior bulging is seen but no compression or effacement of the thecal sac is seen. Traversing and exiting nerve roots appear normal.
L5-S1: There is minimal posterior central bulging of the disc with slight anterior compression of the thecal sac. This does not lateralize or extend into the neuroforamen and the nerve roots do not appear compressed or displaced. Neuroforamina are patent.
IMPRESSION:
1. No convincing evidence of a disc herniation is seen.
2. Posterior central bulging at L4-L5 and L5-S1.
The L5-S1 bulge does slightly compress the anterior thecal sac.
Dr. Foster wrote on March 30, 1992:
Mrs. Dixon is a patient I have been following since September of 1991. She has chronic back pain of discogenic origin. In my opinion, she has reached maximum medical improvement. I
would rate her physical impairment as 10% related to her back only. This is permanent.
Another orthopaedic surgeon, Dr. John Wilson, authored a second opinion on April 15, 1992:
X-rays were reviewed. These revealed degenerative disc disease in the lower lumbar area. An MRI
revealed 3 levels of degenerative disc disease with L4-5 showing a very mild bulge, without evidence of thecal indentation.
Ms. Dixon is felt to have degenerative disc disease with a superimposed lumbosacral strain.
She does not appear to be a surgical candidate and, I feel, is at the end of her healing preiod (sic). I feel her permanent impairment is at least 15% to the body as a whole as a result of the severe degenerative disc disease, loss of motion, and muscle spasm; I feel 5% of this impairment is present in the form of pre-
existing degenerative disc disease and 10% as a result of aggravation of this process. I do not feel this impairment could be substantially decreased by further therapy or surgery. I have suggested that she lose weight and that she aerobically get back into better shape[.]
After the claimant presented with right flank pain, Dr. Foster performed a “Retroperitoneal exposure, debridement of psoas abscess and lavage” on March 26, 1993. In January, 1994, Dr. Foster wrote that the claimant “reached the state of medical maximization on July 23, 1993.” The parties stipulated that the respondents paid the 10% physical impairment rating, which rating had been assigned by Dr. Foster in March, 1992.
The respondents ceased paying benefits to the claimant after August 8, 1994. The claimant began treating with a neurological surgeon, Dr. Thomas Briggs, in January, 1995. A prehearing order was filed with the Commission on February 6, 1995. The claimant contended, inter alia, that she was entitled to additional anatomical impairment in the amount of 5%, as assigned by Dr. Wilson. The claimant contended that she was permanently and totally disabled “stemming from physical and psychiatric causes.” The respondents contended that the claimant was not entitled to additional anatomical impairment or permanent partial disability.
Following a hearing before the Commission, an administrative law judge ordered on December 20, 1995 that the claimant had failed to prove that she was permanently and totally disabled. The administrative law judge also found that the claimant failed to prove that she was entitled to any permanent disability benefits exceeding the 10% permanent impairment rating assigned by Dr. Foster. The claimant appealed to the Full Commission.
In an opinion filed November 18, 1996, the Full Commission affirmed the administrative law judge’s finding that the claimant failed to prove that she was permanently and totally disabled, and that the claimant failed to prove that she was entitled to any permanent disability exceeding the 10% permanent impairment rating. The claimant filed a notice of appeal to the Arkansas Court of Appeals, but the record indicates that the claimant never perfected her appeal.
The claimant presented on her own to Dr. Bert E. Park, a neurological surgeon, in April, 1997. Dr. Park performed a “Lumbar semihemilaminectomy with disk removal” at L4-5 on May 10, 1997.
The parties stipulated that the Commission received the claimant’s “request to modify the previous award” on October 27, 1997.
The parties deposed Dr. Park on June 15, 1998. Dr. Park opined that his surgical treatment was causally related to the claimant’s 1991 compensable lifting incident. The respondents’ attorney queried Dr. Park:
Q. In retrospect now, seeing how she was before and knowing what she told you she was before, and comparing that with her condition now and how she improved after surgery, do you have an opinion or can you formulate an opinion as to whether or not that problem at L4-5 was what was precipitating the pain and the difficulty that she’d had for those six years?
A. I feel it was. And I think early on you can have a subligamentous disc that doesn’t come all the way out that can give you shifting symptoms from one leg to the opposite. But the ligament capsule has been disrupted from the initial injury, and eventually the disc will rupture out, which I think did occur in earnest on January — in January. . . .
Q. Okay. Tell me, if you would, please, sir, when you did the surgery?
A. 5/10/97. . . .
Q. And did you do an examination on June 4th?
A. Not so much an examination, just talked to her, because she was having absolutely no radicular leg pain, was up walking around and felt very well, so I didn’t go through a formal examination as such.
Q. And that’s the time that she told you that she could now go apply for the job?
A. Yeah. The last sentence here, “She’s having no radicular leg pain and she is ready to initiate a job search which she has had to put on hold since the early 1990s.”
The claimant presented to another surgeon, Dr. Anthony McBride, in August, 1998. The claimant testified that Dr. McBride was closer to her home. Dr. McBride diagnosed “Recurrent L4-L5 disk herniation” and “Status post previous laminectomy and diskectomy.” On September 4, 1998, Dr. McBride performed a “Left L4-L5 hemilaminotomy with diskectomy” and “Excision of perineural cicatrix around the left L5 nerve root.”
The claimant contended that she was entitled to a modification of her award pursuant to Ark. Code Ann. § 11-9-713(a)(2). The claimant contended that her physical condition had deteriorated. The claimant noted that she had undergone two additional surgeries since her original injury, and the claimant contended that the respondents had not paid medical bills associated with her compensable injuries. The claimant contended that she was entitled to an additional 13% impairment rating as assigned by Dr. Anthony McBride, and that she was in fact permanently and totally disabled.
The respondents contended that the claimant was not permanently and totally disabled as a result of her compensable injuries, and that her permanent disability did not exceed the 10% anatomical impairment rating previously accepted and paid. The respondents contended that any “disability impairment” the claimant experienced was not the result of her compensable injuries. The respondents contended that the claimant’s request was barred by res judicata, waiver, and estoppel. The respondents also contended that the statute of limitations had expired, “since the injuries occurred in 1991, benefits were last paid August 8, 1994, and the request for additional benefits was made on or about August 21, 1997.”
After another hearing before the Commission, the administrative law judge cited Ark. Code Ann. § 11-9-702, noting that a claim for additional benefits is barred unless filed within one year from the date of the last payment of compensation, or two years from the date of the injury, whichever is greater. The administrative law judge determined that the present claim for additional benefits had not been filed until October 27, 1997. The claimant sustained compensable injuries in 1991, “well over two years before the filing of the request for additional benefits,” and “no benefits have been paid since the time of the 1995 hearing which was clearly more than one year before the 1997 filing for additional benefits. Thus, the claim is barred by the statute of limitations.”
With regard to the claimant’s contention that she was entitled to modification of her award pursuant to Ark. Code Ann. § 11-9-713, the administrative law judge found that “the six month period for modification of the decision expired six months after November 18, 1996, the date of the Commission’s decision.”
Finally, the administrative law judge determined that “the claimant’s continuing pathology is related to degenerative conditions rather than to her compensable strains.” The administrative law judge therefore denied and dismissed the claim; claimant appeals to the Full Commission.
II. ADJUDICATION A. Statute of Limitations
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. Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986). See also, Arkansas Power and LightCompany v. Giles, 20 Ark. App. 154, 725 S.W.2d 583 (1987).
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 prehearing order filed with the Commission in February, 1995, the claimant contended that she was entitled to additional anatomical impairment and permanent total disability. 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. Bledsoe, id.
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; however, the parties stipulated that the claimant’s present “request to modify the previous award” was then filed on October 27, 1997. 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.
Therefore, after de novo review, the Full Commission reverses the administrative law judge’s finding that the statute of limitations bars the claimant’s present claim for additional benefits filed on October 27, 1997.
B. Causal Connection
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. McDonald Equipment Co. v.Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). When subsequent complications are the natural and probable result of the original injury, the employer remains liable. The basic test is whether there is a causal connection between the two episodes. BeardenLumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship. Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992). The determination of whether a causal connection exists is a question of fact for the Workers’ Compensation Commission. Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).
In the present matter, the administrative law judge determined that “the preponderance of evidence fails to show that the claimant’s deteriorating physical condition is related to the strains she suffered at work in 1991[.]” The administrative law judge found that the claimant’s physical condition was instead related to her “degenerative pathology,” so that “her alleged additional disability and the additional medical care, including surgeries performed by Dr. Parks and Dr. McBride, have not been sufficiently shown to have been related to her compensable injuries.” The Full Commission reverses the administrative law judge’s finding.
The parties stipulated that the claimant sustained two compensable injuries to her lumbar spine in 1991. A September, 1991 CT scan showed posterior bulging at L4-L5. The claimant’s treating physicians diagnosed “chronic back pain of discogenic origin” and “superimposed lumbosacral strain” in 1992. The claimant continued seeking medical treatment for her symptoms after the respondents controverted payment of further benefits in August, 1994. The claimant ultimately came under the treatment of Dr. Park, a neurological surgeon, who performed surgery for a herniated disc at L4-5 in 1997. Dr. Park expressly and credibly opined that the claimant’s herniated disc was a natural and probable consequence of the claimant’s original compensable injuries, and that some of the claimant’s symptoms had abated following surgery. In addition, Dr. McBride performed surgery in 1998 for “recurrent L4-L5 disk herniation.” Dr. McBride opined in January, 2000 that “the claimant’s current back problems, for which she has required two diskectomies, are a result of her original work injury.”
From the record before us, the Full Commission finds that the claimant’s continuing need for medical treatment was the natural and probable result of her original compensable injuries. We find that the claimant proved entitlement to additional reasonable and necessary medical treatment, and that the respondents are liable for the surgeries performed by Dr. Park and Dr. McBride. We hereby reverse the administrative law judge’s finding that “the claimant’s continuing pathology is related to degenerative conditions rather than to her compensable strains.”
Based on our de novo review of the entire record, the Full Commission reverses the administrative law judge’s finding that the statute of limitations bars the claimant’s request for additional benefits. We find that the medical treatment provided by Dr. Park and Dr. McBride was reasonable, necessary, and related to the claimant’s compensable injuries. The Full Commission remands this case to the administrative law judge. We direct the administrative law judge to enter findings of fact regarding the claimant’s contention that she is entitled to a modification of her award pursuant to Ark. Code Ann. § 11-9-713(a)(2). The Full Commission also directs the administrative law judge to enter findings of fact regarding the claimant’s contention that she is entitled to an additional 13% impairment rating as assigned by Dr. McBride. 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. 1996).
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 (Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
COMMISSIONER TURNER DISSENTS.