CLAIM NOS. E113239 and E317577
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 22, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by the HONORABLE DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The respondents appeal and the claimant cross-appeals an opinion and order filed by the administrative law judge on April 18, 1996. In that opinion and order, the administrative law judge found that the Statute of Limitations bars the claimant’s claim for additional benefits relating to an admittedly compensable back injury sustained in 1991. In addition, the administrative law judge found that the claimant proved by a preponderance of the evidence that she sustained a compensable back injury in June of 1993.
(1950); Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Shepherd v. EasterlingConstruction Company, 7 Ark. App. 192, 646 S.W.2d 37 (1983). [18] Once the limitations period commences to run, Ark. Code Ann. § 11-9-704 (b) (1987) provides that claims 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 the injury, which ever is greater.” The furnishing of medical treatment constitutes compensation for the purposes of this statute. However, the furnishing of medical treatment constitutes compensation only if the treatment is reasonably necessary for the treatment of the compensable injury. Northwest Tire Service v. Evans, 295 Ark. 246, 748 S.W.2d 134 (1988). Moreover, it is the furnishing of medical treatment, not the actual payment for those services, which constitutes the payment of compensation for the purposes of this statute. Heflin v. Pepsi Cola BottlingCo., 195 Ark. 244, 424 S.W.2d 365 (1969); Cheshire v. FoamMolding, 37 Ark. App. 78, 822 S.W.2d 412 (1992). In this regard, the key is that the employer must furnish the medical treatment in order to toll the limitations period.See, McFall v. U.S. Tobacco Co., 246 Ark. 43, 434 S.W.2d 838 (1969). Consequently, the receipt of medical treatment is not sufficient, standing alone, to prevent the Statute of Limitations from barring a claim. Instead, it must be shown that the employer furnished the medical services. Where a respondent furnishes medical treatment and is aware 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 the claimant’s entitlement to further medical treatment. See, Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253
(1994); Safeway Stores, Inc. v. Lamberson, 5 Ark. App. 191, 634 S.W.2d 396 (1982). However, the respondent ceases to furnish medical treatment when it controverts the claimant’s entitlement to that treatment. [19] In the present claim, the evidence establishes that the claimant did not sustain an incapacity to earn wages following her May 8, 1991, accident entitling her to benefits under Ark. Code Ann. § 11-9-501 (a) until July of 1991. Therefore, unless the claimant received medical care or other compensation after July of 1992 to toll the limitations period for the 1991 injury, her limitation period for filing a claim ran two years from July of 1991, i.e., in July of 1993, several months before she filed her claim on November 8, 1993. [20] With regard to indemnity compensation, the evidence establishes that the claimant received temporary disability compensation associated with her 1991 injury for a period beginning in July of 1991, and continuing until she returned to work in November of 1991. Therefore, the evidence establishes that the claimant did not receive any indemnity compensation for her 1991 injury beyond July of 1992, and the indemnity compensation she received before July of 1992, did not toll the limitations period beyond July of 1993. [21] However, the evidence indicates that the respondents also provided the claimant medical care for her low back condition for a period beginning on May 10, 1991, and continuing through November 20, 1991. Thereafter, the respondents provided additional medical care for the claimant’s low back following the work related incident on December 4, 1992, and the respondents continued to provide the claimant additional medical care for her low back into January of 1993. Therefore, unless the evidence indicates that the medical care provided in December of 1992 and January of 1993 was in no way related to the 1991 injury, then the medical treatment provided in January of 1993 further tolled the limitations period until January of 1994. Consequently, unless the treatment provided in January of 1993 was unrelated to the 1991 injury, then the claimant filed a timely claim for additional benefits for the 1991 injury on November 8, 1993. [22] The respondents contend that the medical care provided to the claimant’ s lower back in December of 1992 and January of 1993 cannot toll the limitations period for the 1991 low back injury because the treatment in December of 1992 and January of 1993 was received after the claimant reinjured her back at work in December of 1992. The respondents argue that both the 1991 injury and the 1992 injury were “temporary aggravations of the claimant’s pre-existing condition”, and that the treatment after the second “temporary aggravation” in 1992 bore no relationship to the first “temporary aggravation” in 1991. [23] 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.Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321
(1983). Consequently, when subsequent complications are the natural and probable result of the original injury, the employer remains liable. On the other hand, if the subsequent complications result from an independent intervening cause, the employer may be relieved of liability for compensation benefits. However, the intervening incident must independently contribute to the claimant’s condition before the employer is relieved of liability.Bearden, supra. [24] The Arkansas Supreme Court discussed this issue as follows in Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W.2d 465 (1976) (quoting 4 Arthur Larson, The Law of Workmen’sCompensation § 95.23 (1990)):
[25] Likewise, the Arkansas Court of Appeals made the following comments in Halstead Industries v. Jones, 270 Ark. 85, 603 S.W.2d 456 (Ark.App. 1980):If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. . . . This group also includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.
[26] In the present claim, we find that the preponderance of the evidence indicates that the claimant sustained a recurrence of her 1991 injury on December 8, 1992, rather than an aggravation as the respondents suggest. In that regard, the evidence indicates that the claimant sustained an admittedly compensable injury to her low back as a result of the work-related incident involving a floor jack on May 8, 1991, and she was not returned to work following that incident until November of 1991. The claimant’s increased back problems after December 4, 1992, also occurred after attempting to maneuver a floor jack. However, whereas the claimant remained symptomatic for a significant number of months following the 1991 injury, the medical evidence indicates that she initially suffered only a relatively mild exacerbation of her back symptoms in December of 1992 as compared to her symptoms following the original 1991 injury. Moreover, the increased low back symptoms that the claimant experienced for a short period after the 1992 incident were of a very similar nature to the problems she experienced for a period of months after the 1991 incident. Nevertheless, the 1992 reinjury prompted the company physician to advise the employer that the claimant was to “never, ever, never again push carts.” Accordingly, we find that the preponderance of the evidence indicates that the claimant’s 1992 back problems were a natural and probable result of the compensable injury sustained in 1991, and we find that the claimant sustained a “recurrence” of her 1991 back injury on December 4, 1992, and not an “aggravation” of her condition as the respondents suggest. Consequently, we find that the medical treatment provided in January of 1993 tolled the limitations period for the 1991 injury until January of 1994, and we find that the claim for additional benefits for the 1991 injury filed in November of 1993 was timely filed. [27] However, even if we were to find that the claimant sustained a “temporary aggravation” instead of a “recurrence” in 1992, which we do not find, we would still find that the medical evidence supports a conclusion that the claimant’s medical treatment following the 1992 incident bore some reasonably necessary causal relationship to her previous 1991 injury. In that regard, Dr. Heim’s testimony indicates that the claimant’s primary problem is degenerative changes in her back, and that the claimant’s back problems are exacerbated by activities which produce wear and tear in her back. As discussed, both the 1991 injury and the 1992 injury involved a specific incident with a floor jack, and each incident caused the claimant’s back to be symptomatic. Although the claimant’s flare up of symptoms following the 1991 incident subsided, and although she may not have sustained any permanent “disability” as a result of the 1991 flare up after a long recovery period, the fact that the 1992 flare up occurred at the same area of the back while performing routine exertion supports a conclusion that the wear and tear on her degenerative changes caused by the 1991 floor jack episode contributed to her overall back condition which became increasingly symptomatic and required medical care after the 1992 floor jack episode. Consequently, we find that the medical treatment provided in January of 1993 was reasonably necessary for, and causally related to, the original injury sustained in 1991, even if the 1992 problems were an “aggravation” instead of a “recurrence,” which we do not find. [28] In short, the respondents have the burden of proving that the claimant failed to timely file her claim for additional benefits related to her compensable 1991 injury. We find that the medical treatment provided in December of 1992 and January of 1993 bore a sufficient relationship to the 1991 injury to toll the limitations period for that injury until after the present claim was filed in November of 1993. Accordingly, for the reasons discussed herein, we find that the respondents failed to prove by a preponderance of the evidence that the Statute of Limitations bars the claimant’s claim for additional benefits for her admittedly compensable 1991 injury. [29] With regard to the claimant’s medical problems beginning in June of 1993, the evidence establishes that, following the December 4, 1992, injury, the claimant continued to work for the respondent. Although the claimant was originally able to function with only minimal back pain after no longer being required to operate a floor jack, her back symptoms nevertheless persisted. The claimant’s unrebutted testimony indicates that the her subsequent disability was not caused by any independent intervening cause. To the contrary, the evidence establishes that her subsequent disability beginning in July of 1993 was a reasonably foreseeable consequence of the compensable injuries in 1991 and in 1992 in light of the change in job duties assigned on June 10, 1993. Moreover, the evidence establishes that the claimant warned the respondent employer that her new job duties were having a persistent effect on her continuing back symptoms, and the claimant testified that the respondents disregarded the claimant’s warning. In addition, the evidence indicates that the claimant continued to work under the conditions established by the respondent employer until her back injury could no longer tolerate her working conditions, and the claimant required an additional period of disability to recuperate from the ongoing symptoms. Therefore, we find that the preponderance of the evidence fails to indicate that any independent intervening cause contributed to the claimant’s back flare up beginning in July of 1993. To the contrary, we find that the preponderance of the evidence indicates that the problems experienced in 1993 are also a natural consequence of the claimant’s 1991 compensable injury. [30] In reaching our decision, we note that the claimant’s lumbar CT scans taken in 1991, 1992, and 1993 indicate that the claimant has not received any additional detectable damage to her disc bulge at L5-S1, or to her degenerative changes at other levels, as a result of her 1992 problems or her 1993 problems. Moreover, the preponderance of the evidence indicates that the claimant’s underlying back abnormality was not worsened by the 1992 incident or the 1993 problems. Therefore, we find that the objective medical findings also support a conclusion that the claimant has not sustained any independent intervening cause since her 1991 injury which has contributed to the causation of her underlying back problems. Consequently for the reasons discussed herein, we find that the preponderance of the evidence indicates that the claimant sustained a recurrence to her 1991 injury in December of 1992 and in June of 1993. [31] In reaching our decision, we note that the respondents assert that any claim related to the claimant’s 1993 back problems is governed by the provisions of Act 796 of 1993. However, we note that the amendments of Act 796 do not apply to a recurrence of an injury sustained before the effective date of the Act. Atkins Nursing Home v. Gray, 54 Ark. App. 125, ___ S.W.2d ___ (1996). [32] Finally, we find that Dr. Heim’s testimony establishes that the claimant remained within her healing period and was incapacitated from earning wages for a period beginning on July 1, 1993, and continuing through August 20, 1993, as a result of the 1993 recurrence to her compensable injury. Dr. Heim’s testimony on March 16, 1994, also establishes that the claimant’s injury may benefit from additional care. The respondents urge that the claimant’s failure to obtain any specialized medical care (at her own expense) between August 12, 1993 and December 7, 1995, is prevailing evidence that the claimant does not need any additional medical care for her compensable injury. However, we note that the evidence indicates that the claimant was simply not financially able to afford specialized medical treatment, and Dr. Heim’s unrebutted testimony indicates that the claimant’s compensable injury may require additional medical care. Therefore, for the reasons discussed herein, we find that the claimant is entitled to additional temporary total disability compensation for the period beginning July 1, 1993, and continuing through August 20, 1993, and we find that the claimant is entitled to any additional medical care which is reasonably necessary for treatment of her compensable injury. [33] In summary, we find that the respondents failed to prove by a preponderance of the evidence that the Statute of Limitations bars the claimant’s claim for additional benefits for her 1991 injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. In addition, we find that the claimant proved by a preponderance of the evidence that she sustained a recurrence of her 1991 injury in 1993, and we therefore find that the provisions of Act 796 do not apply to her claim for benefits related to her 1993 back problems. We find that the claimant is entitled to additional temporary total disability compensation for the period beginning on July 1, 1993, and continuing through August 20, 1993. We also find that the claimant is entitled to additional medical treatment which is reasonably necessary for treatment of her compensable injury. Therefore, we find that the administrative law judge’s decision and award of benefits with regard to the claimant’s 1993 back problems must be affirmed. [34] 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. § 11-9-809When the symptoms of a back injury persist and culminate in a second disability without the intervention of a new injury the second disability is properly classified as a recurrence of the first injury, and the insurance carrier at the time of the original injury remains liable.
(1987). 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) (1987). [35] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman
[36] Commissioner Humphrey concurs. [37] Commissioner Holcomb dissents.[38] DISSENTING OPINION
[39] I respectfully dissent from the majority’s opinion finding that the claimant proved by a preponderance of the evidence that she sustained a recurrence of her 1991 injury in 1993. It is clear from the record that the claimant’s back condition has existed since 1989 when the claimant was injured while moving a couch at home. The symptoms, findings, and diagnostic tests from 1991 forward are identical to those in 1989. There is simply no objective evidence from which to find that the 1991 injury or the 1992 injury or anything that happened at work in 1993 was anything but a temporary aggravation of the claimant’s preexisting condition.