CLAIM NO. D916900
DIANE JACK, EMPLOYEE, CLAIMANT v. AROUND THE WORLD TRAVEL, EMPLOYER, RESPONDENT and ST. PAUL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 15, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JASON WATSON, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE ANGELA DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on October 17, 1994. In that opinion and order, the administrative law judge found that this claim for additional benefits is not barred by the statute of limitations. In addition, the administrative law judge found that additional medical treatment recommended by Dr. Arnold is reasonably necessary for treatment of her compensable injury. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed.
[3] The claimant sustained an injury to her left knee when she slipped and fell while working for the respondent employer on September 1, 1989. On October 5, 1989, Dr. Jim Arnold performed surgery on the knee, and, in December of 1989, he released her with a 10% permanent impairment rating. However, the claimant continued to experience problems with her knee, and she returned to Dr. Arnold. As a result of these problems, Dr. Arnold performed a second knee surgery in November of 1990. After seeing the claimant again on March 14, 1991, Dr. Arnold increased her impairment rating to 15%. She returned to Dr. Arnold again on February 4, 1992, complaining of pain and swelling of the left knee. In a narrative report dated February 5, 1992, Dr. Arnold informed the respondent carrier that he would continue to see the claimant on an annual basis. However, the claimant subsequently returned to Dr. Arnold on January 19, 1993, and the respondents advised the claimant that it would no longer pay benefits for the injury to her knee because the statute of limitations had run.
[4] 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 respondents must prove that she did not file in time. See, Margie Grant v. PennAthletic, Full Worker’s Compensation Commission, May 27, 1992 (Claim No.
D411709); George Hastings v. Marianna MotorCompany, Full Workers’ Compensation Commission, June 11, 1986 (Claim No.
D206442); Ellis Williams v. Bituminous,Inc., Full Workers’ Compensation, Sept. 23, 1985 (Claim Nos.
B915325 C162509).
[5] A claim is for additional compensation if it is filed after the claimant has received compensation for disability on account of injury and is requesting compensation in addition to, or “over and above” what he has already received. Ark. Code Ann. §
11-9-702 (b); Arkansas PowerLight Co. v. Giles,
20 Ark. App. 154,
725 S.W.2d 583 (1987);see also, Donaldson v. Calvert-McBride Printing Co.,
217 Ark. 625,
232 S.W.2d 651 (1950); Shepherd v. EasterlingConstruction Co.,
7 Ark. App. 192,
646 S.W.2d 37 (1983). The statute of limitations for a claim for additional compensation is set forth in Ark. Code Ann. §
11-9-704 (b) (1987). This subsection 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, 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 Bottling Co.,
195 Ark. 244,
424 S.W.2d 365 (1969); Cheshire v. Foam Molding,
37 Ark. App. 78,
822 S.W.2d 412 (1992). Thus, the key is that the employer must furnish the medical treatment in order to toll the limitations period. See, McFall v. U.S. TobaccoCo.,
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 has either actual or constructive knowledge that the claimant is receiving medical treatment or 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. Plante v. Tyson Foods Inc.,
319 Ark. 126,
890 S.W.2d 253 (1995); see also, Safeway Stores, Inc.v. Lamberson,
5 Ark. App. 191,
634 S.W.2d 396 (1982).
[6] In the present claim, we find that the respondents failed to prove by a preponderance of the evidence that the statute of limitations bars this claim. As discussed, the respondents furnished medical treatment to the claimant through February 4, 1992, and they were informed on February 5, 1992, that Dr. Arnold would continue to see the claimant at least annually. Therefore, they were on notice by that date that the claimant would continue to require medical treatment. However, the respondents did not inform the claimant that they would no longer furnish medical treatment until after the claimant’s January 19, 1993, visit to Dr. Arnold. Then, on February 24, 1993, the Commission received a letter from the claimant’s attorney requesting a hearing due to the respondents’ denial of responsibility for further treatment to the claimant’s knee. Correspondence with the Commission may constitute a claim for additional benefits if the correspondence identifies the claimant, indicates that a compensable injury has occurred, and conveys the idea that compensation is expected. Cook v. Southwestern BellTelephone Co.,
21 Ark. App. 29,
727 S.W.2d 862 (1987);Garrett v. Sears, Roebuck Company,
43 Ark. App. 37,
858 S.W.2d 146 (1993). In the present claim, we find that the February 24, 1993, correspondence from the claimant’s attorney satisfies all of the necessary requirements to constitute a claim.
[7] Consequently, we find that the respondents continued to furnish medical treatment to the claimant until they informed her that they would not continue to do so after she saw Dr. Arnold on January 19, 1993. Therefore, since the claim from her attorney was received within one year of that date, we find that the respondents failed to prove by a preponderance of the evidence that the statute of limitations bars this claim.
[8] In reaching this conclusion, we note that the claimant also contended that she sustained a back injury as a result of the accident that occurred on September 1, 1989, and a hearing was held before an administrative law judge on April 6, 1992, to consider her entitlement to benefits for her alleged back injury. In an opinion and order filed April 22, 1992, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she sustained an injury to her low back or right buttock as a result of the September 1, 1989, accident, and the administrative law judge’s decision was affirmed and adopted by the Full Commission in a decision filed on November 24, 1992. The Court of Appeals subsequently affirmed the Full Commission’s decision in an opinion delivered January 12, 1994. The Court’s decision was not designated for publication. However, in our decision in this claim, it is not necessary for us to consider whether the claim which resulted in this hearing and subsequent litigation prevents the statute of limitations from barring the claim currently under consideration.
[9] Finally, we find that the claimant has proven by a preponderance of the evidence that the additional surgery recommended by Dr. Arnold is reasonably necessary and causally related to the September 1, 1989, compensable injury. In this regard, employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. §
11-9-508
(a) (1987). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No.
D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba,Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No.
D511255).
[10] In the present claim, Dr. Arnold made the following comments in a report dated January 19, 1993:
Diane Jack was seen back in the office on 1/19/93 for evaluation of her left knee. She is doing a good job in rehabilitating her muscle but her patella continues to subluixate. It simply rolls out and tilts without total dislocation. She is also quite tender over the old screw site on her tibial tubercle. X-rays show she has fairly good alignment but, with a shallow groove, I think she is going to have subluxation and perhaps will require knee arthroplasty in the future if she does not tend to this subluxation. We talked about this and will most likely schedule her for a modified Campbell procedure and removal of the screw from the tibial tubercle. I will keep you informed of her progress.
[11] The claimant has also been evaluated by Dr. J. Michael Gruenwald, an orthopedic surgeon, and Dr. Gruenwald diagnosed a “failed left patella dislocation.” Dr. Gruenwald has also recommended surgical intervention, although he suggests a different procedure from Dr. Arnold.
[12] Consequently, we find that a preponderance of the evidence establishes that the claimant continues to experience problems with her left knee which require additional surgery. In addition, we find that the opinion of Dr. Arnold, as her primary treating physician for a substantial period of time, regarding the type of procedure indicated is entitled to more weight than that of Dr. Gruenwald. In addition, we find that a preponderance of the evidence establishes that this need for additional medical treatment is causally related to the compensable injury. In this regard, it is not necessary for the compensable injury to be the sole cause of the need for additional medical treatment. Instead, it is sufficient if the employment is a “substantially contributory” cause of the disability. See,American Red Cross v. Wilson,
257 Ark. 647,
519 S.W.2d 60
(1975); Bates v. Frost Logging Co.,
38 Ark. App. 36,
827 S.W.2d 664 (1992); Lockeby v. Massey Pulpwood,
35 Ark. App. 108,
812 S.W.2d 700 (1992). In the present claim, while the claimant has worked for other employers since the compensable injury, the claimant’s testimony and the medical evidence establish that she has experienced problems with the knee since the occurrence of the compensable accident, and the evidence clearly establishes that the compensable injury is at least the substantially contributory cause, if not the primary cause, of the claimant’s need for continued medical treatment.
[13] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the respondents failed to prove by a preponderance of the evidence that this claim is barred by the statute of limitations. In addition, we find that the claimant proved by a preponderance of the evidence that the additional medical treatment recommended by Dr. Arnold is reasonably necessary for treatment of the compensable injury. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed. The respondents are directed to comply with the order found in the administrative law judge’s opinion and order.
[14] 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
(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).
[15] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[16] Commissioner Tatum dissents.
