JOHNSON v. ELKHART PRODUCTS CORPORATION, 1995 AWCC 78

CLAIM NO. D303314

JOHNEY JOHNSON, EMPLOYEE, CLAIMANT v. ELKHART PRODUCTS CORPORATION, EMPLOYER, RESPONDENT, and COMMERCIAL UNION ASSURANCE CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 28, 1995

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

Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE ELDON COFFMAN, Attorney at Law, Fort Smith, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant and the respondents appeal an opinion and order filed by the administrative law judge on July 7, 1994. In that opinion and order, the administrative law judge found that the statute of limitations does not bar this claim. In addition, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that his right knee problems are causally related to a compensable left knee injury, and the administrative law judge found that no benefits were due or outstanding for the compensable left knee injury.

[3] After conducting a de novo review of the entire record, we find that the respondents failed to prove that the statute of limitations bars this claim. In addition, we find that the claimant failed to prove by a preponderance of the evidence that his right knee problems are causally related to his compensable injury. Finally, while the evidence shows that the claimant continues to need medical treatment for the compensable knee injury, we find that the evidence fails to show that any treatment has been recommended which he has not received.

[4] The claimant sustained a compensable injury to his left knee on February 1, 1983, when a tray of “slugs” fell and struck his knee. The respondents accepted the claim and paid compensation. The claim has been before the Commission on two other occasions as a result of a claim for rehabilitation benefits and because of a claim in which the claimant contended that he was experiencing back problems which were causally related to the compensable left knee injury. Both of these claims were denied. Now, he contends that he is experiencing problems with his right knee which are causally related to the compensable left knee injury, and he contends that he is entitled to additional medical treatment for the compensable left knee injury. In this regard, the claimant contends that Dr. John Park has recommended a total joint replacement. The respondents contend that the claimant’s right knee problems are not causally related to the compensable injury and that he is not in need of additional medical treatment. In addition, the respondents contend that this claim for additional benefits is barred by the statute of limitations.

[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, he is not required to prove that he filed in time; instead, the respondents must prove that he 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, Jun. 11, 1986 (Claim No. D206442); Ellis Williams v. Bituminous,Inc., Full Workers’ Compensation, Sep. 23, 1985 (Claim Nos. B915325 C162509).

[6] The statute of limitations for the filing of claims 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, whichever is greater.” The furnishing of medical treatment constitutes compensation for the purposes of this statute, and 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). The furnishing of replacement medicine is also the payment of compensation which tolls the statute. Northwest Tire Service v. Evans,295 Ark. 246, 748 S.W.2d 134 (1988). Finally, informal 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 ides that compensation is expected. Cookv. Southwestern Bell Telephone 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).

[7] In the present claim, the claimant testified that he received medical treatment once each year, and he testified that has taken medication for the compensable injury which he has refilled periodically between visits to the doctor. The respondents presented no evidence which was inconsistent with the claimant’s testimony. At the hearing, the respondents specifically asserted that the statute bars this claim because the claimant did not receive any medical treatment between January 15, 1992, and January 26, 1993. However, by letters dated May 29, 1992, and July 24, 1992, the claimant’s attorney requested a hearing due to unpaid medical benefits. We find that both of these letters contain the information necessary to constitute claims for compensation. Therefore, in addition to the fact that a preponderance of the evidence indicates that the claimant received replacement medication during the year in question, we find that these claims tolled the statute and prevents the statute from barring a claim for additional benefits arising out of the February 1, 1983, work-related accident.

[8] The respondents also contend that the statute bars an award of compensation for the right knee, even if it does not bar an award for the left knee. However, the claimant does not contend that he sustained a separate injury to the right knee; instead, he contends that his right knee problems are a compensable consequence of the left knee injury which he sustained on February 1, 1983. Therefore, the statute bars an award for the right knee only if it bars an award for injuries causally related to the February 1, 1983, accident. The statute simply does not bar individual conditions stemming from the same compensable work-related accident. Since we find that the statute of limitations has not run on the claim for the February 1, 1983 accident, we also find that the statute does not bar an award of compensation for the right knee.

[9] Nevertheless, we find that the claimant failed to prove by a preponderance of the evidence that his right knee problems are causally related to his compensable injury. 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. However, the claimant still must establish a causal relationship between the compensable injury and the condition for which he seeks compensation. In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that his right knee problems are causally related to his compensable left knee injury. The claimant testified that he experiences “some pain and some locking” in his right knee, and he testified that the knee pops when he stands and that he can make the knee pop. However, he did not offer any testimony suggesting these problems are causally related to his compensable injury. Moreover, the claimant has a long history of problems with both knees, and this history precedes the claimant’s compensable injury. In fact, the claimant had surgery on both knees in the 1960’s and early 1970’s. The medical records indicate that these problems are related to degenerative arthritis, which is causing the claimant problems in multiple areas of his body. Significantly, his treating physician, Dr. John Park, an orthopedic surgeon, was unable to opine with any certainty that the right knee problems were related to the left knee injury. In this regard, Dr. Park made the following comments:

. . . Certainly we cannot rule out the possibility that because of the left leg injury, the patient has had to have increased usage of the right leg and therefore have the possibility of increased symptoms in the right leg on this basis. However, there are certainly patients who have a severe injury on one side and never develop symptoms in the other leg. Therefore, I do not feel we can definitely state that any changes in the right knee are due to the left knee situation. Although, any changes in the right leg may be aggravated by the inability to utilize the left leg fully. . . .

[10] Consequently, any conclusion that the problems with the right knee are causally related to the compensable injury would be based solely on speculation and conjecture.

[11] In short, there is essentially no evidence connecting the right knee problems to the compensable left knee injury. Instead, the evidence indicates that the right knee problems are due to the progression of problems that he has experienced since long before he sustained the work-related injury, and there is no evidence based on more than speculation and conjecture to support a conclusion that the work-related injury aggravated, accelerated, or combined with his preexisting right knee problems. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that his right knee problems are causally related to his compensable injury.

[12] Finally, the claimant contended at the hearing that he is entitled to additional medical treatment “as referenced in Dr. Park’s report of January 13, 1994.” In his testimony and on appeal, the claimant clarifies this contention by asserting that he is seeking Commission authorization for a total joint replacement. However, neither Dr. Park’s January 13, 1994, report nor the remainder of the medical records support a conclusion that Dr. Park has suggested a total joint replacement at this time. In his January 13, 1994, report, Dr. Park made the following comments:

I feel that his left knee is going to warrant total joint replacement, but we certainly want to try to defer this if at all possible.

[13] No other mention of a total joint replacement is found in this report. We find that this comment does not indicate that Dr. Park is recommending a total joint replacement at this time. Instead, Dr. Park obviously is noting that such a replacement probably will be necessary at some point, but he wants to defer this action as long as possible. Moreover, in reports dating back to 1983, Dr. Park has consistently made similar statements indicating a total joint replacement will probably become necessary at some point, and he has also consistently indicated his intent to defer this procedure as long as possible.

[14] In short, Dr. Park has indicated for over 10 years that the claimant will probably need a total joint replacement at some point in the future. However, he has also indicated that he intends to defer this procedure for as long as possible. The comments found in his January 13, 1994, report are consistent with these previous comments, and nothing in the report suggests that Dr. Park has determined that time has come for the replacement. Certainly, the evidence indicates that the claimant continues to require periodic treatment for his left knee problems, and the respondents remain liable for any reasonably necessary medical treatment provided to the left knee which is causally related to the compensable injury. However, nothing in the record indicates that a total joint replacement is reasonably necessary for treatment of the injury at this time, although it may be at some point in the future. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any medical treatment which he is not receiving.

[15] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that this claim is not barred by the statute of limitations. However, we find that the claimant failed to prove by a preponderance of the evidence that his right knee problems are causally related to his compensable injury. In addition, although the preponderance of the evidence establishes that the claimant continues to need medical treatment for his compensable left knee problems, we find that he failed to prove by a preponderance of the evidence that he is in need of any medical treatment at this time which he has not received, including a total joint replacement. The respondents will remain liable for any medical treatment which is reasonably necessary for treatment of the compensable injury in the future. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed.

[16] IT IS SO ORDERED.

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

[17] Commissioner Humphrey dissents.