CLAIM NO. D911264
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 2, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by JAMES W. TILLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] This is the second hearing and appeal involving the same parties. The first hearing and appeal resulted in the Commission holding that the claimant did sustain a compensable injury on or before July 20, 1989. In an opinion filed December 31, 1996, the second opinion in this case which is currently being appealed, the Administrative Law Judge held that the current claim was not barred by the Statute of Limitations, that the claimant was entitled to an additional three weeks of temporary total disability benefits, and that the claimant was entitled to an additional three percent permanent partial impairment rating to the body as a whole as a result of the injury sustained while employed by the respondent. Based upon our de novo review of the record in this case, we affirm the decision of the Administrative Law Judge. [3] The record in this case indicated that the claimant sustained a compensable injury on or before July 20, 1989, resulting in injuries to his head and neck. The testimony indicated that the claimant was in the process of hanging trusses on a house when a catwalk fell and hit the claimant on the side of the head and neck. The claimant was eventually treated by Dr. R. Paul Tucker, a neurologist, and was then referred to Dr. James M. Arthur, a neurosurgeon, in November 1989. The claimant was diagnosed as suffering from a “subligamentous[sic] disc herniation at C3-4.” The claimant received conservative treatment in the form of medication and physical therapy under Dr. Arthur’s care. [4] The respondent contends on appeal, as they did below, that the claim in question is barred by the Statute of Limitations. They contend that the last payment of benefits in this case was made on September 24, 1990, and contend that the claim for additional benefits must be filed within one year from that date. It was stipulated below that the claimant filed the current request for additional benefits on October 28, 1991, more than one year from the date the respondent contends should be determinative of the Statute of Limitations issue. Although the claimant sustained a second injury when he fell off a roof on September 25, 1990, he was treated at the emergency room for only a foot injury and no complaints were made concerning his neck or head at that time. Contrary to the respondents’ assertion that this was an independent intervening cause (which will be addressed in more detail below), the fall on September 25, 1990, in no way affected the claimant’s earlier injury and involved a totally separate part of the body. [5] The Statute of Limitations for purposes of filing a workers’ compensation claim for additional benefits is set forth in Ark. Code Ann. § 11-9-702(b) (Repl. 1996). That subsection provides:
[6] The Arkansas Supreme Court stated in the case of Plante v. TysonFoods, Inc., 319 Ark. 126, 130, 890 S.W.2d 253 (1994), “This court has also stated that employers and carriers must either have actual knowledge or constructive knowledge that medical services are being provided before they are deemed to have furnished medical services.” The Court in Plante went on to state that a “respondent’s failure to receive actual notice of the follow-up treatment is not determinative of the limitations issue here where `payment of compensation’ was made by respondent by virtue of the medical services which were actually furnished within the limitations period and for which respondent had reason to knowwould be furnished.”[Emphasis supplied.] Further, respondents do not have to actually pay for the medical treatment which tolls the statute of limitations, as long as respondent had knowledge of the treatment and it was reasonably necessary for treatment of the compensable injury. Conway Printing Co., Inc. v. Higdon, 45 Ark. App. 185, 873 S.W.2d 172 (1994). [7] The evidence in this case clearly shows that the claimant received reasonable and necessary treatment from Dr. James M. Arthur on January 4, 1991, his authorized treating physician. While the respondent and the dissent argue that the claimant failed to prove that the respondent was aware of such treatment and that they did not have notice of the claimant’s continued care, the record shows otherwise. The record contains a letter dated March 22, 1991, from Dr. Arthur which was addressed to the respondents’ representative, Patti Barbosa with Employers Mutual Company, with a copy sent to the respondents’ former counsel, Attorney William Fry. That letter informed the respondent, and their attorney, that Dr. Arthur had seen the claimant in January of 1991, and that he had taken the claimant off work and prescribed physical therapy. This letter constitutes notice to the respondent that the claimant was being furnished medical treatment, and the treatment was received within one year of September 24, 1990, the last payment of compensation. The respondent was aware of this first letter because the respondent sent Dr. Arthur correspondence on April 26, 1991, questioning whether the second injury in September of 1990, was an independent intervening cause which might relieve them of liability. In his letter dated June 12, 1991, to the respondent and their attorney, Dr. Arthur stated:TIME FOR FILING ADDITIONAL COMPENSATION. (1) In cases where any compensation, including disability or medical, 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 the injury, whichever is greater.
[8] Once again, this letter, which was received well within one year from the claimant’s filing for additional benefits, indicates that the respondent had notice that the claimant was furnished medical treatment by Dr. Arthur and that Dr. Arthur was contending they were liable for the treatment. We find that the claimant received medical services on January 4, 1991, well within one year from the date of the last payment of compensation, thereby tolling the statute of limitations. Therefore, the October 28, 1991 claim for additional benefits was timely filed. See Ark. Code Ann. § 11-9-702(b) (Repl. 1996). [9] The treatment in question was received from his authorized treating physician, and this was treatment that Dr. Arthur informed the respondent might be necessary. In his letter dated July 25, 1990, Dr. Arthur stated, “From time to time in the future he may require physical therapy treatments up to two weeks at a time over the next several years. I would say this could occur two to three times.” For the respondent to argue that the claimant could not receive treatment from his authorized treating physician that they knew would be necessary, and then argue that such treatment would not apply to toll the Statute of Limitations lacks merit. As the Arkansas Supreme Court so reasoned in Plante,supra, the respondent had reason to know that these services would be furnished due to Dr. Arthur’s letter in July of 1990. We find that the respondent had actual notice that medical services were provided in January of 1991, and that they also had constructive knowledge that such services were to be provided. Because the services also (1) were provided well within one year from the last payment of compensation, and (2) were reasonably necessary for treatment of claimant’s compensable injury, these medical services tolled the running of the limitations period. See Higdon, supra.See also Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463 (1997). [10] The respondent also contends on appeal that the Administrative Law Judge erred in granting the claimant the additional three weeks of temporary total disability benefits, from January 4, 1991, through January 25, 1991. The Arkansas Court of Appeals and this Commission have consistently held that in order to be entitled to temporary total disability benefits the claimant must prove that he remained within his healing period and was totally incapacitated from earning wages. Palazzolo v. NelmsChevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994); Larry Grahamv. Chamber Door Industries, Inc., Workers’ Compensation Commission, Opinion filed January 9, 1997 (E400258). The “healing period” is defined as that period necessary for the healing of an injury that continues until the employee is as far restored as the permanent character of the injury will permit. Carroll GeneralHosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Arkansas Highway Transp. Dep’t v. McWilliams, 41 Ark. App. 1, 7, 846 S.W.2d 670, 674 (1993). The Commission has the duty of weighing the medical evidence, and the resolution of any conflict is a question of fact for the Commission. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). The determination of when a claimant’s healing period has ended is a factual determination for the Commission to resolve. Carroll General Hosp. v. Green, supra. [11] The record and medical evidence show that the physical therapy was treatment contemplated by Dr. Arthur after the initial injury in 1989, as his letter of July 25, 1990, so indicated. This was treatment to help eliminate the same problems that the claimant had been experiencing since the time of his initial injury; i.e., the problems with his head and neck. When questioned during his deposition as to what caused claimant’s inability to work in January of 1991, Dr. Arthur stated this was the same kind of complaint to the claimant’s neck as the original injury, and in his opinion the claimant had not re-injured his neck in any way, opining that the lost time was a result of the 1989 compensable injury. Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to the additional three weeks of temporary total disability benefits in question, and we affirm the Administrative Law Judge’s decision in this regard. [12] The respondent contends in their final point on appeal that the claimant was not entitled to the additional three percent permanent partial impairment rating awarded to the claimant as a result of the 1989 compensable injury. The respondent contends that the claimant’s injury on September 25, 1990, was an independent intervening cause which increased the claimant’s impairment and relieved them of further liability. The question is whether there is a causal connection between the primary injury and the subsequent disability or need for treatment; and if there is such a connection, there is no independent intervening cause.Broadway v. B.A.S.S, 41 Ark. App. 111, 848 S.W.2d 445 (1993);Guidry v. J.R. Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). As Dr. Arthur’s letter above stated, the injury in September 1990 was a separate injury, which medical reports indicated was to his foot, with no complaints of back or neck pain. While the second injury should be considered when apportioning the degree of liability for the permanent impairment rating, we find that this was not an “independent intervening cause” and did not relieve the respondent of further liability for the back and neck injury of 1989. [13] While we would agree with the Administrative Law Judge’s characterization that Dr. Arthur’s deposition and opinions were vague and inconsistent at times, we also agree with the Administrative Law Judge’s ultimate decision on this point. The medical records show that the claimant continually complained of head and neck problems prior to the alleged “independent intervening cause,” complaining to Dr. Arthur about the problems just two weeks prior to the September 25, 1990 fall from the roof, a separate and distinct injury. Dr. Arthur did opine at one point that at least part of the claimant’s additional six percent permanent partial disability rating was attributable to the September 1990 injury, but he also clearly and consistently stated that part of the six percent additional rating was due to the original compensable injury in 1989. We agree with the Administrative Law Judge, that the additional six percent permanent rating should be apportioned equally between the two separate injuries, and the respondent is liable for fifty percent of the increase impairment rating, which equates to an additional three percent. [14] Accordingly, we affirm the Administrative Law Judge’s decision. 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). [15] For prevailing on this appeal before the Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [16] IT IS SO ORDERED.After reviewing your letter from April 26th, 1991 on Billy Jones, you stated that you determined after reviewing my letter that his present condition is not a direct result of the accident he had while working for Gentuso Construction Company. I don’t know what I said in my letter that gave you the impression that he did not have a condition or that the condition he has was not due to the accident since he had no symptoms of any sort of neck pain or occipital headaches or radicular pain in his arms at any time in the past until he experienced the accident at work. The injury is a C3-4 disc bulging which is likely due to the injury at work and a myofascial or muscle tearing rehealing and scarring type injury from the muscle itself outside the spinal canal. These are two separate injuries. [Emphasis supplied.]
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[17] Commissioner Wilson dissents. [18] DISSENTING OPINION[19] I respectfully dissent from the majority’s opinion finding that claimant’s claim for additional benefits is not barred by the Statute of Limitations; finding that claimant is entitled to an additional three weeks of temporary total disability benefits; and finding that claimant sustained an additional three percent (3%) permanent partial impairment rating to the body as a whole. Based upon my de novo review of the entire record, I find that this claim is barred by the Statute of Limitations. The parties stipulated that the last payment of benefits made by respondent was on September 24, 1990. The parties further stipulated that claimant did not request a hearing for additional benefits untilOctober 28, 1991. [20] Ark. Code Ann. § 11-9-702(b) provides:
[21] Since claimant initially received benefits for temporary total disability, a six percent (6%) physical impairment rating, and medical benefits, it is clear that claimant’s request on October 28, 1991, was a request for additional compensation. Clearly, this statute is controlling. [22] Claimant did not request additional temporary total disability benefits as a continuation of the initial finding of compensability. In fact, the record clearly indicates that claimant’s healing period ended in the summer of 1990 when he was assessed a six percent (6%) physical impairment rating to the body as a whole. Merely because one hearing has been held on a claim, the entire claim is not tolled for Statute of Limitations purposes. Claimant does not contend that he was paid an inappropriate amount as a result of the initial finding of compensability. Rather, claimant contends that he entered a second healing period and is entitled to an additional permanent physical impairment as a result of a subsequent report by Dr. Arthur increasing claimant’s physical impairment rating. This is a claim for additional benefits, not considered at the initial hearing. Thus, the initial filing and hearing do not operate to toll the Statute of Limitations. [23] Moreover, we cannot find that the Statute of Limitations was tolled by claimant seeking medical services after receipt of last payment of benefits. While the record does reflect claimant sought treatment from Dr. Arthur on September 14, 1990 and January4, 1991, the record is void of any evidence to reflect that respondent was aware of this treatment prior to claimant filing his claim for additional benefits. In order for the furnishing of medical services to toll the Statute of Limitations, respondent must have either actual or constructive knowledge that the services were provided. Plante v. Tyson Foods, Inc. 319 Ark. 126, 890 S.W.2d 523 (1994), See also, Pennington v. Jean Cosby Floorand Carpet, 51 Ark. App. 128, 911 S.W.2d 600 (1995). Claimant bears the burden of proving by a preponderance of the evidence that respondent had either actual or constructive knowledge that the medical services were provided prior to the Statute of Limitations running. Claimant presented no such evidence. I am not persuaded to find, as the majority has done, that Dr. Arthur’s correspondence in July of 1990 indicating that claimantmight require additional physical therapy in the future is constructive knowledge that such services have, in fact, been rendered. Furthermore, as explained below, I find that claimant sustained an independent intervening accident on September 24, 1990, therefore, I cannot agree with the majority that the correspondence from Dr. Arthur dated March 22, 1991 to respondent’s carrier amounted to knowledge of treatment rendered for claimant’s compensable injury. [24] Even assuming, arguendo, that this claim is not barred by the Statute of Limitations, I still find that claimant has failed to prove by a preponderance of the evidence entitlement to additional temporary total disability benefits or an increased physical impairment rating. The record clearly shows that on September 25, 1990, claimant was involved in an independent intervening accident wherein claimant fell approximately ten to twelve feet (10 to 12 ft.) off of a roof landing on his feet. Although claimant only complained of foot pain when he presented to the emergency room, I find, based upon Dr. Arthur’s medical records and deposition testimony, that the jolt imposed upon claimant’s body by the fall resulted in the diagnosis of a myofascial neck pain which required claimant to be off work for three weeks in January of 1991 and which resulted in the increased physical impairment rating. In his deposition, Dr. Arthur stated: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 year from the date of the last payment of compensation, or two years from the date of the injury, whichever is greater.
[25] Dr. Arthur further acknowledged:My opinion, and it’s throughout the chart, was that a lot of the myofascial injury was related to this fall that he had from the roof after the catwalk incident, and I gave that opinion, because I felt like at the time that it seemed to make sense to me that he was having increasing problems with his neck. It seemed in his — although I didn’t reflect that in the chart, it seemed that his complaints were more significant after that accident, and so I had attributed the inquiries to complaints to this myofascial thing, and I had kind of hung the myofascial thing on the falling off the roof accident.
[26] Dr. Arthur further acknowledged that although there was no report of neck complaints in the emergency room records, Dr. Arthur arrived at the conclusion that claimant’s new injury resulted in the myofascial injury and increased impairment rating based upon Dr. Arthur’s opinion from talking with the claimant and getting a feel for how the claimant was doing after the second incident. Dr. Arthur’s testimony in his deposition is clearly consistent with all of Dr. Arthur’s written reports which indicate that claimant sustained a six percent (6%) permanent partial impairment rating as a result of the 1989 accident and the myofascial injury which resulted in the increased permanent physical impairment rating was a result of the September, 1990 accident. When Dr. Arthur’s reports and deposition testimony are considered, I find that claimant’s period of disability in January of 1991 and additional physical impairment rating are related to the independent intervening accident. [27] Accordingly, for those reasons set forth herein, I respectfully dissent from the majority opinion. [28] MIKE WILSON, CommissionerHe had some underlying problems with his neck, there is no doubt about that, as a result of the catwalk accident, but the new injury, even though he just hurt his foot, was significant in that he fell like twelve feet. It was a pretty good distance, and I was amazed that he wasn’t hurt more than he was from that, and I had in my mind attributed some of his symptoms after that fall to the accident, that was just my opinion.