CLAIM NOS. E812836 E900900
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 21, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals and the respondents cross-appeal an administrative law judge’s opinion filed July 8, 1999. The administrative law judge found that the claimant proved that he sustained a temporary aggravation to his preexisting back condition while working for the respondents on September 5, 1997, but that the respondents had no notice of the workers’ compensation claim until January 29, 1999; therefore, that the claimant should not be entitled to any workers’ compensation benefits prior to January 29, 1999. The administrative law judge found that the claimant failed to prove entitlement to temporary total disability from the date of his employment termination to a date to be determined, and that the claimant is not entitled to medical treatment for his temporary aggravation. The administrative law judge found that the respondents failed to prove that the claimant’s 1993 “event” would be barred by the statute of limitations. The administrative law judge denied in its entirety the claimant’s request for benefits. After de novo
review of the entire record, the Full Workers’ Compensation Commission affirms the administrative law judge’s finding that the claimant sustained a temporary aggravation to his preexisting back condition on September 5, 1997, and that this condition resolved on or before September, 1998. The Full Commission thus affirms the opinion of the administrative law judge.
I. HISTORY
The claimant, age 56, said he became employed with the respondent-employer in its paint department in May, 1990 and was transferred to a wheel loading position after about one month. The claimant testified that his back “went out” in 1992 and that the respondents sent him to Dr. Abernathy, who the claimant said took him off work for six days. After his back injury, the claimant testified, the respondents assigned him to other duties, such as operating a forklift, in addition to wheel loading.
The record shows that Dr. Abernathy treated the claimant on June 1, 1993 for an “insidious onset through the day Thursday (5 days ago) of low back pain while lifting wheels at Superior Wheel.” (After being shown this medical record at hearing, the claimant testified that the initial back injury was in 1993, rather than 1992.) Dr. Abernathy assessed lumbar strain and treated the claimant with medication and “semi-Fowler’s bed rest with intermittent heat application. Follow-up in 3 days for re-check; sooner for deterioration.” Dr. Abernathy wrote on June 3, 1993 that the claimant “is significantly improved but continues to be significantly impaired.” Dr. Abernathy wrote on June 7, 1993, “I have elected to release him to no lifting, pulling or pushing in excess of 10 lbs. and no bending over the next 1 week.” The claimant testified that the respondents paid for Dr. Abernathy’s treatment. Dr. Abernathy wished for the claimant to follow up after one week for re-check, but the claimant did not do so.
After a month and a half of restricted duty, the claimant’s job was permanently changed to driving a forklift and being a lead person, “where I didn’t hardly do anything,” the claimant testified. The claimant returned to Dr. Abernathy on July 15, 1993, presenting with “acute onset 24 hrs. ago of back pain after twisting with some pellets (sic) at work. His pain is at the same location bil. L-5/S-1 with pain to palpation in the paraspinous musculature with minimal if any associated spasm.” Dr. Abernathy assessed “Lumbar +/- facet strain.” Dr. Abernathy continued treating the claimant conservatively, and asked on July 16 that the claimant not lift, pull, or push in excess of 10 pounds. Dr. Abernathy reported on July 23, 1993 that the claimant was “totally asymptomatic, has a normal examination with exception of a baseline flexion to reach only to within 6 inches of the floor with knees extended and spine flexed.” Dr. Abernathy returned the claimant to work, to follow up according as circumstances may require.
The claimant said his back “went out” again four years later in 1997, testifying, “I don’t know if it was at work or at home, because it started getting worse.” According to the record, the claimant presented to Dr. Gary L. Moffitt on September 8, 1997:
Mr. Spencer is a 54 year old gentleman who is seen today with complaint of pain in his lower back. While at work five years ago he was bending over and looked at something and felt something pop in his back and his “legs went out.” He was treated for this conservatively and eventually did much better. He then on the 5th of September was putting a tank on a forklift and experienced pain in his right leg and going into his hip. He has been having a lot of pain since that time. . . . There is some muscle tightness and guarding in the paraspinous muscles in the lumbar area on the right as well. . . . X-rays are obtained and he is found to have a minimal amount of dextroscliosis and minimal anterior spurring consistent with osteoarthritis of his back. . . . He is to use heat and walk. He is not to lift more than ten pounds. He is to be seen again in one week.
The claimant testified that the respondent-employer paid for the September, 1997 treatment from Dr. Moffitt. Although the claimant was to be seen again in one week, there is no further treatment of record from Dr. Moffitt after September 8, 1997.
The claimant testified that his back again “went out on him” at work in about August, 1998, after bending to tie his shoe. The respondents terminated the claimant’s employment, due to excessive absenteeism, in September, 1998. The claimant said that he had traveled to Dallas over Labor Day but had transportation problems and was unable to return to work on time. The claimant has not worked anywhere since but has drawn unemployment benefits. Following his job termination, the claimant signed a Form AR-C, Claim for Compensation, on October 15, 1998. The claimant listed the Date of Accident as 1992, and described the injury as “lower back/lifting hanging wheels and back went out.”
Meanwhile, the claimant presented on his own to Dr. Cyril A. “Tony” Raben on November 9, 1998, for “complaints beginning in 1994. He was working on the line for Superior Wheel lifting wheel rims when he sustained a lifting/twisting injury.” Dr. Raben assessed “low back pain without clear cut signs of radiculopathy.” Dr. Raben referred the claimant for a lumbar MRI, taken November 11, 1998 with the following impression:
1. Mild to moderate degenerative changes in the intervertebral discs from L3 to S1 with the disc bulging at each level and a small right-sided L5-S1 disc protrusion, but no demonstration of transligamentous HNP with nerve root entrapment.
2. No demonstration of bony canal stenosis or neural exit foraminal stenosis.
3. The conus medullaris is not enlarged. There is normal marrow signal intensity arising from the vertebral bodies.
4. Degenerative facet arthropathy at each level, but no lateral recess stenosis.
Dr. Raben corresponded with the claimant’s attorney on November 20, 1998:
Mr. Spencer needs to identify the pain generators before we can progress through with aggressive conservative intervention versus operative intervention. I had suggested to him that we look into getting a CT/discogram to evaluate what the purported pain generator is.
Secondly, I agree with you that this is a non-specific/non-identifiable cause; that is, that there was no one incident that had caused this injury. I do notice that there is a chronic hypo-intensive area in the lower lumbar region indicating that there was an acute injury here and perhaps an acute-on-chronic situation. Most certainly, the degenerative changes that I am seeing at the bottom three disc spaces could within a reasonable degree of medical certainty have been caused by repetitive heavy lifting, especially highly vibrational situations of running a forklift, sitting for a long period of time and then getting off the forklift and lifting heavy wheels. I would also agree with you that this particular picture could have been caused by simply wear-and-tear arthritis of his spine in general; however, I see almost pristine disc spaces at the levels above his injury here and would suggest that perhaps fifty percent of his necessity for medical treatment is as a direct result of his repetitive lifting and subsequent post-traumatic degenerative condition.
The administrative law judge presided over a pre-hearing conference held January 5, 1999. The pre-hearing order reflects that the claimant contended that he was injured on September 5, 1998, while loading and unloading wheels for the respondent-employer. The respondents contended that the claimant did not sustain an injury arising out of and in the course of his employment, that “Form AR-C reflects an accident date of 1992 and therefore the respondents contend this claim is barred by the applicable statute of limitations.” The respondents alternatively contended that if there was a compensable injury, “the first notice the respondents received of the potential injury was filing of the Form AR-C and therefore the claimant is not entitled to any benefits up until that date.” Counsel for the claimant corresponded with the administrative law judge on February 25, 1999:
1) Dennis got hurt in 1992:
2) He continued to work;
3) Both one and two together have caused him to have an injury under (ii) . . . a non-specific injury.
4) Stated differently, he hasn’t had an occurrence of the 1992 injury, he has a new injury that occurred (sic) during his employment relationship with Superior, culminating in his termination in September of 1998.
After a hearing before the Commission, the administrative law judge determined that there was no evidence from the record that the claimant missed enough time from work to entitle him to draw benefits. The administrative law judge noted that the statute of limitations does not begin to run until the true extent of the injury manifests and causes an incapacity to earn wages which persists long enough to entitle a claimant to benefits pursuant to Ark. Code Ann. § 11-9-501. “Therefore,” the administrative law judge determined, “the statute of limitations would not be a bar to any claim made for the June 1, 1993 injury.”
The administrative law judge found that the claimant proved that he sustained a temporary aggravation to a preexisting back condition on September 5, 1997, for which medical treatment the respondents were responsible. The administrative law judge found that the claimant is not entitled to temporary total disability from the date of his termination on September 5, 1998 until a date to be determined. The claimant testified that he had not looked for work, because he would be “screwed” if he revealed his back condition to a prospective employer. Yet, the administrative law judge found that the respondents should prevail on their lack of notice defense. Despite several opportunities to do so, the claimant never filed a worker’s compensation claim or reported his back problems as being work related. The claimant did not file a claim for benefits for the 1997 incident until January 29, 1999. “I find that this is the first notice that the respondents had of this claimant’s workers’ compensation claim.”
Since the administrative law judge found that the claimant had shown that he sustained a temporary aggravation to his preexisting back condition, but that the claimant failed to give notice to the respondent until January 29, 1999, she determined that “all benefits shall be denied until that date.” The administrative law judge found that the temporary aggravation had resolved itself “long before January 29, 1999.” Therefore, “this claim for benefits should be denied in its entirety.” The claimant appeals to the Full Commission, and the respondents cross-appeal.
II. STATUTE OF LIMITATIONS
The administrative law judge found that the respondents failed to prove that the claimant’s 1993 “event” would be barred by the statute of limitations. On appeal to the Full Commission, the respondents argue that the statute of limitations does bar the claim. The respondents assert that the claimant became “disabled” on when he injured his back in 1993, “so as to trigger the running of the statute.”
Ark. Code Ann. § 11-9-702(a)(1) (1987) provides:
TIME FOR FILING. (1) A claim for compensation for disability on account of injury, other than an occupational disease and occupational infection, shall be barred unless filed with the commission within two (2) years from the date of the injury.
The statute of limitations begins to run at the time of the injury as opposed to the time of the accident. Donaldson v.Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950);Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926
(1983); Calion Lumber Co. v. Goff, 14 Ark. App. 18, 684 S.W.2d 272
(1985). For purposes of commencing the statute of limitations under § 11-9-702(a)(1) (1987), an injury does not become compensable until the injury develops or becomes apparent and the claimant suffers a loss in earnings on account of the injury.
Further, Ark. Code Ann. § 11-9-501(a) (1987) provides:
Compensation to the injured employee shall not be allowed for the first seven (7) days disability resulting from injury, excluding the day of injury. If a disability extends beyond that period, compensation shall commence with the ninth day of disability. If a disability extends for a period of two weeks, compensation shall be allowed beginning the first day of disability, excluding the day of injury.
In the present matter, the record indicates that Dr. Abernathy treated the claimant on June 1, 1993 for an alleged work-related injury occurring five days earlier. Dr. Abernathy prescribed bed rest for the claimant on June 1, 1993 and released the claimant to restricted work duty on June 7, 1993, a total of six days. While the claimant’s testimony further reflects that he missed “a bunch” of additional time from work for his back between July 23, 1993 and September 5, 1997, this testimony is insufficient to conclude exactly when the claimant missed this additional time from work. Consequently, on this record, we find that the respondents have failed to establish by a preponderance of the evidence that the claimant missed sufficient time from work for his 1993 injury to bar a subsequent claim on his 1993 injury. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed.
III. AGGRAVATION
After the respondents terminated the claimant’s employment for excessive absenteeism, the claimant signed a Form AR-C, Claim for Compensation, on October 15, 1998. The claimant listed the date of accident as 1992, and he described the alleged injury as “lower back/lifting hanging wheels at work.” During the January, 1999 pre-hearing conference, the claimant contended he was injured on September 5, 1998 while loading and unloading wheels for the respondents. Following the pre-hearing, the claimant wrote to the administrative law judge and contended that he was hurt in 1992, and continued to work, which caused him to sustain a “non-specific injury.” The claimant appeals the administrative law judge’s denial of his claim but does not brief the Full Commission.
An aggravation is a new injury resulting from an independent incident. Pinkston v. General Tire and Rubber Co., 30 Ark. App. 46, 782 S.W.2d 375 (1990). The independent incident must be shown to be work-related to establish compensability. An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997). For an accidental injury to be compensable, the claimant must show that he sustained an accidental injury; that it caused internal or external physical injury to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16).
In the present matter, the record indicates that the claimant was treated for an “insidious onset” injury in June, 1993, for which he missed six days of work. The claimant was assessed with a lumbar strain in July, 1993, for which he was found to be “totally asymptomatic” by July 23, 1993. There is no further medical treatment of record until 1997. Dr. Moffitt reported that the claimant experienced pain in his right leg and hip on September 5, 1997, after putting a tank on a forklift. Dr. Moffitt found muscle tightness and guarding in the paraspinous muscles in the lumbar area on the right. The Commission has previously determined that muscle guarding is an objective medical finding. Murry v. Riceland Foods, Full Workers’ Compensation Commission, January 20, 1999 (E516632). X-rays showed dextroscliosis and anterior spurring consistent with osteoarthritis of the back.
The administrative law judge found that the claimant proved that he sustained a temporary aggravation to his pre-existing back condition, which aggravation occurred on or about September 5, 1997. The administrative law judge found that this temporary aggravation “had resolved itself long before January 29, 1999,” the date the claimant gave notice to the respondents. The Full Commission affirms these findings. Dr. Moffitt treated the claimant’s temporary aggravation on September 8, 1997, at the respondents’ expense, but the claimant did not present to any physician for further medical treatment until after his employment termination in September, 1998. From this record, we find that the temporary aggravation of September, 1997 resolved at some point prior to the claimant’s termination in 1998.
IV. TEMPORARY DISABILITY
An injured employee is entitled to temporary total disability compensation when he is within his healing period and totally incapacitated to earn wages. Arkansas State HighwayTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The present claimant temporarily aggravated a pre-existing degenerative condition on or about September 5, 1997. The claimant missed no work and was never totally incapacitated to earn wages. The claimant’s temporary aggravation resolved prior to his termination in September, 1998, so that the claimant no longer remained within his healing period for the temporary aggravation. Temporary disability cannot be awarded after the employee’s healing period has ended. Trader v. Single SourceTransportation, Full Workers’ Compensation Commission, Feb. 12, 1999 (E507484). We affirm the administrative law judge’s finding that the claimant is not entitled to temporary total disability compensation.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the alleged injury sustained by the claimant in 1993 is not barred by the applicable statute of limitations. We find that the claimant sustained a temporary aggravation to his preexisting back condition on September 5, 1997, which resolved prior to his employment termination in September, 1998. We find that the claimant is not entitled to temporary total disability compensation. The Full Commission thus affirms the opinion of the administrative law judge. Since we affirm the administrative law judge’s finding that the claimant is not entitled to workers’ compensation benefits prior to January 29, 1999, the issue of whether the respondents had notice of the claim for workers’ compensation is rendered moot. This claim is denied and dismissed.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
Commissioner Humphrey dissents.