WILLIS v. CITY OF FORT SMITH, 1994 AWCC 165

CLAIM NOS. E210323 and E210324

HAROLD RAY WILLIS, EMPLOYEE, CLAIMANT v. CITY OF FORT SMITH, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 22, 1994

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

Claimant represented by the HONORABLE PHIL KINSEY, Attorney at Law, Fort Smith, Arkansas.

Respondent represented by the HONORABLE ELDON COFFMAN, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

[1] OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on August 31, 1994. In that opinion and order, the administrative law judge found that these claims are not barred by the statute of limitations. In addition, the administrative law judge found that the claimant is entitled to temporary total-disability compensation. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed as modified.

[3] The claimant was employed by the respondent as a laborer. On May 27, 1987, he sustained an admittedly compensable injury to his low back while attempting to clear an obstruction from a well. The respondent provided medical treatment for this injury, and the claimant missed two days from work as a result of the injury. On March 14, 1989, the claimant again sustained another admittedly compensable injury to his low back while lifting a jack hammer. The claimant again received medical treatment for the injury, and he missed five days from work. The claimant received full pay from the respondent for each of the days he missed as a result of these injuries.

[4] Although the claimant worked at a restricted duty position for a period of time after the 1989 injury, he ultimately returned to his regular job, which involved relatively heavy manual labor. However, he continued to experience problems with his low back. According to his testimony, he experienced constant back pain, and this pain progressively worsened. Eventually, the pain radiated into his hip and down his right leg. Due to these continued problems, the claimant sought additional medical care, and he ultimately came under the care of Dr. Michael Standefer, a neurosurgeon. Diagnostic studies, including x-rays, a CT scan, a MRI, and a myelogram suggested “a very minimal spondylolisthesis at L4-5” and “[p]rominent osteophyte formation in concert with degenerative disc disease.” In addition, a disc protrusion at L4 was also noted. Dr. Standefer treated the claimant conservatively and with lumbar epidural steroid injections. However, Dr. Standefer’s July 23, 1992, office note indicates that the claimant had not experienced any improvement in his pain and that appropriate surgical treatment would be scheduled. In this regard, the claimant testified that surgery was performed, and he testified that he thought it was performed in August of 1993. The claimant’s testimony also indicates that there were complications with the initial surgery and that he came under the care of Dr. Buie as a result of these complications. However, there are no medical records subsequent to Dr. Standefer’s July 23, 1992, office note.

[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 respondent 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 threshold question whenever the statute of limitations is at issue involves the determination of when, and if, the limitations period commenced to run. Our Courts have held on numerous occasions that the statute of limitations for workers’ compensation claims does not commence to run until the injury causes an incapacity to earn the wages which the employee was receiving at the time of the accident and until the incapacity continues long enough to entitle him to benefits under Ark. Code Ann. § 11-9-501
(a) (1987). See, e.g., Hall’s Cleaners v. Wortham,311 Ark. 103, 842 S.W.2d 7 (1992); Cornish Welding Shop v.Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); Donaldson,supra; Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Shepherd v. EasterlingConstruction Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983). In this regard, the Arkansas Supreme Court has characterized Arkansas as a “compensable injury” state because the statute of limitations does not necessarily begin running on the date of the accident. Wortham, supra. Instead, the limitations period does not begin running until the injury becomes compensable. Id. In Wortham, the Court explained this as follows:

In Donaldson, this court held that, for purposes of commencing the statute of limitations under § 11-9-702 (a)(1), the word “injury” is to be construed as “compensable injury,” and that an injury does not become “compensable” until (1) the injury develops or becomes apparent and (2) claimant suffers a loss in earnings on account of the injury. Donaldson, 217 Ark. at 629-631, 232 S.W.2d at 654. Thus, the statute of limitations does not begin to run until both elements of the rule are met. Therefore, Arkansas is technically a “compensable injury” state. . . .

[7] B. R. Hollingshead v. Colson Caster Corp., D703346.

[8] Under Ark. Code Ann. § 11-9-501 (a) (1987), an injured employee is not entitled to compensation until the disability extends at least nine days beyond the day of injury. In the present claim, Ms. Wanda McBride, human resources coordinator for the respondent, testified that the claimant did not miss but eight days as a result of his back injuries prior to June 8, 1992, when he last worked. Therefore, the statute of limitations did not commence running until June 8, 1992. Under Ark. Code Ann. § 11-9-702
(1987), a claim for compensation is barred unless filed with the Commission within two years from the date that the injury became compensable. In the present claim, the parties have stipulated that the claimant filed a claim for compensation with the Commission on July 6, 1992. Since this claim was filed within two years from the time that the claimant became entitled to indemnity compensation on June 8, 1992, we would find that it is not barred by the statute of limitations.

[9] In reaching this decision, we note the fact that medical benefits were previously paid is not sufficient, in itself, to commence the running of the statute of limitations. Based on the statutory definitions of “disability” and “injury,” our Courts have expressly found that the payment of medical expenses alone does not constitute a payment of compensation for disability on account of injury. Donaldson v. Calvert-McBride PrintingCo., 217 Ark. 625, 232 S.W.2d 651 (1950); Shepherd supra.
Consequently, our Courts have found that the payment of medical expenses alone does not commence the running of the limitations period; they have found that Ark. Code Ann. §11-9-702 (b) does not have any applicability where only medical compensation has been paid. Donaldson, supra;Shepherd, supra.

[10] However, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary total disability compensation beyond July 23, 1992.

[11] This Commission has a statutory duty to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704
(c)(2) (1987); see, Gencorp Polymer Products v. Landers,36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704
(c)(4) (1987); Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). In this regard, the claimant has the burden of establishing his entitlement to the compensation sought by a preponderance of the evidence. Bates v. FrostLogging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992); Lybrandv. Arkansas Oak Flooring Company, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra.

[12] Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highwayand Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).

[13] In the present claim, we find that a preponderance of the evidence establishes that the claimant became totally incapacitated from earning on June 8, 1992, when he last worked for the respondent. In this regard, the testimony of both the claimant and his wife establishes that the claimant was experiencing constant, incapacitating pain at that time. We also find that the preponderance of the evidence establishes that the claimant remained totally incapacitated from earning and within his healing period until at least the time of Dr. Standefer’s July 23, 1992, office note. However, the claimant has not presented any medical evidence whatsoever subsequent to Dr. Standefer’s July 23, 1992, note. Moreover, while the claimant testified that he did have surgery and that he experienced complications from this surgery, there is no evidence pertaining to the nature of the surgery, the length of his hospitalization, or the nature of the complications he experienced. There simply is no evidence pertaining to the claimant’s condition subsequent to July 23, 1992, from which we could base a determination that the claimant remained in his healing period after that date. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that he remained in his healing period beyond that date. Therefore, we find that the administrative law judge’s decision in this regard must be modified.

[14] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the statute of limitations does not bar this claim. However, we find that the preponderance of the evidence establishes that the claimant is entitled to temporary disability compensation from June 8, 1992, through July 23, 1992. Therefore, we find that the administrative law judge’s decision must be affirmed as modified.

[15] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman

[16] Commissioner Humphrey concurs.

[17] Commissioner Tatum concurs and dissents.

[18] DISSENTING AND CONCURRING OPINION
[19] I respectfully dissent from the majority’s determination that claimant’s claims are not barred by the statute of limitations. However, I concur with the decision that claimant is entitled to temporary total disability benefits from June 8, 1992 through July 23, 1992. Therefore, I dissent in part and concur in part with the majority’s decision.

[20] ALLYN C. TATUM, Commissioner