Estrada v. AERT, Inc. , 2014 Ark. App. LEXIS 989 ( 2014 )

Cite as 2014 Ark. App. 652ARKANSAS COURT OF APPEALS
DIVISIONS I & IV
No. CV-14-32
Opinion Delivered November 19, 2014
MARIA ESTRADA APPEAL FROM THE ARKANSAS
APPELLANT WORKERS’ COMPENSATION
COMMISSION
V. [NO. G208219]
AERT, INC., AND NATIONAL
UNION FIRE INSURANCE
APPELLEES REVERSED AND REMANDED
BRANDON J. HARRISON, Judge
This statutory-interpretation case raises an issue in workers’-compensation law:
When did the two-year statute of limitations begin to run on Maria Estrada’s unscheduled,
gradual-onset back injury?
I.
Estrada worked as an embosser at AERT, Inc., from 2005 to 2012. That job
required her to lift and stack large pieces of wood for twelve hours at a stretch.
According to Estrada, the job caused some back pain that she dealt with until it became
too severe and required surgery. Estrada then made a medical-treatment claim and a
temporary total-disability benefits claim.
Cite as 2014 Ark. App. 652During the hearing before the administrative law judge, Estrada testified that her
pain worsened “little by little” the longer she worked at AERT. She said that she
managed her pain with nonprescription medication and that many people at her work had
back pain from the heavy lifting. In 2009, Estrada first reported mild back pain to her
family physician, Dr. Schemel. (She also presented for additional, unrelated complaints at
that same visit.) Dr. Schemel referred Estrada to physical therapy. According to Estrada,
in mid-2011 her pain “changed” and she “just could not stand it anymore,” so she went
to see a chiropractor. The chiropractor sent Estrada to an orthopedist, a referral that
culminated in a December 2011 MRI showing that Estrada had a herniated disc.
In February 2012, Estrada missed work with AERT for the first time because of
back pain. When she returned to work, Estrada told her supervisor, Marcello Llamas, she
was receiving treatment for her back and that her job made the pain worse. The
supervisor assigned Estrada to a lighter-duty position. Estrada worked at AERT at the
lighter-duty position until she had back surgery in August 2012. Estrada hired an attorney
and opened a workers’-compensation claim in September 2012. AERT disputed whether
Estrada sustained a gradual-onset compensable injury to her low back, her entitlement to
benefits, and her attorney’s fee request.
The law judge ruled in AERT’s favor. Estrada appealed to the Arkansas Workers’
Compensation Commission (the Commission), which adopted the law judge’s opinion
and held:
1. The claimant’s claim, filed in 2012, related to a gradual onset injury to
her low back is barred by the statute of limitations. She failed to give
proper notice in 2009 of a work related injury, with no satisfactory
excuse.
Cite as 2014 Ark. App. 6522. Having found that the claim is barred by the statute of limitations, the
issues of compensability and benefits are moot.
Citing Arkansas Code Annotated section 11-9-702(a)(1), the Commission reasoned that
Estrada’s back condition “required medical services” in 2009 when she saw her family
physician Dr. Schemel and he referred her to physical therapy. The Commission stated
that “[t]he appropriate time for the filing of [Estrada’s] claim was in 2009 when the
claimant, by her own testimony, first noticed her low back pain.”
We disagree with the Commission’s statute-of-limitations analysis and its
conclusion that Estrada’s claims are time-barred. Therefore, we reverse the Commission’s
decision and remand for further proceedings.
II.
We review this statutory-interpretation case de novo. See Intents, Inc. v. Sw. Elec.
Power Co., 2011 Ark. 32, 376 S.W.3d 435. Two statutes are particularly relevant to the
limitations-period issue. The primary statute of limitations is Arkansas Code Annotated
section 11-9-702(a)(1) (Repl. 2012), which states:
A claim for compensation for disability on account of an injury, other than
an occupational disease and occupational infection, shall be barred unless
filed with the Workers’ Compensation Commission within two (2) years
from the date of the compensable injury. . . . For purposes of this section,
the date of the compensable injury shall be defined as the date an injury is
caused by an accident as set forth in § 11-9-102(4).
The pertinent part of the cross-referenced statute, section 11-9-102(4), states:
“Compensable injury” means: (i) An accidental injury causing internal or
external physical harm to the body or accidental injury to prosthetic
appliances, including eyeglasses, contact lenses, or hearing aids, arising out of
and in the course of employment and which requires medical services or
Cite as 2014 Ark. App. 652results in disability or death. An injury is “accidental” only if it is caused by a
specific incident and is identifiable by time and place of occurrence[.]
Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012).
Given this case’s facts, the Commission must have applied section 11-9-
102(4)(A)(i), the “accidental injury” provision, to Estrada’s gradual-onset injury to
determine that the limitations period had begun to run against her in 2009 and had barred
her claims before she made them in 2012. But Estrada’s gradual-onset injury was not
caused by an accident, nor was her injury caused by a specific incident that occurred at an
identifiable time and place.
The Commission’s decision to apply section 11-9-102(4)(A)(i) to this gradual-
onset- injury case was a mistake of law. In Pina v. Wal-Mart Stores, Inc., 91 Ark. App. 77,
208 S.W.3d 236 (2005), this court noted Act 796 of 1993 and concluded that section 11-
9-102(4) “did not address the injury date with regard to gradual-onset injuries[.]” Id. at
83, 208 S.W.3d at 239. This court in Pina also noted that “[i]t has long been held that the
statute of limitations does not commence to run until the true extent of the injury
manifests and causes an incapacity to earn wages sufficient to give rise to a claim for
disability benefits.” Id., 208 S.W.3d at 239 (citing Hall’s Cleaners v. Wortham, 311 Ark.
103, 842 S.W.2d 7 (1992), and additional cases). That Pina addressed a scheduled gradual-
onset injury, and this case concerns a nonscheduled gradual-onset injury, is not a material
difference for statute-of-limitations purposes. See also Cottage Café, Inc. v. Collette, 94 Ark.
App. 72, 75–76, 226 S.W.3d 27, 30–31 (2006) (quoting approvingly from Pina, supra).When an appellate court interprets a statute, the interpretation becomes a part of
the statute itself. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). The
Cite as 2014 Ark. App. 652General Assembly is presumed to be familiar with our interpretation of its statutes. Unless
a statute is amended following an appellate court’s interpretation, the court’s decision is
the law. Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723. Here, the governing law when
the Commission decided to apply section 11-9-102(4)(A)(i) to Estrada’s gradual-onset
injury was that the section does not apply to gradual-onset injuries.
This brings us to the Commission’s conclusion that, “[h]aving found that the claim
is barred by the statute of limitations, the issues of compensability and benefits are moot.”
We do not agree that whether Estrada incurred a compensable injury is a moot question;
deciding the “compensable injury” question is an important part of the statute-of-
limitations analysis because it determines when the two-year time period is triggered. In
Hall’s Cleaners v. Wortham, the Arkansas Supreme Court noted that the limitations period
begins to run against a claimant when he or she incurs a “compensable injury.” 311 Ark.
at 106, 842 S.W.2d at 9. A worker has a compensable injury when (1) the injury develops
or becomes apparent and (2) the worker suffers a loss in earnings because of the injury.
Id., 842 S.W.2d at 9; see also Pina, 91 Ark. App. at 83, 208 S.W.3d at 239. The
Commission did not analyze Estrada’s statute-of-limitations issue in this way. And we will
not address the “compensable injury” issue in the first instance.
III.
We reverse the Commission’s decision to time-bar Estrada’s claims under section
11-9-102(4)(A)(i). We also remand this case to the Commission so that it may analyze the
compensable-injury issue in accord with how the Arkansas Supreme Court and this court
have done so when deciding whether the two-year statute of limitations time-bars a
Cite as 2014 Ark. App. 652worker’s gradual-onset-injury claim. We express no opinion on whether Maria Estrada
timely provided the required notice to her employer.
Reversed and remanded.
GRUBER, WHITEAKER, and VAUGHT, JJ., agree.
WYNNE and GLOVER, JJ., dissent.
ROBIN F. WYNNE, Judge, dissenting. I dissent from the majority’s decision to
reverse and remand the decision of the Commission. Because I believe that the
Commission correctly determined that appellant’s claim was barred by the applicable
statute of limitations, I would affirm the Commission’s decision.
In holding that the Commission erred, the majority cites Hall’s Cleaners v.
Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992). While the majority correctly recites the
holding in Hall, it neglects to consider the impact of the General Assembly’s amendment
of Arkansas Code Annotated section 11-9-702 in 1993. Prior to 1993, section 11-9-
702(a)(1) stated that “[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 years from the date of the injury.” The term “date of the
injury” was not defined, leaving it to the Commission and our appellate courts to
determine what the date of the injury would be. Our supreme court determined that an
“injury” was to be construed as a “compensable injury” and that an injury did not become
“compensable” until (1) the injury develops or becomes apparent and (2) the claimant
suffers a loss in earnings on account of the injury. See, e.g., Donaldson v. Calvert-McBride
Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950).
Cite as 2014 Ark. App. 652However, in 1993, the General Assembly amended section 11-9-702 to state that,
for the purposes of that section, the date of compensable injury shall be defined as the date
an injury is caused by an accident as set forth in section 11-9-102(4). Arkansas Code
Annotated section 11-9-102(4)(A)(i) defines a compensable injury as “an accidental injury
causing internal or external physical harm to the body or accidental injury to prosthetic
appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the
course of employment and which requires medical services or results in disability or
death.” It also states that “[a]n injury is ‘accidental’ only if it is caused by a specific
incident and is identifiable by time and place of occurrence.” This is the only part of
section 11-9-102(4) that sets out what an “accident” is.
No longer can the date that the statute begins to run be supplied by case law, as in
Donaldson and Hall’s Cleaners, because it has now been supplied by the legislature in the
statute itself. By its language, the two-year period only begins to run from the date an
injury is caused by an accident, as set forth in section 11-9-102(4). 1 If the injury is not
caused by an accident, section 11-9-702(a)(1) has no application and the two-year
limitations period contained in that statute never begins to run. By stating that section 11-
9-102(4)(A)(i) does not apply to gradual-onset injuries, the majority has, in reality, stated
that section 11-9-702(a)(1) does not apply to gradual-onset injuries, with the result that
such injuries are now not subject to the statute of limitations. The holding in Hall’s
1
Error! Main Document Only.The legislature provided a separate start date for
the statute of limitations for claims involving occupational diseases. Ark. Code Ann. § 11-
9-702(a)(2). No such separate section for gradual-onset injuries exists in the statute.
Cite as 2014 Ark. App. 652Cleaners cannot be used to create separate limitations rules for gradual-onset injuries,
which is what the majority has done.
The result of the majority decision simply cannot be what the legislature intended
when it amended the statute in 1993. There is, however, a way to read section 11-9-
102(4) so that gradual-onset injuries would be subject to the statute of limitations, as the
legislature no doubt did intend. Section 11-9-102(4)(A)(i) defines a “compensable injury”
as an accidental injury arising out of and in the course of employment and which requires
medical services or results in disability or death. In amending section 11-9-702, the
legislature intended for the two-year limitations period to commence running once the
injury in question required medical services or resulted in disability or death. In this case,
appellant initially reported back pain to her doctor in 2009 and received physical therapy
in early 2010. The Commission held that these actions commenced the running of the
statute of limitations. Thus, the Commission correctly determined that the two-year
limitations period lapsed before appellant’s claim was filed in August 2012. Its decision
should be affirmed.
GLOVER, J., joins.
Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellant.
Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, for appellees.