Evans v. Northwest Tire Service , 23 Ark. App. 11 ( 1987 )

John E. Jennings, Judge.

Arlie Evans sustained a compen-sable shoulder injury in 1976 while working for Northwest Tire Service. He was awarded permanent partial disability and received his last benefit payment on February 14, 1980. Since then the employer has paid bills for doctor visits and prescription drug refills. Evans’s condition deteriorated in 1985, and he was hospitalized. He filed a claim for additional benefits, alleging that he had become permanently and totally disabled on April 23, 1985.

The issue is whether the claim is barred by the statute of limitations. The Commission held that the claim was barred, relying on Mohawk Rubber Co. v. Thompson, 265 Ark. 16, 576 S.W.2d 216 (1979), and distinguishing Alred v. Jackson Atlantic, Inc., 268 Ark. 695, 595 S.W.2d 249 (Ark. App. 1980). We disagree and reverse.

The applicable statute is Ark. Stat. Ann. § 81-1318 (b) (Repl. 1976), which provides:

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 (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 time limitations for this subsection shall not apply to claims for replacement of medicine, crutches, artificial limbs, or other apparatus permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies.

Since 1980, no uninterrupted one year period has passed without Evans receiving some payments, although from 1983 through 1985, Evans was furnished with replacement medicine only.

Our review of Mohawk, Alred, and a third case, Terminal Van & Storage v. Hackler, 270 Ark. 113, 603 S.W.2d 893 (Ark. App. 1980), indicates that the three cases are reconcilable. We have come to the conclusion that the Commission misinterpreted Mohawk and failed to follow our decision in Alred.

In Mohawk, the claimant sustained a work-related injury to his foot. On August 10, 1973, the claimant was released from treatment by his doctor and furnished a pair of orthopedic shoes. On August 28, 1974, the claimant was furnished with a second pair of orthopedic shoes and in May 1975, he brought a claim for additional benefits. The Commission held that the statute of limitations had been tolled by the furnishing of the second pair of orthopedic shoes and that the claim was not barred.

The court reversed, noting that “there was no interruption of the statute between August 10, 1973 and August 28, 1974. Thus, both the two year statute from the date of the injury and the one year statute from the last payment of compensation had run when the claimant was furnished a second pair of shoes on August 28, 1974.”

Noting that the second sentence of § 81-1318(b) was added when the statute was amended in 1968, the court went on to say:

The manifest purpose of the 1968 amendment was to extend the statute with respect to an employee’s right to obtain the replacement of medicine, crutches, artificial limbs, and other apparatus that would be permanently or indefinitely required as a result of the original compensa-ble injury. This case illustrates the beneficent purpose of the amendment, for without it this claimant would not have been able to obtain a second free pair of orthopedic shoes on August 28, 1974, because both the two-year and the one-year statutes had already run. Thus the new sentence is actually an exception to the basic rule of limitations. The exception cannot fairly be broadened to mean, for example, that simply because a crutch furnished by the employer happens to break and needs replacement ten years after the injury, a new period of limitations should begin to run with respect to claims for surgery, permanent partial or total disability, and all the other benefits provided by the act. The scope of a reasonable and logical exception to the rule of limitations should not be extended beyond the defect that it was evidently designed to correct. Even a liberal construction of a statute must still be consistent with its basic intent, (emphasis in original.)

In Alred the claimant suffered a compensable injury in 1970. In 1978, the claimant’s condition deteriorated and she sought additional benefits. The issue in Alred was whether the furnishing of replacement medicine would constitute “payment of compensation” so as to toll the statute of limitations. We followed the rule announced many years ago by the Arkansas Supreme Court that payments for medicine are a part of “compensation” within the meaning of the Workers’ Compensation Act, citing Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W.2d 211 (1956) and Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S.W.2d 524 (1954). We reversed the Commission’s decision that the claim was barred by the statute.

In Terminal Van & Storage v. Hackler, supra, we made the distinction between Mohawk and Alred clear. In Terminal Van, we said:

The statute does not run against, among other things, replacement medicine; therefore, as the Commission found, Mrs. Hackler can still receive replacement for medicine and drugs if she can establish a connection to the original injury. Nevertheless, payment for replacement medicine does not revive a claim for additional benefits once the statute has run against other types of compensation.

We said that the difference between Alred and Mohawk was that in Alred, “the statute of limitations never ran long enough to present a bar." Finally, we said, “[w]hile claims for replacement medicine may toll the running of the statute of limitations, such claims cannot revive once the statute has run against other forms of compensation.”

This is the critical distinction. “Replacement medicine” is certainly “medicine” and therefore, a payment for replacement medicine is “payment of compensation” within the meaning of § 81-1318(b) and the supreme court’s decisions in Reynolds Metal Company and Ragon, supra. Therefore, the furnishing of replacement medicine may toll the running of the statute. On the other hand, if more than one year passes between the furnishing of replacement medicine to the claimant, a claim for additional compensation may well be barred by the statute because such claims are not revived once the statute has run.

In its majority opinion the Commission expressed its concern that, if Evans’s position was adopted, the statute of limitations would never run on someone who refills his prescription once a year for the rest of his life. It is certainly a proper part of the Commission’s business to be concerned about the practical effect of a given construction of the Workers’ Compensation Act, but we answered this argument in Alred:

This holding does not mean that a claimant may toll the statute merely by refilling a prescription. The statute specifically says medication which is “reasonably necessary” for the injury suffered. What is considered “reasonably necessary” will depend on the facts and circumstances of each case.

For the reasons stated the decision of the Commission is reversed, and this case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Corbin, C.J., dissents.