Nucor Yamato Steel Co. v. Kennedy , 2017 Ark. App. LEXIS 138 ( 2017 )

Cite as 2017 Ark. App. 126ARKANSAS COURT OF APPEALS
DIVISION III
CV-16-743
No.
Opinion Delivered: March 1, 2017
NUCOR YAMATO STEEL
COMPANY AND SEDGWICK APPEAL FROM THE ARKANSAS
CLAIMS MANAGEMENT SERVICE WORKERS’ COMPENSATION
APPELLANTS COMMISSION
[NO. F910330]
V.
LAWRENCE L. KENNEDY
APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Nucor Yamato Steel Company (Nucor) appeals from an order of the Workers’
Compensation Commission that awarded additional medical treatment to appellee
Lawrence Kennedy for treatment of his compensable left carpal tunnel syndrome, to include
carpal tunnel release surgery. On appeal, Nucor argues that Mr. Kennedy’s claim for
additional medical benefits was barred by the statute of limitations. Nucor argues in the
alternative that additional medical treatment for Mr. Kennedy’s left carpal tunnel syndrome
was not reasonable and necessary. We affirm.
In appeals involving claims for workers’ compensation, the appellate court views the
evidence in the light most favorable to the Commission’s decision and affirms the decision
if it is supported by substantial evidence. Williams v. Ark. Dep’t of Cmty. Corr., 2016 Ark.
App. 427, 502 S.W.3d 530. Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a conclusion. Id. The Commission has the authority to accept
Cite as 2017 Ark. App. 126or reject medical opinions, and its resolution of the medical evidence has the force and effect
of a jury verdict. Id. Finally, this court will reverse the Commission’s decision only if it is
convinced that fair-minded persons with the same facts before them could not have reached
the conclusions arrived at by the Commission. Id.Mr. Kennedy began working for Nucor in 1992 and was assigned to various
positions. He eventually became a “coil crimper,” which is a hand-intensive job. The
parties stipulated that Mr. Kennedy sustained compensable bilateral carpal tunnel syndrome
on August 8, 2009. Mr. Kennedy came under the care of Dr. William Bourland, who on
August 19, 2009, reported that right-wrist release surgery would be performed first,
followed by left-wrist release surgery after Mr. Kennedy had recovered from the first
surgery. Dr. Bourland performed right-wrist release surgery on November 17, 2009. After
that, Mr. Kennedy continued to be treated for both right- and left-wrist carpal tunnel, but
release surgery on his left wrist was not performed.
The parties had a previous dispute in this case over Mr. Kennedy’s entitlement to
additional medical treatment. After a hearing in that proceeding, the administrative law
judge issued an opinion on March 13, 2013, finding that Mr. Kennedy was entitled to
additional medical treatment for his bilateral carpal tunnel syndrome. Nucor did not appeal
from that decision.
Subsequent to the March 2013 hearing where the additional medical treatment was
ordered, on August 5, 2013, Dr. Richard Wirges evaluated Mr. Kennedy and gave the
impression of mild right carpal tunnel syndrome and mild to moderate left carpal tunnel
syndrome. Mr. Kennedy continued to experience problems with his right hand, and Dr.
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Cite as 2017 Ark. App. 126Wirges performed a repeat right carpal tunnel release surgery on October 16, 2013. After
a follow-up visit on October 29, 2013, Dr. Wirges reported that once Mr. Kennedy’s right
hand was healed, he would reevaluate the situation and decide whether the left hand would
benefit from surgery.
In a report dated November 26, 2013, Dr. Wirges noted that Mr. Kennedy’s left
carpal tunnel had so far responded to conservative treatment. Dr. Wirges further indicated
that Mr. Kennedy wanted to “get through his right hand first to make sure it does well”
before discussing further treatment to the left hand. On June 10, 2014, Dr. Michael Chesser
evaluated Mr. Kennedy and noted continued mild to moderate left carpal tunnel syndrome.
On October 31, 2014, Dr. Wirges performed an injection to Mr. Kennedy’s left carpal
tunnel. On December 9, 2014, Dr. Wirges reported that the left-hand injection had
provided some relief to Mr. Kennedy, but that his symptoms were beginning to return.
Dr. Wirges gave the opinion that Mr. Kennedy would benefit from a left carpal tunnel
release. The last report authored by Dr. Wirges came on May 11, 2015, wherein Dr. Wirges
gave the following history:
This is a 54-year-old gentleman well known to us is a problem is the right upper
extremity was started after carpal tunnel release [sic]. At that time he was also
diagnosed with left carpal tunnel syndrome, [he decided] not to undergo/proceed
with a left carpal tunnel release because his right hand was not doing well. Ever since
that we’ve been dealing with the right side to try to get [it] better, but the left side
has had symptoms the whole time. He is now at the point [where] the right side is
well enough to undergo the left carpal tunnel release. He did have a positive
improvement with the injection to the left side so we scheduled for a left carpal
tunnel release back in December. However, this was denied. He is now back today
with the same symptoms and is still ready for left carpal tunnel release. He is still
willing and able to go through a left carpal tunnel release surgery. He has no change
in exam from back in December.
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Cite as 2017 Ark. App. 126On June 9, 2015, Mr. Kennedy filed a written claim asking for surgery and additional
pain medication for treatment of his left carpal tunnel syndrome. Nucor contested the claim
for additional benefits, and a hearing was held on October 2, 2015. The Commission
subsequently ruled that Mr. Kennedy proved entitlement to additional treatment for his left
carpal tunnel syndrome, to include release surgery, and that Mr. Kennedy’s claim for
additional treatment was not barred by the statute of limitations.
Nucor’s first argument on appeal is that the Commission erred in finding that the
applicable statute of limitations did not bar Mr. Kennedy’s claim for additional benefits.
Arkansas Code Annotated section 11-9-702(b)(1) (Repl. 2012) provides:
(b) TIME FOR FILING ADDITIONAL COMPENSATION.
(1) In cases in which 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.
Nucor contends that Mr. Kennedy’s claim for additional benefits was barred by the one-
year limitations period set forth above.
We hold that Mr. Kennedy’s claim for additional benefits for medical treatment of
his left carpal tunnel syndrome was not barred by the statute of limitations. The one-year
limitations period begins to run from the last payment of compensation, which the supreme
court has held means from the date of the last furnishing of medical services. Plante v. Tyson
Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). The take-away from Plante is that
although the statute contains no express tolling provision for an additional medical-benefits
claim in particular, our supreme court has interpreted the statute to mean that the one-year
limitations period may not begin to run until the last payment of compensation, which
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Cite as 2017 Ark. App. 126means from the date medical services were last provided. Nabholz Constr. Corp. v. White,
2015 Ark. App. 102.
In this case it was stipulated that Mr. Kennedy sustained compensable bilateral carpal
tunnel syndrome on August 8, 2009. Since that time, Nucor provided the appellant with
ongoing medical treatment that included the services of several specialists, numerous
diagnostic studies, and a myriad of other medical-treatment modalities to include
medications, therapies, and surgeries. With respect to his left carpal tunnel syndrome, the
record reflects that Mr. Kennedy was provided medical services through at least October
31, 2014, when he was administered injections by Dr. Wirges. As this date was well within
the time that Mr. Kennedy made his claim for additional benefits requesting release surgery
for his left carpal tunnel, his claim for additional benefits was timely filed.
We observe that, in Nucor’s argument under this point, it places great weight on
what it claims is an erroneous date contained in the Commission’s opinion. In particular,
the Commission found that Nucor’s last payment of permanent partial disability benefits
(Mr. Kennedy had been assigned a 10% permanent anatomical rating) was on December 2,
2011. Nucor asserts that this date was incorrect and directs us to documentation purportedly
showing that the Commission was referencing a date concerning a proposed but
unconsummated settlement between the parties. Whether the Commission used a wrong
date in 2011 is irrelevant for purposes of this appeal. That argument may have been relevant
in the March 2013 hearing, but Nucor chose not to appeal that decision. The doctrine of
res judicata applies in workers’ compensation cases, Stallworth v. Hayes Mechanical, Inc., 2013
Ark. App. 188, and res judicata bars not only the relitigation of claims litigated in the first
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Cite as 2017 Ark. App. 126proceeding, but also those which could have been litigated. Parker v. Johnson, 95 Ark. App.
213, 236 S.W.3d 1 (2006). If Nucor wanted to raise a statute-of-limitations issue regarding
an alleged incorrect date in the 2013 proceeding, it was required to do so then. It is too
late to raise it now. We note that Nucor makes no argument on appeal that the one-year
limitations period expired sometime after the ALJ’s March 13, 2013 opinion awarding
additional medical benefits was issued.
Nucor’s remaining argument is that additional medical treatment for Mr. Kennedy’s
left carpal tunnel syndrome is not reasonable or necessary. Arkansas Code Annotated section
11-9-508(a) provides that an employer is required to provide for an injured employee such
medical services as may be reasonably necessary in connection with the injury received by
the employee. It is the employee’s burden to prove by a preponderance of the evidence
that medical treatment is reasonable and necessary. Goyne v. Crabtree Contracting Co., 2009
Ark. App. 200, 301 S.W.3d 16. Nucor contends that Mr. Kennedy decided to forego left-
wrist release surgery for a period of six years, that the proposed surgery was based mostly on
his subjective complaints, and that Mr. Kennedy failed to meet his burden of proving
entitlement to the surgery.
We hold that substantial evidence supports the trial court’s award for additional
medical treatment to include the recommended left carpal tunnel release surgery. What
constitutes reasonably necessary treatment is a question of fact for the Commission, which
has the duty to use its expertise to determine the soundness of the medical evidence and to
translate it into findings of fact. Wise v. Village Inn, 2015 Ark. App. 406, 467 S.W.3d 186.
Objective nerve-conduction studies confirmed the ongoing presence of carpal tunnel
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Cite as 2017 Ark. App. 126syndrome in both of Mr. Kennedy’s wrists, and Dr. Wirges recommended left carpal tunnel
release surgery for treatment of the compensable condition. In his reports, Dr. Wirges
indicated that the initial focus had been on the right carpal tunnel, and that they were
waiting to see how the right side responded to the surgeries before scheduling the left-side
release surgery. It was within the Commission’s province to credit Dr. Wirges’s
recommendation of left carpal tunnel release surgery, which Mr. Kennedy testified he
wished to undergo because he did not want to take medication for the rest of his life.
Leaving the resolution of medical opinions to the Commission, as we must, we affirm its
finding that additional medical treatment for Mr. Kennedy’s left carpal tunnel syndrome was
reasonable and necessary.
Affirmed.
HARRISON and BROWN, JJ., agree.
Jason Ryburn, for appellants.
No response.
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