Nabholz Constr. Co. v. White

Cite as 2015 Ark. App. 102
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-673
Opinion Delivered February 18, 2015
NABHOLZ CONSTRUCTION APPEAL FROM THE ARKANSAS
CORPORATION and ST. PAUL WORKERS’ COMPENSATION
TRAVELERS INSURANCE COMMISSION [NO. E609910]
COMPANY
APPELLANTS
V.
BRADLEY WHITE and DEATH AND AFFIRMED
PERMANENT DISABILITY TRUST
FUND
APPELLEES
BRANDON J. HARRISON, Judge
Nabholz Construction Corporation and St. Paul Travelers Insurance Company
(collectively referred to as “Nabholz”) appeal the Workers’ Compensation Commission’s
decision to award Bradley White additional-medical benefits. Nabholz argues that (1) the
Commission erred in holding that the statute of limitations did not bar White’s claim for
additional benefits, and (2) no substantial evidence exists to support an award of
additional-medical benefits. We affirm the Commission’s decision.
I. Facts
In 1996, nineteen-year-old Bradley White fell thirty-five feet from a building on a
Nabholz Construction worksite. White sustained low back and ankle injuries. Nabholz
accepted these injuries as compensable and paid medical, indemnity, and permanent
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anatomical-impairment benefits to White. In 1998, White filed an AR-C Form with the
Workers’ Compensation Commission. He checked every box on the form—including
boxes for initial and additional benefits. Nabholz filed a closing report, an AR-4 Form,
with the Commission in October 2000 and considered the case closed. In September
2004, White was in a significant car accident, an event that will be discussed in due
course. From 2002 until 2007, Nabholz made no benefit payments. In 2006, White
requested a hearing on permanent-partial disability, “further medical treatment,” and a
change of physician; in 2007, the Commission issued an opinion.
The Commission’s 2007 opinion affirmed and adopted the ALJ’s findings that, in
1998, White had filed his AR-C Form and therefore made a claim for additional-medical
benefits within the two-year limitations period. The Commission also found that the
AR-4 Form that Nabholz filed in 2000 had “no legal effect” against White’s claim for
additional benefits. But the Commission also stated that White had “merely requested a
change of physician, rather than additional medical care. While [Nabholz’s] argument
may eventually be persuasive, should [White] seek additional medical care, it is no defense
to his current request to change physicians and have the associated initial examination.”
White was therefore awarded a statutory one-time change of physician and an initial
examination pursuant to Ark. Code Ann. § 11-9-514. Nabholz did not appeal the
Commission’s 2007 decision.
A change-of-physician order was entered in 2009, and White treated with Dr.
Harold Chakales. In 2010, White requested a hearing for “payment of any outstanding
medical,” among other things. Following Dr. Chakales’s death, White was awarded a
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new change-of-physician order to Dr. Gil Johnston. Nabholz paid Dr. Johnston’s bill.
White was not heard on his 1998 claim for additional-medical benefits until October
2013, when the ALJ convened a hearing and then issued an opinion.
In June 2014, the Commission adopted the ALJ’s opinion that stemmed from the
October hearing and found that White’s claim for additional-medical benefits, and
Nabholz’s statute-of-limitations defense, had not been adjudicated by the Commission in
2007. This means that the first hearing on White’s claim for additional-medical benefits—
and the related limitations defense—was held in October 2013. White testified briefly
during the October 2013 hearing about his work history and the 2004 car accident.
The Commission also found that the applicable statute of limitations, Ark. Code
Ann. § 11-9-702(b), did not time-bar White’s additional-medical-benefits claim. The
Commission reasoned that, because White had filed an AR-C Form with the “additional
benefits” and “additional medical expenses” boxes checked, and the form was filed within
two years of White’s initial injury in June 1998, the statute’s requirements were satisfied.
In the Commission’s view, the AR-C Form held open White’s claim for additional
benefits until the “claim was acted upon.” The Commission concluded that, because
White requested additional-medical treatment in the 1998 AR-C Form and that request
was not previously decided or dismissed, White’s claim was not barred by the statute.
II. Standard of Review
In reviewing decisions from the Workers’ Compensation Commission, we view
the evidence and all reasonable inferences in the light most favorable to the Commission’s
decision and affirm if it is supported by substantial evidence. Smith v. City of Ft. Smith, 84
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Ark. App. 430, 143 S.W.3d 593 (2004). Substantial evidence is that which a reasonable
mind might accept as adequate to support a conclusion. Id. The issue is not whether this
court might have reached a different result from the Commission. If reasonable minds
could have reached the Commission’s result, then we affirm. Id.
III. Statute-of-Limitations Issue
We address the statute-of-limitations issue first. Nabholz argues that the statute
time-bars White’s claim because the last medical benefits paid in the case occurred in June
2002, and White waited more than eight years before acting again on his claim for
additional treatment. Nabholz contends that it communicated to White that it considered
the case closed when it filed a AR-4 Form with the Commission in October 2000. The
Commission’s holding, in Nabholz’s view, renders the statute “meaningless” and arguably
conflicts with our prior decisions in Flores v. Walmart Distribution, 2012 Ark. App. 201, and
Eskola v. Little Rock School District, 93 Ark. App. 250, 218 S.W.3d 372 (2005).
The statute governing the time for filing claims for additional benefits is section 11-
9-702(b):
(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.
Our supreme court interpreted subsection 702(b) in Plante v. Tyson Foods, Inc., 319
Ark. 126, 890 S.W.2d 253 (1994):
It is well-settled that the furnishing of medical services constitutes “payment
of compensation” within the meaning of the limitations statute and that such
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payment of compensation or furnishing of medical services tolls the running
of the time for filing a claim for additional compensation. The one-year
limitations period begins to run from the last payment of compensation,
which this court has held means from the date of the last furnishing of
medical services.
319 Ark. at 129, 890 S.W.2d at 255 (citations omitted). 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 means from the date medical services were last provided.
Explaining why it found that the limitations statute was tolled when White filed his
AR-C Form in 1998, the Commission wrote, “Arkansas Courts have long held that a
timely filed claim for additional benefits tolls the statute of limitations until the claim is
acted upon.” (emphasis added.) The broadly stated statute-of-limitations question this case
presents is: what is the legal effect of the 1998 AR-C Form? That question, however,
raises narrower ones. Does that form’s filing remove White’s additional-medical benefits
claim from the time-bar shadow because it was filed within two years of the date of
White’s compensable injury? Or did the form’s filing only stop the limitations period
from ticking until the claim is “acted upon”? There is a third option: White’s filing of
the 1998 AR-C Form could start a new limitations period running, the effect of which
would be that his claim is barred because there are treatment “gaps” after the last payment
of benefits was made in 2002.
The case law in general supports the notion that a timely claim for benefits stops
the limitations period from running against it. In Jones Truck Lines v. Pendergrass, 90 Ark.
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App. 402, 206 S.W.3d 272 (2005), for example, a claimant’s 2003 claim for knee surgery
was not time-barred although the compensable injury occurred more than thirty years
earlier, in 1971. The claimant had filed a timely claim for additional benefits in 1974 and
it remained open, but inactive, because the claim was neither decided nor dismissed. Our
supreme court affirmed this principle in VanWagner v. Wal-Mart Stores, Inc., 368 Ark. 606,
249 S.W.3d 123 (2007), recalling that the claimant’s additional-benefits claim was not
time-barred because: (1) a hearing was never held on the claim; (2) the claim was placed
on inactive status; and (3) a final order was never entered on his case. Id. The bottom
line appears to be that the critical inquiry for statute-of-limitations purposes is the date a
claim is adjudicated. Bledsoe v. Georgia-Pac. Corp., 12 Ark. App. 293, 675 S.W.2d 849
(1984). But see Curtis v. Big Lots, 2009 Ark. App. 292, at 6, 307 S.W.3d 37, 40 (noting
that a dismissal pursuant to Ark. Code Ann. § 11-9-702(d) “has been ruled to ‘untoll’ the
statute of limitation”). We therefore affirm the Commission’s reasoning that White timely
asserted his claim for additional benefits within the two-year limitations period in 1998
because the claim was neither dismissed nor decided until 2013.
Nabholz claims that our decisions in Flores, supra, and Eskola, supra, counsel us to
reverse the Commission. In those cases, we affirmed the Commission’s finding that the
statute of limitations barred the claimants’ benefits requests. Each case dealt with a request
for additional-medical benefits, though the real issue in Flores was whether the timely filed
claim for additional-medical benefits preserved a claim for permanent-disability benefits
filed outside the one-year-limitations period. We held in Flores that a timely request for
additional-medical benefits does not hold the statute open for an untimely request for
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permanent-disability benefits. Because Flores did not address a potentially untimely
additional-medical benefit claim, it does not control the limitations issue presented here.
Eskola presents a thornier question. Eskola was a high-school football coach who
suffered a compensable shoulder injury in September 1998. After the injury, Eskola saw
Dr. Richard Nix and received muscle relaxers, cortisone injections, and physical therapy.
He did not file an AR-C Form until almost one year later, in June 1999. Eskola’s AR-C
form, like White’s AR-C Form in this case, had every box on it checked—including
boxes for both initial and additional benefits. But Eskola, unlike White, had not yet
received any workers’ compensation benefits when he filed his AR–C Form. Within
months of filing his 1999 AR-C Form requesting benefits, Eskola was considered a
candidate for shoulder surgery; he did not, however, choose to have the surgery until
2003. By that time, our court ruled, it was too late—the statute had run on Eskola’s claim
for additional benefits, including his request for shoulder surgery.
According to the Commission, the key distinction between this case and Eskola is
factual. In Eskola, the “all checked” AR-C Form was treated as a claim for initial benefits.
In this case, the “all checked” AR-C Form was treated as a claim for additional benefits.
Acknowledging that Eskola gives us pause, we nonetheless affirm the Commission here. In
doing so we rely on Eskola’s reasoning that “[a] claim request cannot be considered to be
both an initial request for compensation and an additional request for benefits at the same
time.” 93 Ark. App. at 253, 218 S.W.3d at 374.
Whether a claim is an initial request for benefits, or a request for additional
benefits, is a fact question that the Commission must first decide. Here, we defer to the
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Commission’s fact-based decision to characterize White’s AR-C Form as a request for
additional benefits. Unlike Eskola, White had been receiving medical, indemnity, and
permanent anatomical-impairment benefits for nearly two years before he filed his AR-C
Form. The Commission’s determination that the form was a request for additional
benefits is therefore supported by substantial evidence. So the reasons Eskola’s additional-
benefits claim was time-barred do not apply here.
Our determination that a timely filing of an AR-C claim for additional benefits
suspends the statute of limitations is in tension with some prior dicta, most notably that
expressed in Petit Jean Air Serv. v. Wilson, 251 Ark. 871, 874, 475 S.W.2d 531, 534 (1972)
(filing a claim with the Commission is “by no means comparable to the lodging of a
formal complaint in a court of law”). But our holding is nonetheless in line with our
standard of review and recent caselaw that has addressed section 11-9-702(b).
IV. Additional-Medical-Benefits Claim
The Commission ruled that the record before it sufficiently supported White’s
claim for additional-medical benefits. Nabholz challenges that determination.
Consequently, we ask whether substantial evidence exists to support an award of
additional-medical benefits to White.
The Commission found that White had established, by a preponderance of the
evidence, that additional-medical treatment provided by Dr. Johnston was reasonably
necessary for treatment of his compensable back injury. (Recall that White received an
initial examination with Dr. Johnston because Dr. Chakales had died). The Commission
also found that Dr. Johnston’s referral to a pain-management doctor was reasonable and
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necessary medical treatment. The 2004 car wreck, the Commission determined, was not
an independent intervening cause of White’s need for additional treatment.
Nabholz argues that the Commission’s decision is flawed because the record shows
that it last paid medical benefits to White in June 2002, that one or more gaps in medical
treatment continued until White was injured in an automobile accident in September
2004, and that it is not required to pay benefits for injuries caused by the car accident. In
Nabholz’s view, the Commission should have concluded that the car wreck was an
independent intervening cause that relieved Nabholz of any obligation to pay additional-
medical benefits to White.
Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an employer
to promptly provide an injured worker medical treatment “as may be reasonably necessary
in connection with the injury received by the employee.” The employee must prove by a
preponderance of the evidence that medical treatment is reasonable and necessary. Wal-
Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes
reasonably necessary treatment is a question of fact the Commission decides. Hamilton v.
Gregory Trucking, 90 Ark. App. 248, 205 S.W.3d 181 (2005). Medical treatment intended
to reduce or enable an injured worker to cope with chronic pain attributable to a
compensable injury may constitute reasonably necessary medical treatment. LVL, Inc. v.
Ragsdale, 2011 Ark. App. 144, 381 S.W.3d 869; see also Artex Hydrophonics, Inc. v. Pippin, 8
Ark. App. 200, 649 S.W.2d 845 (1983) (holding that respondents remain liable for
medical treatment reasonably necessary to maintain a claimant’s condition even after the
healing period ends).
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Here, substantial evidence exists to support the Commission’s findings that
“additional follow-up care”—with White’s treating physician, Dr. Johnston, and the
management of prescription medication through a referral to a pain-management
specialist—was reasonably necessary medical treatment. After White’s 1996 fall, he
received an open reduction and internal fixation for a left ankle fracture. He also had a
lumbar fusion to stabilize a “burst fracture” he sustained in his low back. In 1997, a report
from Dr. Anthony E. Russell noted a “significant loss” of paraspinous muscle and that
White “could expect to have a significant pain” from the loss. Dr. Russell also “strongly
recommended” that White consider some type of sedentary work because “[h]aving had
this type of surgery at this young age, he is dooming himself to long term back problems if
he does not eliminate the heavy physical labor.” White was paid a lump sum for a 15%
disability rating he received for his ankle and a 23% rating for his body. He also saw a
pain specialist, Dr. Garlapati, in 2005. Dr. Garlapati diagnosed White with cervical
radicular pain; left upper extremity; severe myofascial pain syndrome; bilateral neck and
left shoulder; asymmetry of the left body that involves decreased left shoulder muscle mass
and decreased range of left ankle movements; and a history of fusion at L4-5. A 2005
letter from Dr. J. Michael Calhoun stated that White “will require intermittent
medications and physical therapy most likely for the remainder of his [life] in order to
continue to be a productive citizen.”
Dr. Chakales’s reports from 2009 to 2011 show that he thought White had “some
problems with persistent, chronic pain.” Dr. Chakales’s records also noted “degenerative
traumatic arthritis of the ankle joint itself,” degenerative disc disease (C4-5, C5-6) with
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radicular symptoms, and he prescribed pain medicine, including opioid pain medicines.
Dr. Johnston, to whom the Commission referred White after Dr. Chakales’s death, wrote
that White “certainly has much cumulative trauma . . . his injuries are well-documented
and evaluation by pain management specialist will be helpful.”
The record supports the Commission’s finding that White is entitled to additional-
medical treatment for his pain-related conditions.
Moving on to the second part of Nabholz’s argument, according to Ark. Code
Ann. § 11-9-102(4)(F)(iii), benefits “shall not be payable for a condition which results
from a nonwork-related independent intervening cause following a compensable injury
which causes or prolongs disability or need for treatment.” Our supreme court
interpreted this section in Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 20
S.W.3d 326 (2000), and held that the statutory amendment adding the language that an
independent intervening cause does not require negligence or recklessness on the part of
the claimant did not modify prior case law, but rather codified prior case law, including
Guidry v. J. & R. Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). In
Guidry, this court stated that if there is a causal connection between a primary
compensable injury and the subsequent disability, there is no independent intervening
cause unless the subsequent disability is triggered by activity that is unreasonable under the
circumstances.
Substantial evidence supports the Commission’s conclusion that the 2004 car wreck
was not an independent intervening cause of White’s need for further medical treatment.
White’s conduct was not unreasonable in this case. He was never restricted from driving
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by any doctor. Nabholz contends that the injuries caused by White’s car accident were
not causally connected to his compensable injury, but there is contrary medical evidence.
For example, White had a follow-up visit with Dr. Russell six months before the car
accident. Dr. Russell noted that White’s “major complaint today has been a recurring
theme since the beginning. His left shoulder is causing quite a bit of trouble.” White
testified during the October 2013 hearing that he could “only do so much work” after he
fell because the different jobs caused his pain level to increase the more he used his body.
White also left his last regular employment outside the family businesses six months before
the wreck occurred.
Nabholz claims that Dr. Johnston recommended a pain specialist without any
knowledge of the injuries White suffered in the car accident and that White lacked
employment after the car accident to support a contrary conclusion. But the issue is not
whether we might have reached a different result or whether the evidence would have
supported a contrary finding; if reasonable minds could reach the Commission’s
conclusion, we affirm its decision. See Pafford Med. Billing Servs., Inc. v. Smith, 2011 Ark.
App. 180, 381 S.W.3d 921 (affirming Commission’s conclusion that a car accident was
not an independent intervening cause). Substantial evidence supports the Commission’s
decision that White’s motor-vehicle accident was not an independent intervening cause
that relieved Nabholz of further liability.
Affirmed.
ABRAMSON and GLOVER, JJ., agree.
Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Phillip M. Brick, Jr., for
appellants.
Stanley Law Firm, P.A., by: James W. Stanley, for appellees.
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