Conway Printing Co. v. Higdon

Melvin Mayfield, Judge.

The issue in this appeal from a decision of the Workers’ Compensation Commission involves the statute of limitations. It was submitted on the following stipulations:

1. The Claimant sustained a compensable injury during the course and scope of his employment on or about October 26, 1987 and his wages were such as to entitle him to a compensation rate in the amount of $189.

2. The Claimant was treated for his back injury by Dr. Edward H. Saer and Dr. Saer assessed a permanent partial impairment rating of 10 percent to the body as a whole on February 7, 1990.

3. Check number 331035-1 from USF&G was sent to Willie Higdon on March 1, 1990 in the amount of $6,930 which paid the 45 weeks of permanent partial disability benefits in a lump sum.

4. The Claimant was seen by Dr. Saer on September 11, 1990, and this bill was paid by the Respondent/Carrier.

5. The Claimant returned to Dr. Saer for treatment on September 11, 1991, and this bill was controverted by the Respondents since the Claimant had not received any medical care or treatment between September 11, 1990, and September 11, 1991. The Respondents deny the charges for the September 11, 1991, office visit based on Ark. Code Ann. § ll-9-702(4)(b) and Cheshire v. Foam Molding Co., 37 Ark. App. 78 (1992).

A claim for additional benefits was filed with the Commission on January 14, 1992.

The administrative law judge held that the statute of limitations began running either on September 11, 1990, the date of the last visit of appellee to Dr. Saer, or on December 18, 1990, which would represent the last date of installment payment if the permanent partial disability benefits had been paid in installments rather than in lump sum. Either way, according to the law judge, the January 1992 filing of the claim was untimely.

The Commission unanimously reversed, stating:

Claimant sustained a compensable injury on October 26, 1987. On February 7, 1990, claimant’s treating physician assessed claimant’s permanent anatomical impairment at 10% to the body as a whole. These permanent disability benefits were paid in a lump sum. However, had the payments been made in installments only as they accrue, the last payment of benefits would have been on December 18, 1990. Thus, pursuant to Southern Cotton Oil Co. v. Friar, 247 Ark. 98, 444 S.W.2d 556 (1969), the statute of limitations commenced to run on December 18, 1990. Claimant returned to see Dr. Saer, his treating physician, on September 11, 1991. Respondent controverted this visit by alleging that the statute of limitations had run. Claimant filed his claim for additional benefits on January 14, 1992.

It is important to remember that respondent did not controvert the September 1991 visit as being unreasonable and unnecessary but solely on the basis of the statute of limitations. If respondent believed this visit to Dr. Saer was unreasonable and/or unnecessary, it could have, and should have, so alleged before the Administrative Law Judge. Thus, we will not remand this case to the Administrative Law Judge for a determination of an issue not raised by respondent, particularly when to do so would be based solely on unsubstantiated, entirely speculative argument. Additionally, respondent does not allege lack of knowledge of this visit. Therefore, the September 1991 visit tolled the statute of limitations until September 1992. The claim for additional benefits filed in January 1992 is easily within the one year statute of limitations.

For the foregoing reasons, we reverse the opinion of the Administrative Law Judge finding that this claim for additional benefits is barred by the statute of limitations.

Arkansas Code Annotated Section ll-9-702(b) (1987), provides in pertinent part:

TIME FOR FILING ADDITIONAL COMPENSATION. 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.

Appellant argues on appeal that the Commission erred in ruling that the claim for additional benefits was timely filed. Appellant contends that the “operative factor” in tolling the statute of limitations is the filing date of the claim and the burden is on the claimant to timely file for additional benefits. It cites St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983). While that case does say that the burden is on the claimant to file a timely claim for additional benefits it says nothing about the “operative factor” being the filing date.

Because the claim for additional compensation was filed on January 14, 1992, and the injury occurred on October 26, 1987, obviously more than two years prior to the filing, the question is whether the claim was filed within one year from the date of the last payment of compensation. The last payment of compensation has been equated with the date of the furnishing of medical services. Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 365 (1968); Phillips v. Bray, 234 Ark. 190, 351 S.W.2d 147 (1961); Cheshire v. Foam Molding Co., 37 Ark. App. 78, 822 S.W.2d 412 (1992).

Appellant concedes that Southern Cotton Oil Co. v. Friar, 247 Ark. 98, 444 S.W.2d 556 (1969), cited by the Commission, holds that the statute of limitations commences to run only from the date the last payment would have been due if the lump sum payment for permanent partial disability had been paid in installments. Even so, appellant argues, the claim for additional benefits would have been untimely because it was not filed until January 14, 1992, more than one year past the December 1990 date of last payment. And appellant contends the Commission erred in holding that the “Claimant’s medical treatment rendered in September of 1991, which Respondent controverted, renewed the one-year period of limitation.”It contends this conflicts with the case law holding that to toll the statute of limitations the employer must have knowingly and voluntarily furnished the medical services. Superior Federal Savings and Loan Assoc. v. Shelby, 265 Ark. 599, 580 S.W.2d 201 (1979); McFall v. U.S. Tobacco Co., 246 Ark. 43, 436 S.W.2d 838 (1969).

878 S.W.2d 4

The Commission held, however, that appellant’s failure to controvert at the hearing before the administrative law judge the September 1991 visit as unreasonable and unnecessary prevented, under the circumstances here, the issue to be considered in the appeal to the Commission. Therefore, the visit to the doctor tolled the statute of limitations, and the claim for additional benefits filed on January 14, 1992, was timely filed. We find the Commission’s reasoning persuasive.

Affirmed.

Jennings, C.J., and Cooper, J., agree.