Court of Appeals

Cite as 2021 Ark. App. 374 ARKANSAS COURT OF APPEALS

TERRY WYNNE

DIVISION I No. CV-20-699

APPELLANT

V. LIBERTY TRAILER AND DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND

Opinion Delivered October 6, 2021 APPEAL FROM THE ARKANSAS

WORKERS’ COMPENSATION COMMISSION [NO. G508657]

APPELLEES REVERSED AND REMANDED RITA W. GRUBER, Judge This is an appeal from a decision of the Arkansas Workers’ Compensation Commission denying a claim for additional medical benefits filed by appellant Terry Wynne. Relying on our decision in Kirk v. Central States Manufacturing, Inc., 2018 Ark. App. 78, 540 S.W.3d 714, the Commission found that the statute of limitations barred appellant’s claim. Appellant’s sole point on appeal is that the holding in Kirk is erroneous and should be overruled. For the reasons set forth herein, we reverse and remand. Appellant sustained a compensable injury to his right shoulder on November 11, 2015, while employed as a trailer technician and certified welder for appellee Liberty Trailer. He was injured when he fell off a ladder trying to remove and replace a tarp over a trailer for a customer. He had his first surgery on his right shoulder on February 2, 2016, and a second surgery on February 17, 2017, because his condition had not improved. He complained that the second surgery still had not helped his condition, and he was sent to

physical therapy, which also did not remedy his condition. He was then seen by Dr. Charles Pearce, who prescribed medication and referred him to another surgeon for evaluation. Appellant completed a functional capacity evaluation on October 27, 2017, and then returned to Dr. Pearce for a follow-up appointment on October 30. Dr. Pearce determined that appellant had reached maximum medical improvement and released him to return to light-duty work with permanent restrictions. Appellant testified that he continued to experience stabbing pain in his right shoulder, and in January 2018, he returned to his family doctor, Dr. Joe Buford, who prescribed pain medication. Dr. Buford then referred him to Advanced Spine and Pain Center, where appellant continues to receive pain-management treatment. Appellant’s lawyer filed a Form AR-C with the Commission on February 25, 2019, requesting “Additional Temporary Total, Additional Temporary Partial, Additional Permanent Partial, Additional Medical Expenses, Rehabilitation, Attorneys Fees, and Other.” The parties agreed at a prehearing conference that the issues to be litigated were whether appellant was entitled to additional medical treatment in the form of pain management and whether the claim for additional medical benefits was barred by the statute of limitations, as appellee contended. A hearing was held before the administrative law judge (ALJ) on January 8, 2020. The ALJ’s opinion, issued on May 18, did not address whether appellant was entitled to additional medical treatment because it found that the claim was barred by the statute of limitations. The ALJ based her decision on our supreme court’s opinions in White County Judge v. Menser, 2020 Ark. 140, 597 S.W.3d 640, and Stewart v. Arkansas Glass Container, 2010 Ark. 198, 366 S.W.3d 358, and this court’s decisions in Flores

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v. Walmart Distribution, 2012 Ark. App. 201, and Kirk, supra. The Commission affirmed and adopted the opinion of the ALJ, denying the claim as barred by the statute of limitations. While we generally affirm workers’-compensation appeals if the decision is supported by substantial evidence, we review questions of law from the Commission de novo. This appeal concerns the construction and application of Arkansas Code Annotated section 11-9-702(b)(1) (Repl. 2012). The correct interpretation and application of an Arkansas statute is a question of law. Menser, 2020 Ark. 140, at 7, 597 S.W.3d at 644. This court decides what a statute means. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008). When we interpret the workers’-compensation statutes, we must strictly construe them. Id., 283 S.W.3d 209; Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2012). Strict construction is narrow construction and requires that nothing be taken as intended that is not clearly expressed. Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). The doctrine of strict construction requires this court to use the plain meaning of the language employed. Id., 26 S.W.3d 771. Appellant argues that our decision in Kirk, supra, incorrectly interprets the governing statute of limitations and erroneously expands the holding of Flores, supra, and asks us to overrule it. The issue before us is whether appellant filed a timely request for additional medical benefits. The time limitations for requesting additional workers’-compensation benefits are set forth in Arkansas Code Annotated section 11-9-702, which provides, in pertinent part, (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

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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.

Ark. Code Ann. § 11-9-702. The facts relevant to the issue before us are that appellant was paid temporary and permanent total-disability benefits, the last payment of which was for the period of November 11 through December 14, 2018, by check issued on January 17, 2019. The last payment for medical benefits was on December 5, 2017, for services provided by Dr. Pearce on October 30, 2017. Appellant filed his claim for additional compensation—specifically for additional medical benefits—on February 25, 2019. Appellant contends that he filed the claim within one year “from the date of the last payment of compensation,” which, he argues, was on January 17, 2019—that is, the last payment of disability benefits. It is not disputed that appellant filed his claim within one year from the last payment for disability benefits. The Commission determined that appellant’s claim did not fall within the language of Ark. Code Ann. § 11-9-702(b)(1) as interpreted by the Arkansas appellate courts’ caselaw because the claim was for medical benefits and thus had to be filed within one year of the last payment for medical benefits. Accordingly, the Commission found that the statute of limitations had expired. We turn to the relevant caselaw. In Stewart, 2010 Ark. 198, 366 S.W.3d 358, the supreme court affirmed the Commission’s denial of additional disability benefits because the claim was not filed within the relevant statute of limitations pursuant to Ark. Code Ann. § 11-9-702(b)(1). The payment of last medical benefits in Stewart was on June 19, 2003, and the payment of last disability benefits was December 3, 2002. The claim for additional disability benefits was made in either 2005 or 2006. Therefore, unlike in the case at bar, the

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issue in Stewart was whether the statute of limitations was tolled by Stewart’s timely claim for additional medical benefits because the claim for additional disability benefits was clearly beyond one year from either the payment of last medical or disability benefits. The court stated it was not holding that “a request for additional compensation that is not acted on only tolls the statute of limitations with respect to that particular claim. Stewart’s earlier requests for medical benefits thus could not . . . toll the statute of limitations for all other claims for benefits that were not requested at that time.” Stewart, 2010 Ark. 198, at 11, 366 S.W.3d at 364. The court noted, however, that the claim for additional benefits (both medical and disability) had to be filed within one year “of the last payment of compensation (here, June 19, 2003) or two years from the date of injury (August 8, 2001)” to have been timely filed. Stewart, 2010 Ark. 198, at 13, 366 S.W.3d at 365. The court did not hold that a claim for additional disability benefits would be untimely when filed within one year of the last payment of medical benefits. We handed down Flores, supra, in 2012, affirming the Commission’s denial of permanent disability benefits because the statute of limitations had run. 2012 Ark. App. 201. Flores was injured on April 30, 2005, and both medical and disability benefits were paid. She timely requested additional medical treatment, and the Commission awarded additional medical benefits. Flores also requested additional disability benefits on October 11, 2010. The parties had stipulated that the “last payment of compensation . . . was on July 6, 2009,” which was for payment of the last authorized medical treatment. Id. at 7. Because her request for additional disability benefits was over a year from July 6, 2009, the Commission denied the claim. Flores’s argument on appeal was that her disability claim could not be barred by

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the statute of limitations as long as her medical-treatment claim remained open because there had not yet been a “last payment of compensation” within the meaning of the statute. We rejected the claim and affirmed the Commission’s denial of disability benefits because Flores’s request was more than a year past July 6, 2009. A claim for additional disability benefits was not precluded by the Flores holding if filed within one year of the last payment of medical benefits. The supreme court’s recent opinion in Menser, supra, also strongly suggests that a claim for additional benefits, whether medical or disability, is, as the statute specifically states, timely if filed “within one (1) year from the date of the last payment of compensation,” whether that compensation was for medical or disability benefits. Ark. Code Ann. § 11-9-702(b)(1). In Menser, the court reversed the Commission’s award of additional medical benefits, holding that the claim was barred by the statute of limitations. The last payment of medical benefits in Menser was March 26, 2014; the last payment of indemnity benefits was April 21, 2014. The court held that Menser had never effectively requested additional medical benefits as required by Ark. Code Ann. § 11-9-702(c), which is not an issue here. But the court also held that, to be timely under Ark. Code Ann. § 11-9-702(b)(1), Menser “was required to file a claim for additional benefits by April 21, 2015, which is ‘one year from the date of the last payment of compensation[.]’” Menser, 2020 Ark. 140, at 9, 597 S.W.3d at 645 (quoting Ark. Code Ann. § 11-9-702(b)(1)). This clearly indicates that a claim for additional medical benefits is timely if filed within one year of the last payment of disability benefits, which is precisely what occurred in the case at bar.

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Finally, we turn to our court’s decision in Kirk, supra. In Kirk, we affirmed the Commission’s denial of additional indemnity benefits where the claim was filed within one year of the last payment of medical benefits, holding that the statute of limitations had run on the claim. Kirk was injured on July 25, 2006, and received medical benefits until August 14, 2014. He also received indemnity benefits through 2008 and then again from 2013 until August 14, 2014. We affirmed the denial of additional indemnity benefits, reasoning as follows: Appellant’s first argument on appeal is that his claim for additional indemnity benefits is timely because Central States has provided continuous compensation. In support of this argument, he asserts that (1) his August 18, 2014 request for additional indemnity payments was within one year of his last payment of compensation, which was for his June 19, 2014 visit with Dr. Blankenship; and (2) the plain language of the statute—which refers to “any additional compensation”—does not require the last paid compensation to be the same kind sought for additional compensation, noting that courts have defined “last payment compensation” to include the date medical services were last provided.

Arkansas Code Annotated section 11-9-702 states in relevant part, that “[i]n cases where 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.” All parties agree that appellant never filed a Form AR-C, which is the typical method to notice a claim. However, he did notice a claim by requesting a hearing on the “issue of permanent and total benefits” by letter from his counsel dated August 18, 2014. Accordingly, absent some action that tolled the statute of limitations, appellant’s claim for additional indemnity benefits would normally have had to be filed within one year of August 14, 2014 (the date of the last receipt of medical benefits) or two years from July 25, 2006 (the date of injury). Under this timeline, it may have been possible that the statute of limitations had not run on appellant's request for additional indemnity benefits. However, the fact that Central States paid appellant indemnity benefits and then ceased for a period of time before resuming so bears on the outcome of this matter.

Appellant’s indemnity payments ceased from October 15, 2008, to October 28, 2013. While it is clear that appellant’s medical treatment continued through this gap in indemnity payments, the fact remains that appellant’s indemnity payments stopped for a period of five years before being resumed and he failed to file any claim

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for benefits during this time—formal or otherwise. This is similar to the appellant in Flores, who was injured on April 30, 2005, for which she received medical treatment and total temporary disability (TTD) benefits; filed a Form AR-C seeking additional treatment and TTD benefits on June 29, 2005; had a hearing and was awarded treatment and TTD benefits from June 17, 2005, through June 30, 2005; returned to work for the employer but eventually ceased working altogether; and did not request additional compensation until October 11, 2010.

Noting that the parties had stipulated that Flores’s last medical treatment occurred on July 6, 2009, the ALJ issued an opinion granting Flores’s claims for additional medical benefits, but stated that her claims for benefits attributable to permanent impairment and wage-loss disability were barred because they were first raised in her October 11, 2010 letter, a date which was not within two years of her injury or one year of her last payment of compensation. This court affirmed the ALJ and in doing so, made it clear that the statute of limitations can run on a claim for additional indemnity benefits and not have run on additional medical benefits.

In the case at bar, appellant never filed any request for additional indemnity benefits—whether through the typical Form AR-C form or another method—until August 18, 2014, and this request was made after there had been a five-year gap in receipt of indemnity benefits. That gap began and ended a little less than six years and three years, respectively, before the date of appellant’s claim for indemnity benefits. The purpose of the statute of limitations in workers’ compensation cases is to permit a claimant's injuries to be promptly investigated and treated. The burden of filing a claim for additional benefits within the statute of limitations is upon the claimant. While certain claims may toll the running of the statute of limitations, such claims cannot revive other forms of compensation once the statute has run. This court cannot find that the ALJ erred in finding that appellant’s claim for indemnity payments was barred by his failure to raise his claim within the appropriate period of time after Central States ceased paying indemnity benefits nor can it find error in the ALJ’s assertion that “gratuitous payment of indemnity benefits does not revive the state of limitations[.]”

Kirk, 2018 Ark. App. 78, at 5–9, 540 S.W.3d at 717–18 (emphasis added). Tolling was not an issue in Kirk because the claimant filed a request for additional indemnity benefits on August 18, 2014, which was clearly within one year of the last payment of compensation—that is, medical benefits paid on August 14, 2014—as we recognized in the emphasized language quoted. The relevant statute of limitations provides that where “any compensation, including disability or medical, has been paid on account of

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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.” Ark. Code Ann. § 11-9-702(b)(1). We can find no exception in the statute that applies when one type of benefit ceases for a period of time. Indeed, the issue appears to be specifically contemplated by the language “any compensation.” Our doctrine of strict construction requires that nothing be taken as intended that is not clearly expressed. Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). To the extent that Kirk held that one must file a claim for additional medical or disability benefits within one year of the last payment of the specific type of benefit being requested—rather than within one year from the last payment of compensation for any type of benefit—we overrule it. Accordingly, because appellant filed his claim for additional medical-treatment compensation on February 25, 2019, which was within one year of the date of the last payment of compensation—here, disability benefits on January 17, 2019—his claim was filed before the statute of limitations had run. Therefore, we reverse the Commission’s decision denying benefits and remand for further proceedings. Reversed and remanded. ABRAMSON, VIRDEN, WHITEAKER, and VAUGHT, JJ., agree. HIXSON, J., dissents. KENNETH S. HIXSON, Judge, dissenting. Here is the problem boiled down to the basics. There is a myriad of benefits awarded by the Workers’ Compensation Act to injured workers. There are temporary total-disability indemnity benefits (TTD), permanent

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partial-disability indemnity benefits (PPD), permanent total-disability indemnity benefits (PTD), medical benefits, rehabilitation benefits, travel benefits, and even wage-loss benefits. 1 I would presume that each of these benefits would qualify as “payment of compensation” under the statute of limitations codified at Ark. Code Ann. § 11-9-702 (Repl. 2012). The issues presented in this appeal pertain to a claimant’s subsequent request for additional compensation. This statute provides in pertinent part: “(b)(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. . . .” 2 (Emphasis added.) There are two additional-compensation scenarios presented in this appeal interpreting section 702. Assume the claimant filed a workers’-compensation claim and received medical benefits and indemnity benefits. Scenario 1: Further assume that the claimant does not receive any indemnity benefits for more than one year and subsequently files a claim for additional indemnity benefits. The question here is whether a claim for additional indemnity benefits is time-barred or whether the payment of other types of compensation (typically medical benefits) tolls the statute of limitations. Scenario 2: Further assume that the claimant does not receive any medical benefits for more than one year and subsequently files a claim for additional medical benefits. The question here is whether a

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This list is not meant to be exhaustive, but illustrative.

2 For purposes of this dissenting opinion, I am not including the last section of Ark. Code Ann. § 11-9-702, which provides “or two (2) years from the date of the injury, whichever is greater.”

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claim for additional medical benefits is time-barred or whether the payment of other types of compensation (typically indemnity benefits) tolls the statute of limitations. The statute provides that a claim for additional compensation must be made within one year of the last compensation paid. What does that mean? Neither the statute nor the Act defines “any compensation” or “compensation” in this context, leaving the statute ambiguous. Hence, administrative law judges, the Workers’ Compensation Commission, and the appellate courts have often waded into this interpretative quagmire. So, if one were to apply the plain reading of the statute, one would dump all forms of compensation together into one big kettle and mix them up, and the result is that a claim for any type of additional compensation is timely if the claim for additional compensation is made within one year of any type of compensation paid. That is the basis of the majority opinion. It is a reasonable interpretation; however, it ignores the reality that in 2010, in Stewart v. Arkansas Glass Container, 2010 Ark. 198, 366 S.W.3d 358, the Arkansas Supreme Court kicked open the door to separate the additional medical benefits statute of limitations from the additional indemnity benefits statute of limitations. This court followed suit in 2012 in Flores v. Walmart Distribution, 2012 Ark. App. 201, and again in 2015 in Nabholz Construction Corp. v. White, 2015 Ark. App. 102, and again in 2018 in Kirk v. Central States Manufacturing, Inc., 2018 Ark. App. 78, 540 S.W.3d 714. Now, the majority wants to turn back the clock to pre-2010 and start all over. I disagree and respectfully dissent. Let’s begin. There are two parallel, but meandering, paths to follow in interpreting the phrase “any compensation” under section 702 for purpose of applying the one-year statute of limitations. They are parallel in that each path interprets the statute of limitations and the

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phrase “any compensation” under section 702. They meander, however, because many of the cases are fact and date intensive, and under our standard of review, we sometimes render opinions that appear to produce inconsistent results. One path is the claim for additional indemnity benefits (scenario 1). The other path is the claim for additional medical benefits (scenario 2). Two separate benefits; two separate paths. The genesis of whether there could be different statutes of limitation under section 702 for additional medical benefits vis-à-vis additional indemnity benefits is the seminal 2010 Arkansas Supreme Court case of Stewart v. Arkansas Glass Container, supra. 3 In Stewart, the claimant filed a claim for additional medical benefits, and a year or so later, the claimant filed another claim for additional medical benefits and additional indemnity benefits. In holding that the additional indemnity claims were time-barred, the supreme court noted: Stewart also attempts to distinguish Barnes on the grounds that, “in that case, the request for additional benefits was not the same kind of benefits initially denied,” and here, he urges that he is seeking benefits different than those that were denied in the original proceedings. [Emphasis in original.] Both Barnes and Eskola noted, however, that a request for additional compensation that is not acted on only tolls the statute of limitations with respect to that particular claim. [Emphasis added.] Stewart’s earlier requests for medical benefits thus could not, under Barnes and Eskola, supra, toll the statute of limitations for all other claims for benefits that were not requested at that time. [Emphasis added.] Accordingly, Stewart’s December 2005 claim for additional benefits—which he alleged included temporary total disability, controversion, and attorneys’ fees—was untimely.

Stewart, 2010 Ark. 198, at 11, 366 S.W.3d at 364. The clear import of Stewart is that a claim for one kind of benefit “could not . . . toll the statute of limitations for . . . benefits that were not requested at that time.” Clearly, the Arkansas Supreme Court in Stewart set its course

3 Actually, the Stewart opinion cites the earlier court of appeals cases Eskola v. Little Rock School District, 93 Ark. App. 250, 218 S.W.3d 372 (2005), and Barnes v. Fort Smith Public Schools, 95 Ark. App. 248, 235 S.W.3d 905 (2006), as authority.