Wynne v. Liberty Trailer

2021 Ark. App. 374

636 S.W.3d 348

Terry WYNNE, Appellant

v.LIBERTY TRAILER and Death and Permanent Total Disability Trust Fund, Appellees

No. CV-20-699

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 6, 2021

Rehearing Denied November 10, 2021

M. Keith Wren, Little Rock, for appellant.

Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, Little Rock, for separate appellee Liberty Trailer.

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, 66 S.W.3d 358, and this court's decisions in Flores v. Walmart Distribution , 2012 Ark. App. 201, 2012 WL 723252, 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 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 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 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...