Opinion
CLAIM NO. E201359
ORDER FILED NOVEMBER 9, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE STEVE R. CRANE, Attorney at Law, Magnolia, Arkansas.
Respondent represented by the HONORABLE NELSON V. SHAW, Attorney at Law, Texarkana, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on May 20, 1999. In that opinion and order, the administrative law judge found in relevant part that the claimant's claim for additional benefits is not barred by the statute of limitations. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.
Since the claimant's injury occurred prior to July 1, 1993, this claim is governed by the provisions of the Arkansas Workers' Compensation Law as it existed prior to the amendments of Act 796 of 1993.
Under Ark. Code Ann. § 11-9-702(b) (1987), a claim for additional compensation must be filed within one year from the last payment of compensation or two years from the date of injury, which ever is longer. The Arkansas Courts have found that the filing of a timely claim for additional compensation satisfies the statutory requirements and suspends the running of the statute.Bledsoe v. Georgia-Pacific Corp., 12 Ark. App. 293, 675 S.W.2d 849 (1984). Furthermore, the Arkansas Court of Appeals has held that a timely filed claim for additional compensation tolls the statute of limitations so that subsequent claims are not barred by the statute, even though over two years from the date of the injury or over one year from the date of the last payment of compensation passes before the later claim is filed. Bledsoe,supra; Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986); Arkansas Power and Light v. Giles, 20 Ark. App. 154, 725 S.W.2d. 58 (1987). In each of these cases, the sole issue before the Court was whether the statute of limitations barred a claim for additional compensation filed over two years after the date of the injury and over one year after the last payment of compensation. In each case, a timely filed claim for additional compensation had previously been filed, and in each case, the Court found that the timely filed claim tolled the statute and prevented the statute from barring the later request for additional benefits.
In the present case, the respondents seem to suggest that, because the respondents did not pay the claimant any form of compensation for a period in excess of one year in 1997-98, the respondents' liability was severed under Ark. Code Ann. § 11-9-102(b). However, we note that the respondents' own pre-hearing information form acknowledges that the claimant filed a timely claim in January of 1992, following his compensable injury on October 27, 1991. Therefore, under the precedent inBledsoe, Sisney, and Giles, we are constrained to find that the respondents have failed to establish that their failure to pay compensation in 1997-98 bars the claimant's timely filed 1992 claim, as they seem to assert.
In reaching this conclusion, we are aware that a final order disposing of the claimant's 1992 claim would terminate the tolling of the limitations period. See, Joe Brennan General Contracting v. Adair, 62 Ark. App. 240, 971 S.W.2d 798 (1998). In the present case, there has been some discussion regarding a prior decision perhaps filed subsequent to the claimant's 1992 claim. However, we note the record does not contain a copy of the claimant's 1992 claim form or a copy of any prior or subsequent Commission or court decisions. We also note that the statute of limitations is an affirmative defense which the respondents, therefore, have the burden of establishing. On this record, there is simply no evidence on which to support a finding that any prior Commission or court decision disposed of all issues in the claimant's 1992 claim. Consequently, we find that the respondents have failed to meet their burden of proof that the claimant's 1992 claim is barred by the statute of limitations.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be and hereby is, affirmed.
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (1987).
IT IS SO ORDERED.
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PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.