Opinion
CLAIM NO. D907787
OPINION FILED APRIL 12, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID E. SMITH, Attorney at Law, Benton, Arkansas.
Respondent represented by JOHN D. DAVIS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on February 28, 1994.
After conducting a de novo review of the entire record herein, we find that claimant has failed to prove by a preponderance of the credible evidence that her problems beginning on October 19, 1992 are causally related to her employment with respondent. Therefore, we reverse the decision of the Administrative Law Judge.
A preponderance of the credible evidence indicates that claimant's problems subsequent to October 1992 are a recurrence of her May 21, 1989 injury and are not an aggravation of her pre-existing injury or a new injury. Additionally, a preponderance of the credible evidence shows that the claimant's claim for additional benefits is barred by the statute of limitations. Furthermore, the medical treatment claimant received on May 22, 1992 and on August 26, 1992 is not related to her May 21, 1989 injury.
When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence and the employer remains liable if the claim is made within the greater of two years after the injury or one year after the date of which compensation was last paid. . .
However, if the second period of disability is the result of a second incident which contributes independently to the injury, the injury is a new one. . .
McDonald Equipment Co. v. Turner, 26 Ark. 264, 766 S.W.2d 936 (1989).
On May 21, 1992, claimant fell at work when her foot got tangled in a telephone cord. She received emergency room treatment but did not miss work. Also, in August of 1992, claimant lifted a patient and popped her rib cage. There is insufficient evidence that either of these events or the treatment rendered for them is related to her compensable May 21, 1989 injury.
A review of the evidence indicates that claimant's difficulties subsequent to October of 1992 are a recurrence of the difficulties she sustained in a May of 1989 injury. There is insufficient evidence to indicate that claimant had a second incident which caused her back difficulties.
Claimant testified that the pain she experienced in October of 1992 was generally the same kind of pain that she had been experiencing continuously since May of 1989. Furthermore, claimant does not relate her October of 1992 pain to any incident except for the May of 1989 work-related incident.
Additionally, when claimant first was seen by Dr. Cash on October 22, 1992, she did not relay to him that her pain was caused by any accident, event or incident. Dr. Cash specifically describes claimant's condition as a "recurrence". Claimant was eventually seen by Dr. Peak in January of 1993. Dr. Peak stated that claimant mentioned a May 1989 lifting incident. There is no indication by Dr. Peak that claimant had any subsequent accident that resulted in or aggravated her back to cause the October of 1992 back pain. Furthermore, claimant was seen by Dr. Boos. Dr. Boos stated that claimant had related to him a history of back pain radiating into her right leg since May of 1989. There is no evidence in Dr. Boos records that claimant had experienced an aggravation or reinjury. Eventually, claimant was seen by Dr. Cathey. Dr. Cathey noted that claimant specifically denied any new back injuries or accidents and related her problems to her May of 1989 incident.
Claimant seemingly is of the opinion that her back pain in October of 1992 is causally related to her May 1989 lifting incident. Her testimony is that she continuously complained of pain and that the pain she was experiencing in October of 1992 was similar. This further supports the proposition that claimant is suffering from a recurrence and not an aggravation of a work-related injury. In October of 1992, claimant simply experienced a flare-up of the back pain she had been experiencing since May of 1989.
Claimant's claim for additional compensation was filed on August 10, 1993. Thus, according to A.C.A. § 11-9-702 (b), this claim is barred by the statute of limitations.
A review of the evidence indicates that claimant received workers' compensation benefits related to her May of 1989 injury through October 1, 1991. The next payment of compensation related to this injury was made by respondent on October 1992. Obviously, more than one year had passed since the last payment of workers' compensation benefits related to the May of 1989 injury. Furthermore, the benefits paid subsequent to October of 1992 do not revive claimant's claim. Evans v. Northwest Tire Service, 23 Ark. App. 11, 740 S.W.2d 151 (1987).
Claimant sustained a recurrence of her May of 1989 injury in October of 1992. Claimant had gone more than one year without receiving workers' compensation benefits for this injury. Therefore, claimant's claim is barred by the statute of limitations. Thus, we reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that she is entitled to additional benefits.
I agree with the Administrative Law Judge that in October 1992 claimant sustained either a new injury or an aggravation of her preexisting condition as a result of her job duties. However, even if claimant's condition is properly characterized as a recurrence of her work-related injury of May 1989, this claim is not barred by the statute of limitations. In order to toll the statute of limitations, claimant must have received benefits between October 1, 1991 and October 19, 1992. Claimant presented credible testimony that she never went over one year without receiving some sort of treatment. It must be remembered that the employer is a medical provider. Claimant testified that she frequently went to the emergency room and either received conservative treatment or free medication. Therefore, this claim is not barred by the statute of limitations.
For the foregoing reasons, I dissent. The opinion of the Administrative Law Judge awarding benefits should be affirmed.
PAT WEST HUMPHREY, Commissioner