Opinion
CLAIM NOS. E500623 E111402
OPINION FILED JULY 7, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by LAURA J. McKINNON, Attorney at Law, Fayetteville, Arkansas.
Respondent No. 1 represented by FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Respondent No. 3 represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] Respondent No. 1 appeals a decision by the Administrative Law Judge finding that the claimant's injuries in 1994 were a recurrence of his 1991 injury, and finding that respondent No. 1 was responsible for the benefits associated with the claimant's injuries in October and November of 1994. The Administrative Law Judge further found that respondent No. 1 was estopped from asserting the statute of limitations as a defense. Based upon ourde novo review of the record, we find that the decision of the Administrative Law Judge should be reversed. We find that the claimant suffered an aggravation of his pre-existing injury in October and November of 1994 and that liability for temporary total disability benefits from November 28, 1994 through November 10, 1995 and for the 16% permanent partial disability rating to the body as a whole assessed to the claimant should be equally apportioned against respondent No. 1 and respondent No. 3. We further find that the statute of limitations is applicable and bars recovery from respondent No. 1.The evidence reveals that Mid-Continent Casualty was the workers' compensation insurance carrier for respondent employer in 1991 and that National American Insurance provided coverage in 1994.
In May of 1991 the claimant sustained a back injury diagnosed by his treating physician as an "acute lumbosacral strain". The claimant returned to work within a few days but continued to have back problems. From May 31, 1991 until October 15, 1992, the claimant received medical attention on four separate occasions. On each occasion the claimant gave a history of pain prior to the May 31, 1991 back strain. During his May 31, 1991 initial visit to Dr. Ted Honghiran, the claimant reported that "he had a history of having back problems in the past, about ten years ago, but no recent injury." The claimant again sought medical care on March 30, 1992. On this occasion, the claimant reported to Dr. Honghiran that he had "been having back problems for the past five years since he hurt his back once five years ago and again last June."
On September 4, 1992, the claimant sought treatment from Dr. Robert H. May. The claimant was complaining of back pain that had been "going on for several years. He remembered an incident in 1980 when he was lifting and had onset of pain and muscle spasms then. The last injury episode was in May, 1991." On October 15, 1992, the claimant went to the Johnson County Regional Hospital Emergency Room with back pain. The claimant gave a history of having problems for several years and he reported that his pain started the day before without any trauma or stress.
On September 11, 1992, the claimant was diagnosed with a subligamentous disc herniation to L4-L5 and L5-S1. After seeing the claimant on November 3, 1992, Dr. May noted that he was still suffering from some discomfort along with intermittent tingling and numbness in his feet. The claimant canceled the January 8, 1993 appointment and it appears on February 4, 1993 that Dr. May referred the claimant to Dr. Albert McDade. The appointment on February 25, 1993 with Dr. McDade was canceled. The claimant did not see Dr. McDade until June of 1994. The claimant was able to go without medical treatment for approximately 16 months. An MRI was performed on February 25, 1994 indicating a "central L5 disc paramedian and right with little retrolisthesis of L5 over S1 and from central there is a spondylitic ridge at L4."
The claimant testified that on October 13, 1994 he was in the process of emptying a 15 foot tall tank and strained his back while trying to lift the hose over the top. The claimant went to the emergency room but only missed a few days of work as a result of this incident. A second incident took place on November 28, 1994 as the claimant was walking across a disposal well when the doors gave way and the claimant began to fall into the pit. The claimant threw himself backwards in order to keep from falling and hit the top of the steel tank. After the October and November 1994 injuries, the claimant was unable to work and eventually had to undergo surgery.
On June 26, 1995, Dr. Michael Hendren, one of the claimant's treating physicians, opined that, based upon objective medical findings and within a reasonable degree of medical certainty, claimant had sustained a work-related accidental injury on November 28, 1994 and that this injury was the major cause of his need for medical treatment and his disability. In addition, Dr. Albert McDade testified that historically and symptomatically the claimant was worse after the October and November, 1994 injuries. Dr. McDade opined that claimant's surgery was necessitated by his dramatically heightened symptomology following the November 1994 injury. When asked to compare the November 1994 injury to the 1991 fall, the claimant said the 1994 injury was much worse. The claimant stated that he had no leg pain after the 1991 incident but after the 1994 fall he did. After the 1991 incident the claimant was able to work 8 to 24 hours a day. However, after the 1994 fall, he could not work at all until after the 1995 surgery provided relief from the pain caused by the fall.
The claimant's mother, Margaret Nordin, testified that after the November 1994 incident the claimant could barely get out the door. She stated that she had seen him in pain before but his 1994 problems were much different because he was in a lot more pain.
The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
The Commission need not base a decision on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purposes of workers' compensation law. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). As our Supreme Court has stated:
The Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant's injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as well as lay testimony and the testimony of the claimant himself. Further . . . while medical opinions are admissible and frequently helpful in workers' compensation cases, they are not conclusive.
A. G. Weldon v. Pierce Brothers Construction, 54 Ark. App. 344, 925 S.W.2d 179 (1996).
A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Aetna Ins. Co. v. Dunlap, 16 Ark. App. 51, 696 S.W.2d 771 (1985). Only where it is found that a second episode has resulted from an independent intervening cause is liability imposed upon the second carrier.Id.
We find that the claimant has failed to prove by a preponderance of the evidence that he sustained a recurrence of his 1991 injury in November of 1994. The evidence simply does not support such a finding. The evidence in the form of the testimony of Dr. Hendren who stated that the claimant's work-related injury in November of 1994 was the major cause of his need for medical treatment and his disability along with the testimony of Dr. McDade supports a finding that the claimant sustained an aggravation or a new injury in November of 1994. This is further supported by the testimony of the claimant and the claimant's mother. In addition, Dr. Cyril Raben opined that the claimant experienced a marked exacerbation of his previously existing condition after the 1994 accident. Therefore, based upon our de novo review of the record, we find that the claimant did not suffer a recurrence of his injuries in 1994, but that the claimant sustained an aggravation of his preexisting condition in November 1994 when he was involved in an independent intervening accident.
Because we find the claimant sustained an aggravation, we find that the expenses associated therewith should be apportioned. In the case of Aetna Ins. Co. v. Dunlap, 16 Ark. App. 51, 696 S.W.2d 771 (1985), the issue of apportionment of responsibility between insurance carriers was considered and the Court stated:
Arkansas cases have followed the rule that all of the logical consequences flowing from an initial injury are the responsibility of the carrier at the time of the initial incident. While the second complication is a natural and probable result of the first injury, it is deemed a recurrence and the original carrier remains liable. Only where it is found that a second episode has resulted from an independent intervening cause and is liability imposed upon a second carrier.
Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W.2d 465 (1976),Calion Lumber Co. v. Golf, 14 Ark. App. 18, 684 S.W.2d 272 (1985), Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). These cases clearly indicate that application of the doctrine of apportionment requires a finding that there was a separate episode resulting from an independent intervening cause.
In Dunlap, the Court held that apportionment was proper where a preexisting disease or anomaly is accelerated or aggravated by a work-related accident. The second insurer is liable for only the degree of acceleration or aggravation attributable to the accident. It is clear from the evidence presented that the incidents in October and November 1994 were independent intervening causes. Both lay and medical testimony indicates that the claimant had a marked exacerbation of his symptoms after these incidents. Following the May 1991 injury, the claimant was diagnosed with a definite disc herniation at L4-5 and L5-S1 yet he was able to work 8-24 hours a day. It was not until the incident in November of 1994 that the claimant was unable to carry out his employment duties when the herniated disc at L5-S1 finally made contact with the existing nerve root. It is apparent that the incidents in October and November of 1994 aggravated the claimant's preexisting problems. Therefore, it is proper that respondent No. 3 be held liable for only the degree of aggravation the 1994 incidents attributed to claimant's condition. In our opinion, the 1994 incidents contributed 50% to claimant's present disability and need for treatment. Therefore, respondent No. 1 and respondent No. 3 are equally liable. It can be argued that, but for the claimant's 1991 injury, the independent intervening accidents in 1994 may not have resulted in claimant's need for surgery. Therefore, when these incidents are all considered together, we find that the claimant's disability and need for surgery is equally attibuted to the 1991 and 1994 incidents.
Additionally, we find that the statute of limitation applies in this case. The Administrative Law Judge found that respondent No. 1 was estopped from asserting a statute of limitations defense because a representative of the respondent employer had discouraged the claimant from filing a workers' compensation claim in 1994 for the 1991 injury. However, we find that the statute of limitations had run long before any alleged misconduct by the employer occurred in 1994.
In addition, to the extent that the claimant testified that he contacted Mr. MacCarley and the company owner, Mr. Fugitt in 1992 about filing his medical claims with the workers' compensation carrier rather than the company's group carrier, we note that Mr. MacCarley testified that he has never advised any employer to file a claim for benefits with the group carrier rather then with workers' compensation. In addition, Ms. Karen Wingo, the secretary for the respondent employer who processes workers' compensation claims for the respondent employer, testified that she has not participated in any discussions indicating that claims should be filed with the group carrier rather than workers' compensation carrier.
In assessing the weight to be accorded the claimant's hearing and deposition testimony regarding what transpired in 1992, we also find significant the following testimony provided by the claimant on cross-examination at the November 22, 1996 hearing:
Q. I'm going to be referring to my deposition that I took from you back on June 29, 1995. Okay. you told me that in March 1992 you attempted to turn that in as Workers' Comp. Do you remember telling me that?
A. I can't remember for sure.
Q. Well, were you making that up then?
A. No, I can't remember.
This testimony indicates that the claimant had no real recollection as to what was said in 1992 by the time of the 1996 hearing testimony. After weighing the testimony of the claimant, Mr. MacCarley, and Ms. Wingo, we find that the claimant has failed to show by a preponderance of the credible evidence that the respondent employer engaged in any conduct in 1992 or 1994 which should estop the respondent from asserting the statute of limitations' defense with regard to the claimant's 1991 injury.
Estoppel arises when one party changes his position to his detriment as the result of the conduct of another. Larzelere v. Stratton, 55 Ark. App. 174, 816 S.W.2d 614 (1991); Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984). If the statute had run because the claimant relied upon the respondent employer's statement that he need not file a workers' compensation claim, the employer and the carrier would be estopped from asserting the statute of limitations defense. However, in our opinion, this never occurred. The only testimony that is before the Commission asserting that the claimant was told not to file a workers' compensation claim is the testimony of the claimant himself. A claimant's testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985).Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief.Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).
We now turn to the evidence which indicates that the claimant did not file his claim within the statutory time period. Ark. Code Ann. § 11-9-702(b)(1) provides that "in 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 last payment of compensation, or two (2) years from the date of the injury, whichever is greater." The claimant bears the burden of acting within the statutory time allowed. Plant v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). The evidence shows that the claimant was injured on May 31, 1991 and benefits were paid to the claimant ending in June of 1991. The statute commences running as of the date that the medical services were last furnished. Heflen v. Pepsi-Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 365 (1968); Superior Federal Savings Loan Association v. Shelby, 265 Ark. 599, 580 S.W.2d 201 (1979). The claimant last received treatment on November 3, 1992 for his back problems and no further medical care was provided until February of 1994. This is well over one year. In calculating the statute of limitations, the statute ran in November of 1993. Therefore, the claimant failed to file within the statutory time period as set forth in Ark. Code Ann. § 11-9-702(b)(1).
Based upon our de novo review of the record, we find that the claim as it applies to respondent No. 1 is barred by the statute of limitations. We also find that the costs of the claimant's surgery and the benefits associated therewith ultimately resulted from the 1991 injury and October 1994 and November 1994 incidents combined. The record indicates that the claimant, after his 1991 injury, was able to return to work and was able to function although he had two medically documented herniated discs. It was not until the 1994 injuries that the claimant required surgery and had to be off work. In our opinion, the second and third injuries that subsequently happened in 1994 aggravated the claimant's work-related injury from 1991. As stated, the second insurer, which in this case is respondent No. 3, is liable for only the degree of acceleration or aggravation attributable to the accident. As previously stated, we find that respondent No. 1 and respondent No. 3 are equally liable for the claimant's benefits associated with his injury in 1994. Therefore, liability should be apportioned equally between them. However, because the statute of limitations applies, any claim against respondent No. 1 is barred.
Accordingly, we reverse the decision of the Administrative Law Judge finding the respondent is estopped from asserting the statute of limitations since we find the statute of limitations applies as against respondent No. 1. We further find that the claimant suffered an aggravation of his preexisting injury, and that respondent No. 1 and respondent No. 3 are equally liable. Since we find the statute of limitations applies, we find that recovery is barred against respondent No. 1.
IT IS SO ORDERED.
PAT WEST HUMPHREY, Commissioner
CONCURRING AND DISSENTING OPINION
[29] While I concur with the finding of the majority that claimant sustained an aggravation in 1994, I must respectfully dissent from the findings that any claim against respondent no. 1 is barred by the statute of limitations and that this is an appropriate case to apply the doctrine of apportionment.Claimant sustained an admittedly compensable injury in May 1991. The employer apparently paid appropriate benefits without the necessity of filing a formal claim with the Commission. When claimant returned for treatment in March 1992 for the continuing effects of the 1991 injury, he asked the owner, Gary Fugitt, to file for benefits under workers' compensation. However, claimant testified that the owner refused to fill out an accident report in order to claim benefits under workers' compensation, but instead facilitated a filing for payment under the group health insurance policy. Since the owner of the employer induced claimant to refrain from filing a claim for workers' compensation benefits, the employer, and thus, respondent no. 1, are estopped from asserting the statute of limitations as a defense.
The majority dismisses the above evidence based on claimant's seemingly inability to recall the 1992 conversation. However, as recognized by the Administrative Law Judge, claimant is an extremely poor historian.
If an attorney goes over every minute and irrelevant fact testified to in a deposition conducted one and a half years before the hearing, a claimant, and especially one who is a poor historian, will become confused and concerned about recallingexact testimony and for good reason. Once the pattern of this technique is established, it is certainly understandable if claimant unwittingly continues to give cautious answers to questions the Commission might ultimately deem significant.
In the present case, when questioned extensively by the attorney for respondent no. 3 about his deposition testimony on totally irrelevant matters, claimant typically answered "I'm not sure" or "I can't remember." Claimant acknowledged his attorney's concern that he was "getting paranoid he's (respondent's attorney) confusing you on these dates." Further, even the attorney for respondent no. 1 commented to claimant that "I know you feel like you've wandered into a blizzard of dates."
More importantly, the majority has relied on the often quoted statement that "[a] claimant's testimony is never considered uncontroverted." However, what is conspicuously absent from this analysis is the fact that Gary Fugitt, the owner and only person who is in a position to refute claimant's testimony in this regard, failed to even appear at the hearing and present sworn testimony. As a result of claimant's deposition testimony, the employer, without doubt, knew claimant was going to contend that the employer was estopped from asserting the statute of limitations as a defense based on the conversation with the owner. If the owner could contradict claimant's testimony in this regard, it is simply incredible that he would not appear and testify.
I would also point out that the two witnesses relied on by the majority merely testified that they had never advised any employee to file a claim with a group carrier rather than with workers' compensation or participated in any discussion to that effect. One would certainly not expect them to testify to fraudulent conduct. Further, their testimony in no way refutes the conversation claimant had with the owner. This scenario is all too common to dismiss out-of-hand.
Further, Kenneth McCarley, the supervisor who claimant testified was indifferent in his efforts to report a work-related injury, is certainly not a credible witness. He essentially admitted having an arrangement with Fugitt, the owner, to be paid in such a manner as to avoid fulfilling his child support obligations. This agreement would certainly cast doubt on the credibility of Fugitt, had Fugitt bothered to appear at the hearing. McCarley testified in the following manner concerning how he was paid by the employer:
Q. How much?
A. Six Fifty ($6.50).
Q. Did you make anything on top of that?
A. No.
Q. I was just wondering. Gary was making Eight Dollars ($8.00) an hour.
A. Yes.
Q. And you're his supervisor and you're telling us today that you made less than he did?
A. Right.
Q. You're not getting any other money sideways or anywhere?
A. No.
Q. And that's what you're going to tell us under oath here today?
A. I'm telling you what I'm getting an hour.
Q. Okay. Is there a trick to this question? Should I be asking you something that . . .
A. Could be.
Q. Well, why don't you enlighten me, sir.
A. I get, I guess, a salary. I get Six Fifty ($6.50) an hour, a hundred hours a week. So that was based on a child support deal at one time.
Q. Oh, okay. Is that to keep from having to pay some child support?
A. Well, I had to pay a bunch.
Q. Is that to keep from having to pay more?
A. Probably. I can't remember it's been so long.
Therefore, in my opinion, respondent no. 1 is estopped from asserting the statute of limitations as a defense and in accordance with the findings by the majority regarding apportionment, respondent no. 1 should be liable for benefits.
Even if the majority is correct that claimant sustained an aggravation in 1994, benefits should not be apportioned between the two carriers. There is insufficient evidence that claimant was suffering from a disability in the compensation sense prior to the 1994 injuries. In my opinion, without a prior disability, the injuries cannot combine to produce the present disability and allow apportionment of benefits. Further, apportionment should not be applied so as to leave disability benefits unpaid and uncollectible. See, Hawkins Construction Co. v. Maxell, 52 Ark. App. 116, 915 S.W.2d 302 (1996) (rev'd on other grounds, 23 Ark. 133, 924 S.W.2d 789 (1996)). Apportionment has been applied in the present case in order to limit claimant's benefits to one/half those to which he is entitled and this is wrong.
For the foregoing reasons, I concur in part and respectfully dissent in part.