Bryant School District v. Aylor

2011 Ark. App. 173, 381 S.W.3d 895, 2011 Ark. App. LEXIS 192
CourtCourt of Appeals of Arkansas
DecidedMarch 2, 2011
DocketNo. CA 10-1011
StatusPublished
Cited by1 cases

This text of 2011 Ark. App. 173 (Bryant School District v. Aylor) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant School District v. Aylor, 2011 Ark. App. 173, 381 S.W.3d 895, 2011 Ark. App. LEXIS 192 (Ark. Ct. App. 2011).

Opinion

RAYMOND R. ABRAMSON, Judge.

^During his employment with the Bryant School District, Walter Aylor had two, separate work-related injuries — one to his right shoulder and one to his left upper arm. The District accepted these injuries as compensable and paid benefits accordingly. In addition, the District accepted a 2% body-as-a-whole rating for the right shoulder and a 5% left-arm, upper-extremity rating. Aylor eventually sought, among other things not pertinent to this appeal, additional medical benefits for his left-arm injury and benefits pursuant to Arkansas Code Annotated section 11-9-505(a) (Repl.2002). The Commission held that Aylor’s claim was timely, that Aylor was entitled to additional medical benefits for his left-arm injury, and that Aylor was not entitled to any benefits under section ll-9-505(a). The District appeals and Ay-lor cross-appeals. We affirm in part and reverse and remand in part.

|2When a party is challenging the sufficiency of the evidence in a workers’ compensation case, we view the evidence in the light most favorable to the Commission’s findings. Pharmerica v. Seratt, 103 Ark.App. 9, 11, 285 S.W.3d 699, 701 (2008). We affirm if substantial evidence — evidence that a reasonable mind might accept as adequate to support a conclusion — supports the Commission’s decision. Id. The question is not whether we might have reached a different conclusion than the Commission if we had sat as the trier-of-fact or heard the case de novo. Gaither Appliance v. Stewart, 103 Ark.App. 276, 277, 288 S.W.3d 690, 691-92 (2008). Instead, we will not reverse unless we are convinced that fair-minded persons, with the same facts before them, could not have reached the Commission’s conclusion. Id. at 277, 288 S.W.3d at 692.

Statute of Limitations

“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. § ll-9-702(b)(l) (Supp.2009). The provision of medical services constitutes “payment of compensation” under the statute. Kent v. Single Source Transp., Inc., 103 Ark.App. 151, 156, 287 S.W.3d 619, 623 (2008). “[I]t is the furnishing of medical services, not the payment thereof, which constitutes the payment of compensation.” Id. “A claim for additional compensation must specifically state that it is a claim for additional compensation. |sDocuments which do not specifically request additional benefits shall not be considered a claim for additional compensation.” Ark.Code Ann. § ll-9-702(e). The filing of a claim for additional benefits tolls the running of the statute of limitations. Kent, 103 Ark.App. at 156, 287 S.W.3d at 622.

The parties stipulated that Aylor injured his upper left arm at work on August 16, 2006. Aylor began treating with Dr. Nguyen and continued to do so over the next few years. Indeed, Aylor saw Dr. Nguyen on April 30, 2008 for' a “flare[ ] up” of his right-shoulder and left-arm problems stemming from his two work-related injuries. According to the statute and case law, Aylor then had one year, until April 30, 2009, to file his claim for additional compensation. Ark.Code Ann. § 11 — 9—702(b)(1). In his February 2009 responses to the prehearing questionnaire, Aylor stated that he wás seeking benefits pursuant to section ll-9-505(a), wage-loss benefits in excess of his anatomical impairment, additional TTD benefits, and attorney’s fees. Aylor also specifically reserved the issue of additional medical treatment. Although the ALJ made no mention of Aylor making a claim for additional medical benefits in its April 14, 2009 prehearing order, it reiterated that the issues to be litigated were Aylor’s entitlement to additional TTD benefits, section ll-9-505(a) benefits, wage-loss benefits, and attorney’s fees. It was not until the July 2009 hearing, however, that Aylor officially sought additional medical treatment for his left-arm injury.

We agree with the Commission that the ALJ’s April 14, 2009 prehearing order, which stated that Aylor was seeking, among other things, additional TTD benefits and wage-loss |4benefits in excess of his already established permanent impairment rating, tolled the running of the statute of limitations. This document made it clear that Aylor was making a claim for additional benefits. Thus, following section 11 — 9—702(b)(1) and (c), Aylor’s claims, including his eventual claim for additional medical treatment for his left-arm injury, were timely. We affirm the Commission on this point.

Additional Medical Benefits

“The employer shall promptly provide for an injured employee such medical ... services ... as may be reasonably necessary in connection with the injury received by the employee.” Ark.Code Ann. § ll-9-508(a) (Supp.2009). Below, Aylor had the burden of proving by a preponderance of the evidence that the additional medical services he is requesting for his left-arm injury are both reasonable and necessary. Amaya v. Newberry’s 3N Mill, 102 Ark.App. 119, 126-27, 282 S.W.3d 269, 275 (2008). What treatment is reasonable and necessary under the terms of the statute is a question of fact for the Commission to decide. Id. at 127, 282 S.W.3d at 275.

As mentioned above, the District accepted Aylor’s left-arm injury as com-pensable and paid benefits. Dr. Nguyen ultimately performed a left-distal-biceps repair in October 2006. Aylor reached maximum medical improvement in January 2007, and Dr. Nguyen assigned him a 5% left-upper-extremity impairment rating. Even after he reached maximum medical improvement, Aylor continued to seek treatment from Dr. Nguyen. In an August 2007 note, Dr. Nguyen wrote that “[a]t this point I think he has some ... left biceps | r,tendinosis/partial tearing.” And in a September 2007 letter to a workers’ compensation specialist, Dr. Nguyen wrote, in regard to both of Aylor’s work injuries, that “[Aylor] will have flare-ups from time to time that require anti-inflam-matories and periodic resting.” Aylor started a new job at Home Depot in October 2007. But in April 2008, Aylor presented to Dr. Nguyen, who wrote that Aylor’s right-shoulder and left-arm problems had “flared up over the past month.” Dr. Nguyen made a similar notation in a June 2009 note, stating again that Aylor’s left-arm problems had “flared up over the past couple of months with severe excruciating pain running up to the left shoulder.”

“[W]hen an accidental injury aggravates a prior one, the one in whose employ the second injury occurs is liable for all of the consequences naturally flowing from that incident; and it is only when the employee suffers merely a recurrence of a former injury without an intervening cause that the employer at the time of the initial injury is liable for the recurring disability.” Bearden Lumber Co. v. Bond, 7 Ark.App. 65, 70, 644 S.W.2d 321, 324 (1983).

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2011 Ark. App. 173, 381 S.W.3d 895, 2011 Ark. App. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-school-district-v-aylor-arkctapp-2011.