Kirk v. Cent. States Mfg., Inc.

2017 Ark. App. 519

• Court: Court of Appeals of Arkansas
• Decided: October 4, 2017
• Docket: CV-17-155
• Status: Published

Opinion

Cite as 2017 Ark. App. 519

ARKANSAS COURT OF APPEALS DIVISION III No. CV-17-155

JOHN KIRK Opinion Delivered: October 4, 2017 APPELLANT APPEAL FROM THE ARKANSAS V. WORKERS’ COMPENSATION COMMISSION CENTRAL STATES [NO. F706889] MANUFACTURING, INC; LIBERTY MUTUAL GROUP; AND DEATH AND PERMANENT TOTAL DISABILITY SUPPLEMENTATION OF THE TRUST FUND RECORD AND REBRIEFING APPELLEES ORDERED

WAYMOND M. BROWN, Judge

Appellant appeals from the Arkansas Workers’ Compensation Commission’s

(Commission) January 12, 2017 opinion affirming and adopting the July 11, 2016 opinion

of the administrative law judge (ALJ) denying his claim on finding that the statute of

limitations had run in the matter and that he had failed to prove that he was entitled to any

additional indemnity benefits. On appeal, appellant argues (1) that the Commission erred in

finding that his claim for additional indemnity benefits was barred by the applicable statute

of limitations and (2) that the Flores v. Walmart Distribution interpretation of the statute of

limitations is not strict construction, and is therefore contrary to legislative intent. 1 We are

unable to address the merits of appellant’s argument and hereby order supplementation of

the record and rebriefing.

1 2012 Ark. App. 201. Cite as 2017 Ark. App. 519

Appellant provided the only testimony at the hearing before the ALJ. He testified

that he was injured on July 25, 2006. He received temporary total disability benefits through

October 15, 2007, and received medical treatment, including surgery with Dr. Blankenship,

after which he returned to work. In 2013, while working for Central States Manufacturing,

Inc. (Central States), in South Dakota, he started experiencing increased pain, which he

reported to Central States. Central States “forced [him] to go through a process with the

Workers’ Compensation Commission,” in which he eventually returned to the care of Dr.

Blankenship, who removed him from work and performed a second surgery. Following the

surgery, he attempted to return to work under “partial day and limited activity restrictions”

in 2014, but his pain increased despite being limited to four-hour work days. He returned

to Dr. Blankenship, who again removed him from work, and then Central States fired him,

saying that he was “no longer needed.” Central States stopped paying indemnity benefits

when it fired him, though it had resumed doing so after his second surgery.

Appellant testified that “[t]here was a period of about five years that [he] did not

receive any type of indemnity benefit, only medical”; he thought the gap was between 2007

and 2012. He was not sent or asked about, and he did not ask for, any indemnity benefits

during that time. He never made a written claim for indemnity benefits and did not request

them before hiring an attorney. He stated that he “never saw a need to request additional

benefits; [he] did not know it was an option.” Following appellant’s testimony, both

appellant and Central States rested, after which the ALJ ordered briefs from both, noting

that he “particularly want[ed] the statue of limitations’ [sic] issue” addressed in the briefs.

2 Cite as 2017 Ark. App. 519

Arkansas Code Annotated section 11-9-711(b)(1)(A) provides that, after a notice of

appeal is filed with the Commission, “the commission under its certificate shall send to the

court all pertinent documents and papers, together with a transcript of evidence and the

findings and orders, which shall become the record of the cause.” 2 Appellant provided the

only live testimony at the hearing. Neither appellant nor Central States provided a closing

argument to the ALJ, with both resting after appellant’s testimony. The record lodged with

our court does not contain either of the parties’ briefs. Without the briefs submitted to the

ALJ, this court is not able to ascertain whether appellant’s arguments were raised below or

whether they remain in the scope and nature of what they were below. Arkansas Rule of

Appellate Procedure–Civil 6(e) states that the appellate court, on its own initiative, may

direct that the omission or misstatement of anything material shall be corrected, and if

necessary, that a supplemental record be certified and transmitted. 3 Therefore, we remand

to the Commission to supplement the record to include the parties’ briefs.

The briefs are also absent from the addendum, though necessary for the above-

referenced reasons. Arkansas Supreme Court Rule 4-2(a)(8) states that “[t]he addendum

shall contain true and legible copies of the non-transcript documents in the record on appeal

that are essential for the appellate court to confirm its jurisdiction, to understand the case,

and to decide the issues on appeal.”

2 (Repl. 2012). 3 (2016).

3 Cite as 2017 Ark. App. 519

Additionally, Arkansas Supreme Court Rule 4-2(a)(5) states that “[t]he appellant shall

create an abstract or abridgment of the transcript that consists of an impartial condensation

of only such material parts of the testimony of the witnesses and colloquies between the

court and counsel and other parties as are necessary to an understanding of all questions

presented to the court for decision.” 4 No more than one page of a transcript shall be

abstracted without giving a record page reference. 5 Appellant’s method of summarization

fails to cover all testimony and excludes pages from being abstracted at all.

Because of these deficiencies, we hereby order rebriefing and direct appellant to file

a substituted brief that complies with our rules. Appellant shall have fifteen days from the

date the supplemental record is submitted to file a substituted abstract, brief, and addendum

that complies with the rules. See Ark. Sup. Ct. R. 4-2(b)(3). We also encourage counsel to

carefully review our rules to ensure that all material information is contained in the record

and addendum.

Supplementation of the record and rebriefing ordered.

GRUBER, C.J., and WHITEAKER, J., agree.

Taylor Law Partners, LLP, by: Jason L. Watson, for appellant.

Zachary F. Ryburn, for appellees.

4 (2016). 5 Ark. Sup. Ct. R. 4-2(a)(5)(B).