Eddie L. Patterson v. Mitchell Machinery Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOSEPHINE LINKER HART, JUDGE

DIVISION I

EDDIE L. PATTERSON

APPELLANT

V.

MITCHELL MACHINERY COMPANY

APPELLEE

CA00-605

April 25, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. E505329]

AFFIRMED

Eddie L. Patterson appeals a decision of the Arkansas Workers' Compensation Commission that both affirmed and adopted as the decision of the full Commission the Administrative Law Judge's findings and conclusions therein. The A.L.J. denied benefits and ruled that appellant's April 16, 1998, claim for additional compensation was barred by the statute of limitations. We affirm.

For reversal, appellant argues that the statute of limitations did not bar his claim for additional compensation. Specifically, appellant makes the following arguments: (1) the Commission erred by requiring him to prove that the medical treatment he received in August of 1997, was reasonably necessary in connection with his job-related injury; and (2) the Commission erred by requiring that he, instead of appellee, prove that a payment to Dr. Lowery Barnes was made because in doing so the Commission shifted to appellant the burden of proving that his claim was not barred by the statute of limitations.

With regard to the first issue raised by appellant, we conclude that the Commission reached the right result, and therefore, affirm. We, however, decline to address appellant's second point on appeal. While it is axiomatic that the burden of going forward with the proof rests with the party pleading the affirmative defense (appellee in this case), we are precluded from addressing this issue on appeal because appellant did not object or raise the issue before the A.L.J.

On March 24, 1995, appellant suffered a compensable injury to his knee when he exited a forklift. Mitchell Machinery Company paid some benefits for medical services that were furnished from the date of the injury until April 12, 1996. Although Federated Mutual notified appellant that no further claims would be paid, appellant continued to see his treating physician. On November 18, 1997, appellant's claim was dismissed without prejudice, and, consequently, appellant refiled his claim on April 16, 1998, seeking additional compensation. The A.L.J., however, dismissed his claim, reasoning that it was barred by the one-year statute of limitations found in Ark. Code Ann. § 11-9-702(b)(1) (Repl. 1996), and also concluded that even if the claim was not time-barred, then the medical services received were not reasonably necessary in connection with the injury sustained. From the full Commission's decision, which affirmed and adopted the A.L.J.'s findings and conclusions, comes this appeal. On review, we affirm if the Commission's decision is supported by substantial evidence. See Ark. Code Ann. § 11-9-711(b)(4)(D) (Repl. 1996). A Commission's decision is supported by substantial evidence if reasonable minds could have reached the same conclusion. E.g., Spencer v. Stone Container Corp., 72 Ark. App. 450, 453, ____ S.W.3d ____, ____ (2001) (citations omitted).

Pursuant to Ark. Code Ann. § 11-9-702(b)(1), claims for additional compensation must be filed within the following periods of time:

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 date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.

Moreover, as we recently stated in Spencer, 72 Ark. App. at 456, ____ S.W.3d at ____:

Our oft-stated rule is that for purposes of the aforementioned statute of limitations, "the furnishing of medical services constitutes payment of compensation . . . ." Heflin v. Pepsi Cola, 244 Ark. 195, 197, 424 S.W.2d 365, 366 (1968). Moreover, an employer is deemed to be furnishing such services if it has either actual notice or has reason to know of a claimant receiving medical treatment. See Plante v. Tyson Foods, Inc. 319 Ark. 126, 131, 890 S.W.2d 253, 255-256 (1994) . . . . To successfully toll the statute of limitations, however, the furnished services must be reasonably necessary in connection with the injury received. See Northwest Tire Serv. v. Evans, 295 Ark. 246, 748 S.W.2d 134 (1988). In spite of these well-settled principles, an employer does not have the burden of determining whether medical treatments are continuing; to the contrary, the burden remains with the claimant "to act within the time allowed." Superior Fed. Sav. & Loan v. Shelby, 265 Ark. 599, 601, 580 S.W.2d 201, 203 (1979).

We affirm the Commission's decision because we conclude that it is supported by substantial evidence. The abstract reveals that the last time appellant was furnished with medical services that were reasonably necessary in connection with the injury received was March 5, 1997.1 We disagree with appellee's ostensible position that it was not furnishingmedical services simply because it had informed appellant that it was no longer going to pay for his treatments. As we stated in Spencer, the payment-of-compensation requirement for tolling the limitations statute is satisfied when a claimant is furnished medical services that are reasonably necessary in connection with the injury received and the employer either has actual notice or has a reason to know that claimant is receiving medical services. We affirm the Commission's decision because appellant failed to establish that he received medical services that were reasonably necessary in connection with his compensable injury to relieve symptoms arising from his compensable injury after March 5, 1997.

Similarly, we disagree with appellant's contention that the limitations statute is tolled by simply demonstrating that appellee made a payment. Accordingly, it is insufficient to simply provide an account-claim detail that merely states the time of visit, cost of visit, and the party paying for the visit because such documentation fails to demonstrate whether the medical services received were reasonably necessary in connection with the injury received. Appellant submitted one exhibit of an account claim showing a last visit of August 6, 1997, that reflected payment; however, he failed to provide medical testimony or copies of the medical records, which would demonstrate that the treatment received was of such a nature to toll the statute of limitations.

We, accordingly, conclude that the Commission's decision is supported by substantial evidence because appellant's claim for additional compensation was filed on April 16, 1998, which was more than one year after the date the medical record establishes that the appellantwas furnished medical service that was reasonable and necessary in connection with his compensable injury. Finally, inasmuch as we have determined that appellant's claim for additional compensation was barred, we do not reach the question of whether the claim for additional compensation is reasonably necessary in connection with his compensable injury. Affirmed.

STROUD, C.J., agrees.

PITTMAN, J., concurs.

John Mauzy Pittman, Judge, concurring. I concur in the decision to affirm this case. However, I express no opinion on the merits of the issues because appellant failed to include the substance of the order appealed from in either the abstract or the addendum to his brief. Rule 4-2(a)(8) of the Rules of the Arkansas Supreme Court and Court of Appeals clearly provides that an appellant's brief must contain an addendum that "shall include photocopies of the order, judgment, decree, ruling, or letter opinion, or administrative law judge's opinion, from which the appeal is taken." We do not review the record de novo in workers' compensation appeals; we review the findings and conclusions of the Commission. Because the Commission in this case adopted as its own the administrative law judge's opinion, thereby effectively making the ALJ's opinion the order appealed from, we must have the ALJ's opinion before us. However, appellant's addendum contains only the Commission's summary order adopting the ALJ's opinion. While his abstract does mention the ALJ's eleven-page opinion, the abstracted version contains just two sentences regarding stipulations unrelated to the issues on appeal and two sentences stating, in narrative form, the ALJ's ultimate legal conclusions. This is simply insufficient to allow us to decide theissues on appeal.

1 Despite the A.L.J.'s conclusion that the "medical report fails to reflect that any treatment was provided" on March 5, 1997, the abstracted progress notes dated that date state that "[appellant] returns for re-evaluation. Still having symptoms. Mainly medical joint line pain. Brace is working well for him. Markedly tender over his medical joint line. I have suggested he use his Arthroflex. He is having a difficult time affording this." Such an examination could be considered as medical services under Ark. Code Ann. § 11-9-508(a) (Repl. 1996), inasmuch as it was an examination that was "reasonable andnecessary to determine the proper course of treatment . . . ." 100 C.J.S. Workers' Compensation § 494 (2000).