Gibson Greetings, Inc. and Lumbermen's Mutual Casualty Company v. Shelly Cooper

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

GIBSON GREETINGS, INC. AND

LUMBERMEN'S MUTUAL

CASUALTY COMPANY

APPELLANTS

V.

SHELLY COOPER

APPELLEE

CA 00-701

January 31, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [E518275]

REVERSED AND DISMISSED

The sole issue in this case is whether appellee's claim for additional medical benefits is barred by the statute of limitations. Appellee, Shelly Cooper, sustained an admittedly compensable right-arm injury on June 26, 1995. The last date of treatment for this injury was March 13, 1996; appellee has not received any further medical attention for her right arm since that time. On January 7, 1997, at appellants' request and over appellee's objection, Administrative Law Judge Michael White dismissed the case without prejudice on the basis that there was no justifiable controversy to litigate at that time.

On June 11, 1998, appellee contacted ALJ White requesting a hearing on a purportedly unpaid $848.00 medical bill incurred in December 1995 while she was receiving treatment for her compensable injury. On February 3, 1999, ALJ Linda Marshall entered an orderfinding that appellants were responsible for this bill. Appellants did not appeal from this ruling because, subsequent to the ruling, it was determined that the bill had in fact already been paid on October 28, 1996, in a different amount pursuant to a medical fee schedule.

On April 28, 1999, appellee filed a claim seeking additional medical treatment for her injury. Appellants argued that the statute of limitations found in Ark. Code Ann. § 11-9-702(b) (Repl. 1996) barred this claim. ALJ Marshall determined that the claim was barred by the statute of limitations, but the Commission reversed that decision. The Commission erred in finding that appellee's claim was not barred by the statute of limitations; accordingly, we reverse and dismiss this case.

Arkansas Code Annotated section 11-9-702(b)(1) (Repl. 1996) provides:

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 injury, whichever is greater.

To determine what limitations period is applicable in this case, it must be ascertained which period is greater. Appellee's injury occurred on June 26, 1995; therefore, two years from the date of injury was June 26, 1997.

We must also determine the date of the period ending one year from the date of the last payment of compensation. To determine this time frame, we must look at the definition of the "date of the last payment of compensation." In Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994), our supreme court held:

It is well-settled that the furnishing of medical services constitutes "payment of compensation" within the meaning of the limitations statute and that such payment of compensation or furnishing of medical services tolls the running of the time for filing a claim for additional compensation. The one-year limitations period begins to run from the last payment of compensation, which this court has held means from the date of the last furnishing of medical services.

319 Ark. at 129, 890 S.W.2d at 255 (citations omitted).

In Heflin v. Pepsi Cola, 244 Ark. 195, 424 S.W.2d 365 (1968), one of the cases relied upon in Plante, the supreme court held that a claimant is "compensated" by the furnishing of the medical services, not the payment of the charges, and that it is the furnishing of the medical services that tolls the statute of limitations, not the time at which the medical bills are paid. "It is obvious that when the statute is tolled by the actual furnishing of services, . . . , the statute is not tolled again when the services are paid for. One transaction cannot interrupt the statute twice." Mohawk Rubber Co. v. Thompson, 265 Ark. 16, 18, 576 S.W.2d 216, 217 (1979).

Applying the above precedent, it is clear that the February 3, 1999, decision ordering payment for the medical treatment appellee received in December 1995 does not constitute "payment of compensation." To determine the applicable statute of limitations, we must look at the date of the last payment of compensation, which was the last day appellee received medical treatment for her injury. It is undisputed that appellee last received medical treatment for her compensable injury on March 13, 1996; one year from that date was March 13, 1997. The greater of the two periods of limitation is two years from the injury, or June 26,1997. Appellee's claim for additional compensation was not filed until April 28, 1999; therefore, it was not timely filed, and her claim is now barred.

Reversed and dismissed.

Bird and Vaught, JJ., agree.