Stewart v. Arkansas Glass Container

ELANA CUNNINGHAM WILLS, Associate Justice. |, This is an appeal from a decision of the Arkansas Workers’ Compensation Commission denying a claim for additional benefits filed by appellant Bobby Stewart. After the court of appeals rendered its opinion in this case on April 22, 2009, appellee Arkansas Glass Container petitioned for review on the grounds that the court of appeals’ opinion was in conflict with previous rulings of that court. This court granted the petition on October 1, 2009. Our jurisdiction is therefore proper pursuant to Ark. Sup.Ct. R. l-2(e) and 2-4(c)(ii). Stewart sustained an employment-related injury to his back on August 8, 2001. His employer, appellee Arkansas Glass Container, accepted the injury as compen-sable, and LStewart received temporary total-disability benefits until December 3, 2002. Arkansas Glass Container initially provided medical benefits, but controverted them after November 12, 2002. On December 6, 2002, Stewart sent a letter to the Workers’ Compensation Commission requesting a change of physician. The Commission approved his request for a change of physician on January 23, 2003, changing Stewart’s physician from Dr. Edward Cooper to Dr. William Hurst. Stewart last received medical treatment on June 19, 2003. Stewart next contacted the Commission on October 20, 2003, when he sent a letter “formally requesting a hearing before an Administrative Law Judge ... to address [Arkansas Glass Container’s] wrongful suspension of reasonable and related medical care.” In his “prehearing questionnaire,” Stewart asserted that the issue to be litigated was his “entitlement to additional reasonable and related medical benefits.” A hearing was then held on March 19, 2004, before Administrative Law Judge (ALJ) Andrew Blood, who issued an opinion on June 28, 2004, finding that Stewart was entitled to additional medical treatment. At the conclusion of his opinion, ALJ Blood stated that “[m]atters not addressed herein are expressly reserved.” Arkansas Glass Container appealed Judge Blood’s opinion to the full Commission, which entered an opinion and order on December 15, 2004, finding that Stewart did not prove he was entitled to additional medical treatment and thus reversing the ALJ’s opinion. The Commission thus “den[ied] and dismissfed] Stewart’s claim.” Stewart appealed the Commission’s decision to the court of appeals, which affirmed the Commission. Stewart v. Ark. Glass Container, CA05-363, 2005 WL 3065876 (Ark.App. Nov. 16, 2005) (unpublished). The court of appeals’ mandate was filed on December 7, 2005. On December 21, 2005, Stewart sent another letter to the Commission asking it to “[p]lease consider this letter as a claim for additional benefits.” On January 13, 2006, Stewart sent another letter to the Commission asking for his case to be assigned to an ALJ and to have a hearing scheduled “on the issues of compensability, temporary disability, medical expenses, controversion, and attorney’s fees.” On February 7, 2006, ALJ Blood sent counsel a letter confirming that Stewart had withdrawn his request for a hearing. The letter also noted that the file did not reflect the presence of a Form AR-C regarding the most recent hearing request and stated that the file was being returned to the Commission’s general-files section. Stewart wrote to ALJ Blood on March 2, 2006, renewing his request for a hearing. In this letter, Stewart contended that surgery he had undergone after the initial ALJ opinion, but before the reversal by the full Commission, demonstrated his entitlement to additional benefits, including “additional temporary disability, additional medical benefits, permanent impairment benefits when received, and wage loss benefits up to and including permanent and total disability.” Stewart further stated that he understood that he could file a claim for additional benefits for up to one year from the “final order ending litigation of the first claim for additional benefits” based upon this “new evidence.” In response, Arkansas Glass Container urged that Stewart’s claims were barred by the statute of limitations because he had not requested additional benefits within one year of the last benefit provided to him. |tALJ Blood issued an opinion on April 3, 2008, finding that Stewart’s present claim for additional benefits was not barred by the statute of limitations. The ALJ first noted that, from the date of the October 20, 2003 hearing request on the issue of “wrongful suspension of reasonable and related medical care” until the December 7, 2005 mandate from the court of appeals, Stewart’s claim was in litigation. The ALJ further stated that the sole issue before the Commission at the time of the March 19, 2004 hearing was a claim for additional medical benefits, and issues regarding permanent physical impairment and wage loss were not addressed at that time because they were not ripe. In addition, the ALJ noted that all other issues had been “specifically reserved” in the June 28, 2004 ruling. The ALJ concluded that this express reservation included “the issues of temporary total disability, permanent physical impairment, and wage loss,” such that these issues were not barred by the statute of limitations. Arkansas Glass Container again appealed the ALJ’s decision to the full Commission, which reversed the ALJ’s opinion on August 18, 2008, finding that the “present claim for additional benefits was not timely filed” and was thus barred by the statute of limitations. The Commission noted that, although the ALJ had relied on the “specifically reserved” language in its March 2004 opinion, nothing in the prehearing order and hearing notices or the June 28, 2004 opinion filed by the ALJ revealed that the parties ever reserved any additional issues, either implicitly or explicitly. The Commission continued: At best, the Administrative Law Judge stated in the final sentence of his Award that “Matters not addressed herein are expressly reserved.” As the only request for benefits |5before the Commission at that time was whether the claimant was entitled to additional medical treatment was fully addressed and disposed of, there were no other matters pending before the Commission to reserve. The Administrative Law Judge had no authority to reserve issues that had yet to be raised. Moreover, the decision of the Administrative Law Judge was reversed by the Full Commission. Accordingly, whether it reserved any additional issues became moot when the opinion was not affirmed. The Commission stated that there was “no question” that Stewart had not filed an initial claim for compensation because Arkansas Glass Container had accepted the claim as compensable. In addition, the Commission noted that it was undisputed that Stewart had never filed a Form AR-C officially requesting benefits, and his only requests of the Commission had come through correspondence from his attorneys. Stewart’s last benefits were received on June 19, 2003, and he did not inquire about additional benefits until his December 21, 2005 letter advising that it was a claim for unspecified “additional benefits.” Thus, because Stewart’s claim for additional compensation was not filed within one year from the date of the last payment of compensation or two years from the date of injury, the Commission concluded that Stewart’s claim was time-barred by Arkansas Code Annotated section 11 — 9—702(b)(1) (Repl.2002). Stewart appealed the Commission’s opinion to the court of appeals, which reversed the Commission. Stewart v. Ark. Glass Container, 2009 Ark.App. 300, 307 S.W.3d 614. The court framed the issue as whether the tolling of the statute of limitations was claim-specific or benefit-specific. Id. at 4, 307 S.W.3d 614. The court stated that, until Stewart’s March 2004 hearing for “additional medical benefits” was finally adjudicated and resolved by the court of appeals’ |fiDecember 6, 2005 mandate, “he could not have known what other additional benefits he was due, or the extent of his disability and resulting impairment.” Id. Thus, the court concluded that Stewart’s “timely request for ‘additional medical benefits’ tolled the statute of limitations until the claim was finally and completely litigated, not only on the general medical-benefit claim but on all benefits that might flow from that specific request.” Id. at 5, 307 S.W.3d 614. Arkansas Glass Container filed a petition for review from the court of appeals’ decision, which this court granted. When we grant review of a decision by the court of appeals, we review the case as though the appeal was originally filed in this court. See Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008); Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000). In this appeal, we must construe and apply Arkansas Code Annotated section 11-9-702 (Repl.2002). The question of the correct interpretation and application of an Arkansas statute is a question of law, which we decide de novo. Honeysuckle v. Curtis H. Stout, Inc., 2009 Ark. App. 696, — S.W.3d -, 2009 WL 3378528. It is for this court to decide what a statute means, and we are not bound by the circuit court’s interpretation. Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008). When we construe the workers’ compensation statutes, however, we must strictly construe them. Id.; Ark. Code Ann. § ll-9-704(c)(3) (Repl.2002). Strict construction is narrow construction and requires that nothing be taken as intended that is not clearly expressed. Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). The 17doctrine of strict construction requires this court to use the plain meaning of the language employed. Id. At issue in the present case is whether Stewart filed a timely request for additional compensation. It is the claimant’s burden to prove that he acted within the time allowed for filing a claim for additional compensation. Kent v. Single Source Transp., 103 Ark.App. 151, 287 S.W.3d 619 (2008). The time limitations for requesting additional workers’ compensation benefits are set out in Arkansas Code Annotated section 11-9-702 (Repl. 2002), which provides, in pertinent part, as follows: (b) Time for filing additional compensation. (1) 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. [[Image here]] (e) A claim for additional compensation must specifically state that it is a claim for additional compensation. Documents which do not specifically request additional benefits shall not be considered a claim for additional compensation. (Emphasis added.) Thus, absent some action that tolled the statute of limitations, Stewart’s claim for additional compensation had to be filed within one year of June 19, 2003 (the date of the last receipt of medical benefits) or two years from August 8, 2001 (the date of injury). Citing Spencer v. Stone Container Corp., 72 Ark.App. 450, 38 S.W.3d 909 (2001), Stewart suggests that his December 6, 2002 request for a change of physician “was obviously a request for not only further medical care but also encompassed additional benefits for | ^disability, such as TTD, a permanent impairment rating, and perhaps wage-loss benefits.” 1 In Spencer, supra, the court of appeals held that it is “axiomatic that when a claimant makes a proper request for a change of physician, she is seeking compensation benefits in addition to that which she has either been awarded or otherwise provided. Therefore, ... such a request can constitute a claim for additional compensation and toll the statute.” Spencer, 72 Ark.App. at 454, 38 S.W.3d at 911. The record before us does not reflect that Stewart raised this argument below, however, and he thus may not obtain a reversal by advancing it on appeal.2 See Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cos., 366 Ark. 297, 235 S.W.3d 499 (2006) (when an issue was not raised below, it is not preserved for appellate review). Stewart also attempts to distinguish Barnes v. Fort Smith Public Schools, 95 Ark.App. 248, 235 S.W.3d 905 (2006), and Eskola v. Little Rock School District, 93 Ark.App. 250, 218 S.W.3d 372 (2005), cases on which Arkansas Glass Container relied below, in support of his argument that the statute of limitations was tolled. In Barnes, supra, the court of appeals held that “[w]hen a claimant files a timely request for additional benefits that is never acted upon, the statute of limitations is tolled.” Barnes, 95 Ark.App. at 251, 235 S.W.3d at 906 (emphasis added). In that case, Barnes suffered a compensa-ble injury in October 2000. Her employer, the Fort Smith Public Schools, paid benefits until December 2000, when it denied her entitlement to any further compensation. Barnes requested a hearing in 2001 on her entitlement to temporary total-disability (TTD) benefits. The ALJ found she had not met her burden of proof, and the Commission affirmed. Barnes did not appeal that decision. Id. at 250, 235 S.W.3d at 906. Barnes filed a claim for additional TTD benefits in November 2004. The ALJ and the Commission found that her claim was barred by the statute of limitations. On appeal, she argued that her 2001 claim tolled the statute of limitations, citing Spencer v. Stone Container, supra. The court of appeals held that her reliance on Spencer was misplaced because in Spencer, there had been a timely request for additional compensation that had never been acted upon, “which effectively tolled the statute of limitations with regard to that claim.” Id. |inat 251, 235 S.W.3d at 907 (emphasis added). Barnes’s initial claim for additional benefits was acted upon, however, and therefore, the statute of limitations was not tolled by the 2001 claim. Thus, her 2004 claim was filed outside of the statute and was time-barred. Id. at 251, 235 S.W.3d at 907. In Eskola, 93 Ark.App. 250, 218 S.W.3d 372, the claimant suffered a compensable injury in September 1998 and filed a claim in June 1999. On the claim form, Eskola checked both the “initial benefits” and the “additional benefits” boxes, even though he had not yet received any benefits at the time he filled out the form. Although his treating physician recommended surgery to repair his injury, his last payment of compensation occurred in May 2000, and Eskola did not have the surgery until 2003. Eskola, 93 Ark.App. at 251, 218 S.W.3d at 373. When Eskola sought additional benefits to cover the surgery in May 2003, the ALJ and Commission found that his claim was barred by the statute of limitations. On appeal to the court of appeals, Eskola cited Spencer v. Stone Container Corp., supra, and argued that the statute was tolled when a benefit claim was filed before the expiration of two years from the date of injury and remained tolled unless a dismissal was obtained. Id. The court of appeals rejected his argument, distinguishing Spencer on the basis that the appellant there “made a timely request for additional compensation that was never acted upon, which effectively tolled the statute of limitations with regard to that claim.” Id. at 252-53, 218 S.W.3d at 374 (emphasis added). Inin the present case, Stewart argues that his December 2002 request for a change of physician was a request for additional benefits that tolled the statute of limitations. As already noted, Stewart cannot prevail on that argument. See n. 2, supra. In addition, Barnes, relying on Eskola, held that where a request for additional benefits is not acted upon, the statute is tolled. Stewart’s request was acted upon when his request for medical benefits was heard and ultimately denied; therefore, under Barnes, that request did not toll the statute of limitations. Stewart also attempts to distinguish Barnes on the grounds that, “in that case, the request for additional benefits was not the same kind of benefits initially denied,” and here, he urges that he is seeking benefits different than those that were denied in the original proceedings. Both Barnes and Eskola noted, however, that a request for additional compensation that is not acted on only tolls the statute of limitations with respect to that particular claim. Stewart’s earlier requests for medical benefits thus could not, under Barnes and Eskola, supra, toll the statute of limitations for all other claims for benefits that were not requested at that time. Accordingly, Stewart’s December 2005 claim for additional benefits — which he alleged included temporary total disability, contr-oversion, and attorneys’ fees — was untimely. Stewart next argues that the ALJ’s statement in the June 28, 2004 order that all other issues were “expressly reserved” was sufficient to toll the statute of limitations as to all matters other than those addressed in that order. Because no issues other than medical expenses were raised and decided in that order, Stewart urges that all other claims for benefits, such as | ^disability payments, were not acted upon and the statute of limitations was therefore tolled as to those claims. We cannot agree with this contention. Although the ALJ “expressly reserved” all matters not addressed in the opinion, the Commission reversed the ALJ’s opinion, finding that Stewart had not met his burden of proving he was entitled to additional medical benefits, and dismissed Stewart’s claim in its entirety. Stewart cites no authority for his proposition that undefined claims purportedly “reserved” by a lower tribunal can somehow satisfy his burden to prove that he made a timely request for additional compensation for purposes of the statute of limitations in section ll-9-702(b). Stewart nonetheless argues that, because the ALJ reserved “other claims,” there “obviously” had to be other issues, such as disability benefits, to which the ALJ was referring. In addition, he argues that, because the only claims “dismissed” by the Commission were his claims for additional medical benefits, the Commission could not have dismissed any future claims for additional benefits, such as disability. Again, though, he cites no authority for this proposition, and he concedes that there appears to be no authority concerning the effect of “reserving” issues in a hearing before an ALJ. Stewart’s situation is unlike that presented in VanWagner v. Wal-Mart Stores, Inc., 95 Ark.App. 173, 234 S.W.3d 893 (2006). There, the employee’s first claim for additional benefits included requests for several kinds of benefits, including temporary total disability, additional permanent partial disability, additional medical expenses, and attorney’s fees. The | lsparties specifically agreed not to litigate the issue of permanent partial-disability (PPD) benefits. When the employee later sought a hearing on the PPD benefits, her employer argued that her claim was time-barred. The court of appeals disagreed, holding that, because the claim for PPD benefits had never been litigated or adjudicated, it was still pending and thus tolled the statute of limitations. In the present case, on the other hand, there were no specific claims for benefits that were excluded from ■ consideration at the time of the ALJ’s first order. Because there was nothing outstanding after that claim for additional medical benefits was first granted by the ALJ, then denied and dismissed by the Commission, there was no outstanding portion of that request that could have been “reserved” to toll the statute.3 In sum, this court is to strictly construe the workers’ compensation statutes, see Ark.Code Ann. § ll-9-704(c)(S) (Repl. 2002), and strict construction requires that nothing be taken as intended that is not clearly expressed. Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). Section 11-9-702(b) states that a claim for additional benefits must be 114made within one year of the date of the last payment of compensation (here, June 19, 2003) or two years from the date of injury (August 8, 2001), whichever is greater, or the claim will be barred. Because he failed to do so within the time allowed by section 11-9-702(b), the Commission correctly determined that his December 21, 2005 request for additional benefits was time-barred.4 Workers’ Compensation Commission affirmed; court of appeals reversed. HANNAH, C.J., and CORBIN and SHEFFIELD, JJ., dissent. Footnotes [1] In its entirety, that letter read as follows: Please indicate Bristow & Richardson, PLLC, as attorney of record in the above-referenced claim. On behalf of Mr. Stewart, I am formally requesting a change of physician from R. Edward Cooper, Mr., M.D. of Jonesboro, Arkansas, to Kenneth Tonymon, M.D. of Jonesboro, Arkansas. Please let me know if anything further is required to perfect this request. Thank you for your assistance in this matter. [2] Stewart’s reliance on Spencer, supra, is misplaced in any event. The appellant in that case, Blandina Spencer, sustained a compen-sable injury in September 1991; therefore, her injuries were governed by the pre-Act 796 version of the Workers’ Compensation Act. See Acts 1993, No. 796, § 41 (”[T]he provisions of this act shall apply only to injuries which occur after July 1, 1993.”); Tackett v. Crain Auto., 321 Ark. 36, 37, 899 S.W.2d 839, 839 (1995). Prior to the 1993 amendments, Arkansas Code Annotated section 11-9-702 did not contain the present subsection (c), which declares that "[djocuments which do not specifically request additional benefits shall not be considered a claim for additional compensation.” Ark.Code Ann. § 11-9-702(c) (Repl.2002). Thus, to the extent that Stewart cites Spencer for its statement that a request for a change of physician can constitute a claim for additional compensation, that case is no longer instructive or controlling. [3] We briefly address Stewart’s suggestion that Arkansas Code Annotated section 11-9-713 (Repl.2002) might have been utilized to modify the final award of benefits, had the Commission only given him an opportunity to show a change in his physical condition. That statute provides that the Commission may review any compensation order, award or decision "at any time within six (6) months of termination of the compensation period fixed in the original compensation order or award ... on the ground of a change in physical condition” and may "make an order or award terminating, continuing, decreasing, or increasing for the future the compensation previously awarded.” Ark.Code Ann. § 11-9-713(a)(1) — (3) (Repl.2002). Stewart's request for additional benefits was denied, however; thus, this statute is not applicable because no benefits have been "awarded.” [4] Arkansas Code Annotated section 11-9-1001 (Repl.2002) declares that if "such things as the statute of limitations ... need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by ... the courts.”