Seawright v. Seawright Super Saver

Donald Corbin, Judge. The appellant, Katherene Seawright, appeals from a decision by the Arkansas Workers’ Compensation Commission dismissing her claim for benefits. The Commission held that the statute of limitations has run before the claim was filed with the Workers’ Compensation Commission. The appellant sustained a compensable injury on January 20, 1976, while employed by her husband at Seawright Super Saver. The insurance carrier paid a total of $782.00 to a chiropractor, Dr. Richard L. Byrd, for medical treatment rendered to the claimant between the date of the injury and July 8, 1977. No other benefits were paid by the carrier. On October 24, 1978, the Arkansas Workers’ Compensation Commission received its first notice of a claim for additional benefits in a letter from the appellant’s attorney dated October 20, 1978. This letter contained a copy of a letter from the appellant’s attorney dated June 23, 1978, which set out in detail the facts and circumstances surrounding appellant’s injury and the specific benefits being sought. The Commission responded to the notice of claim by letter dated October 27, 1978. It contained the following blind post script to the appellant’s attorney: “We have no record of receiving your 6/23/78 letter until receipt of your 10/20/78 letter.” David Fleming, an adjuster for the insurance company, testified that his first knowledge of a claim for additional benefits was receipt of notice of claim for benefits on October 26, 1978. The claimant offered proof of mailing to the Workers’ Compensation Commission a June 23, 1978, letter constituting the claim as well as a receipt of a copy of the same by the claimant. The administrative law judge found that the first notice of a claim for additional benefits was received by the Commission on October 24, 1978, but that the appellee insurance company was estopped from asserting the statute of limitations as a defense in this case. On appeal to the full Commission, the decision of the administrative law judge was reversed and the claim was dismissed as barred by the statute of limitations. Appellant raises five points for reversal. The first concerns the application of Ark. Stat. Ann. § 81-1318(b) (Repl. 1976) which provides: Additional compensation. In cases where compensation for disability 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. The burden to act within the period of limitations is placed upon the claimant and it is not an excuse to say it is the fault of the postal service or of the Commission that the filing was not effectuated. See Superior Federal Savings and Loan Association v. Shelby, 265 Ark. 599, 580 S.W. 2d 201 (1979). There is substantial evidence to support the Commission’s finding that appellant failed to file within the time prescribed. The evidence submitted by the appellant goes to the proof of mailing of the claim but not to the proof of filing. The Arkansas Supreme Court stated in McFall v. United States Tobacco Co., 246 Ark. 43, 436 S.W. 2d 838 (1969), that “... there simply is nothing in the law that permits us to extend the statute of limitations beyond the period fixed by statute.” If there is an inequity here it is better addressed by the Arkansas General Assembly. In Miller v. Everett, 252 Ark. 824, 481 S.W. 2d 335 (1972), the court said: “The statute of limitations applies with full force to the most meritorious claims, and the court cannot refuse to give the statute effect merely because it seems to operate harshly in a case involving an obviously meritorious claim.” The second point for reversal involves the question of whether the employer furnished medical services so as to toll the statute. No evidence was submitted on this issue so we decline to consider it. Appellant raises as a third point that the appellee insurance carrier should be estopped from raising the statute of limitations as a bar to appellant’s claim. There is nothing in the record to show that the appellee insurance carrier, because of something it had done or failed to do, caused the appellant to fail to timely file her claim with the Arkansas Workers’ Compensation Commission. See 28 Am. Jur. 2d Estoppel and Waiver § 27 at page 627. Appellant’s fourth point for reversal is that the Commission abused its discretion when it denied appellant’s motion to remand the case for further evidence. The appellant filed an affidavit on May 28, 1980, the date of the hearing before the full Commission. Rule 14 of the Arkansas Workers’ Compensation Commission provides in part: All oral evidence or documentary evidence shall be presented to the designated representative of the Commission at the initial hearing on a controverted claim, which evidence shall be stenographically reported. Each party shall present all evidence at the initial hearing. Further hearings for the purpose of introducing additional evidence will be granted only at the discretion of the hearing officer or Commission. We find that the Commission did not abuse its discretion. The affiant was present at the hearing before the administrative law judge on November 30, 1979, and could have presented her evidence at that time. Appellant’s fifth argument concerns the constitutionality of the application of Ark. Stat. Ann. § 81-1318(b) and is without merit. See Hagger v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W. 2d 1 (1946). Every requirement of due process was accorded the appellant pursuant to the provisions of Ark. Stat. Ann. § 81-1318 (b). We hold that there is substantial evidence to support the findings and decision of the Commission. Therefore we affirm. Affirmed. Cloninger, Glaze and Cooper, JJ., dissent.