Garrett v. Sears

Judith Rogers, Judge. This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant’s claim for additional benefits for a 1987 injury is barred by the statute of limitations; that the issue of temporary partial benefits was not raised below; and that appellant failed to prove he is permanently partially disabled. On appeal, appellant contends that the statute of limitations was tolled for his 1987 compensable injury; that the issue of temporary partial benefits was a matter in evidence; and that he is entitled to a 5% permanent partial disability rating related to his compensable injuries. The record reflects that appellant injured his back on September 2, 1987, in the course and scope of his employment with appellee while moving a television set. Appellant received temporary total and medical benefits. Appellant returned to light duty work on September 28, 1987, and continued to receive his regular salary. Around September 3, 1990, appellant was informed that he would be receiving a reduction in pay in the amount of ninety cents an hour. That same day, appellant sustained an injury to his shoulder area when he was moving a scrubber. Two days later, while at home, appellant bent over to pick up his paper and his lower back “popped”. He was taken to the emergency room. Appellant received temporary total and medical benefits and returned to work after a couple of weeks at which time he was trained as a sales clerk. This job change resulted in a decrease in his previous salary by an amount of $1.13. Appellant filed this claim with the administrative law judge, and the ALJ found that the statute of limitations did not bar claims stemming from his 1987 injury, that appellant was entitled to temporary partial benefits from September 2, 1987, through January 1991, “for the periods of time that appellant was receiving less than his previous salary”, and that appellant did not prove he was permanently disabled. The Commission reversed the ALJ on the first two points and affirmed on the last. When reviewing a decision of the Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Welch’s Laundry and Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Quality Service Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991). First, appellant contends that the statute of limitations for additional medical benefits had not expired with regard to his 1987 injury. Under Ark. Code Ann. § 11-9-702(b) (1987), the time for filing a claim for additional compensation “shall be barred unless filed with the Commission within (1) one year from the date of the last payment of compensation, or (2) two years from the date of the injury, whichever is greater.” The record indicates that appellant’s last medical service for his 1987 injury was on January 23, 1989. Therefore, by the time appellant presented this claim for additional benefits in April of 1991, the statute of limitations had run on the 1987 injury. Appellant argues, however, that his attorney’s letter of June 13, 1989, amounted to a claim for additional benefits, thereby tolling the statute of limitations on his 1987 compensable injury. Appellant cites Cook v. Southwestern Bell Telephone Co., 21 Ark. App. 29, 727 S.W.2d 862 (1987), in support of his argument. The Commission found no merit in appellant’s argument. The Commission specifically stated in its opinion that the letter dated June 13, 1989, did not serve as the filing of a claim and that, unlike the letter in Cook, it was not sufficient to toll the statute of limitations. The Commission found that “at no point did [appellant’s] attorney indicate that any benefits were not being received. To the contrary, she specifically indicates that she is not requesting a hearing because [appellant’s] medical bills were being paid.” The Commission thus concluded that appellant’s counsel was simply giving notice that she wanted to be recognized as the attorney of record and that no claim was being presented at that time since there was no present conflict over the receipt of benefits. In Cook, we held that the appellant’s counsel’s letter represented a claim for additional medical benefits so as to toll the statute of limitations for additional medical benefits. The letter notified the Commission within the two year statute of limitations that he had been employed to assist the appellant in connection with unpaid benefits, and it listed the appellant’s name, the employer’s name, and the Workers’ Compensation Commission’s file number. However, we find Cook distinguishable. In this case, appellant’s counsel’s letter stated: Please be advised my law firm has been retained by the above referenced injured worker in regards to a back injury sustained on the above date. Please note my name is the attorney of record in regards to this matter. Please also be advised that I am not requesting a hearing at this time since it appears that Mr. Garrett’s medical is being is paid. We agree with the Commission’s assessment and comparison of these facts in relation to the case of Cook. Consequently, we cannot say there is no substantial evidence to support the Commission’s finding that appellant was barred by the statute of limitations from receiving further benefits connected with his 1987 back injury. As his second point, appellant contests the Commission’s finding that he is not entitled to temporary partial disability benefits. The Commission found that this issue was not before the ALJ, that the ALJ had raised the issue on his own and that he had resorted to matters outside the record in reaching that decision. We disagree with the Commission’s conclusion. The ALJ found that appellant was “entitled to temporary partial disability at all times during his healing period from September 2, 1987 through January 24, 1991 when his wages were less than he was receiving at the time of his September 2, 1987 injury.” The record shows that this finding was based on facts stipulated to by the parties concerning the wages that appellant was earning both before and after his injuries, appellant’s uncontradicted testimony at the hearing, to which appellee did not object, and the appellee’s own exhibits, which included the appellant’s personnel file concerning wage information. The ALJ also relied on medical reports which were placed into evidence. Given the evidence introduced by both parties, to which there was no objection, we cannot say that the ALJ resorted to matters outside the record or that this finding was not within the realm of the evidence presented. Therefore, we reverse and remand for proceedings consistent with this opinion for the Commission to determine the appropriate amount of temporary partial disability benefits, if any. Last, appellant argues that he is entitled to a 5% permanent partial disability rating as assessed by Dr. Vincent B. Runnels, appellant’s physician. The record indicates that Dr. Runnels noted that he would have assessed the 5 % disability rating to appellant despite appellant’s 1990 injury. Furthermore, Dr. Runnels refused to attribute the 5 % rating to any specific problem. He testified that the 5 % rating was simply a number he picked “out of the sky.” The Commission found that appellant did not suffer a permanent disability as a result of either compensable injury. We cannot say there is no substantial evidence to support the Commission’s decision. Affirmed in part; reversed and remanded in part. Mayfield and Cooper, JJ., dissent.