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ARKANSAS COURT OF APPEALS DIVISION I No. CV-14-673

Opinion Delivered February 18, 2015

NABHOLZ CONSTRUCTION APPEAL FROM THE ARKANSAS CORPORATION and ST. PAUL WORKERS’ COMPENSATION TRAVELERS INSURANCE COMMISSION [NO. E609910] COMPANY APPELLANTS

V.

BRADLEY WHITE and DEATH AND AFFIRMED PERMANENT DISABILITY TRUST FUND APPELLEES

BRANDON J. HARRISON, Judge

Nabholz Construction Corporation and St. Paul Travelers Insurance Company

(collectively referred to as “Nabholz”) appeal the Workers’ Compensation Commission’s

decision to award Bradley White additional-medical benefits. Nabholz argues that (1) the

Commission erred in holding that the statute of limitations did not bar White’s claim for

additional benefits, and (2) no substantial evidence exists to support an award of

additional-medical benefits. We affirm the Commission’s decision.

I. Facts

In 1996, nineteen-year-old Bradley White fell thirty-five feet from a building on a

Nabholz Construction worksite. White sustained low back and ankle injuries. Nabholz

accepted these injuries as compensable and paid medical, indemnity, and permanent

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anatomical-impairment benefits to White. In 1998, White filed an AR-C Form with the

Workers’ Compensation Commission. He checked every box on the form—including

boxes for initial and additional benefits. Nabholz filed a closing report, an AR-4 Form,

with the Commission in October 2000 and considered the case closed. In September

2004, White was in a significant car accident, an event that will be discussed in due

course. From 2002 until 2007, Nabholz made no benefit payments. In 2006, White

requested a hearing on permanent-partial disability, “further medical treatment,” and a

change of physician; in 2007, the Commission issued an opinion.

The Commission’s 2007 opinion affirmed and adopted the ALJ’s findings that, in

1998, White had filed his AR-C Form and therefore made a claim for additional-medical

benefits within the two-year limitations period. The Commission also found that the

AR-4 Form that Nabholz filed in 2000 had “no legal effect” against White’s claim for

additional benefits. But the Commission also stated that White had “merely requested a

change of physician, rather than additional medical care. While [Nabholz’s] argument

may eventually be persuasive, should [White] seek additional medical care, it is no defense

to his current request to change physicians and have the associated initial examination.”

White was therefore awarded a statutory one-time change of physician and an initial

examination pursuant to

. Nabholz did not appeal the

Commission’s 2007 decision.

A change-of-physician order was entered in 2009, and White treated with Dr.

Harold Chakales. In 2010, White requested a hearing for “payment of any outstanding

medical,” among other things. Following Dr. Chakales’s death, White was awarded a

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new change-of-physician order to Dr. Gil Johnston. Nabholz paid Dr. Johnston’s bill.

White was not heard on his 1998 claim for additional-medical benefits until October

2013, when the ALJ convened a hearing and then issued an opinion.

In June 2014, the Commission adopted the ALJ’s opinion that stemmed from the

October hearing and found that White’s claim for additional-medical benefits, and

Nabholz’s statute-of-limitations defense, had not been adjudicated by the Commission in

2007. This means that the first hearing on White’s claim for additional-medical benefits—

and the related limitations defense—was held in October 2013. White testified briefly

during the October 2013 hearing about his work history and the 2004 car accident.

The Commission also found that the applicable statute of limitations,

(b), did not time-bar White’s additional-medical-benefits claim. The

Commission reasoned that, because White had filed an AR-C Form with the “additional

benefits” and “additional medical expenses” boxes checked, and the form was filed within

two years of White’s initial injury in June 1998, the statute’s requirements were satisfied.

In the Commission’s view, the AR-C Form held open White’s claim for additional

benefits until the “claim was acted upon.” The Commission concluded that, because

White requested additional-medical treatment in the 1998 AR-C Form and that request

was not previously decided or dismissed, White’s claim was not barred by the statute.

II. Standard of Review

In reviewing decisions from the Workers’ Compensation Commission, we view

the evidence and all reasonable inferences in the light most favorable to the Commission’s

decision and affirm if it is supported by substantial evidence. Smith v. City of Ft. Smith, 84

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Ark.

(2004). Substantial evidence is that which a reasonable

mind might accept as adequate to support a conclusion.

The issue is not whether this

court might have reached a different result from the Commission. If reasonable minds

could have reached the Commission’s result, then we affirm.

III. Statute-of-Limitations Issue

We address the statute-of-limitations issue first. Nabholz argues that the statute

time-bars White’s claim because the last medical benefits paid in the case occurred in June

2002, and White waited more than eight years before acting again on his claim for

additional treatment. Nabholz contends that it communicated to White that it considered

the case closed when it filed a AR-4 Form with the Commission in October 2000. The

Commission’s holding, in Nabholz’s view, renders the statute “meaningless” and arguably

conflicts with our prior decisions in Flores v. Walmart Distribution,

, and

Eskola v. Little Rock School District,

,

(2005).

The statute governing the time for filing claims for additional benefits is section 11-

9-702(b):

(b) Time for Filing Additional Compensation.

(1) In cases in which 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.

Our supreme court interpreted subsection 702(b) in Plante v. Tyson Foods, Inc.,

,

(1994):

It is well-settled that the furnishing of medical services constitutes “payment of compensation” within the meaning of the limitations statute and that such 4 Cite as

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.

,

(citations omitted). The take-away from Plante is that

although the statute contains no express tolling provision for an additional-medical

benefits claim in particular, our supreme court has interpreted the statute to mean that the

one-year limitations period may not begin to run until the last payment of compensation,

which means from the date medical services were last provided.

Explaining why it found that the limitations statute was tolled when White filed his

AR-C Form in 1998, the Commission wrote, “Arkansas Courts have long held that a

timely filed claim for additional benefits tolls the statute of limitations until the claim is

acted upon.” (emphasis added.) The broadly stated statute-of-limitations question this case

presents is: what is the legal effect of the 1998 AR-C Form? That question, however,

raises narrower ones. Does that form’s filing remove White’s additional-medical benefits

claim from the time-bar shadow because it was filed within two years of the date of

White’s compensable injury? Or did the form’s filing only stop the limitations period

from ticking until the claim is “acted upon”? There is a third option: White’s filing of

the 1998 AR-C Form could start a new limitations period running, the effect of which

would be that his claim is barred because there are treatment “gaps” after the last payment

of benefits was made in 2002.

The case law in general supports the notion that a timely claim for benefits stops

the limitations period from running against it. In Jones Truck Lines v. Pendergrass,

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(2005), for example, a claimant’s 2003 claim for knee surgery

was not time-barred although the compensable injury occurred more than thirty years

earlier, in 1971. The claimant had filed a timely claim for additional benefits in 1974 and

it remained open, but inactive, because the claim was neither decided nor dismissed. Our

supreme court affirmed this principle in VanWagner v. Wal-Mart Stores, Inc.,

,

(2007), recalling that the claimant’s additional-benefits claim was not

time-barred because: (1) a hearing was never held on the claim; (2) the claim was placed

on inactive status; and (3) a final order was never entered on his case.

The bottom

line appears to be that the critical inquiry for statute-of-limitations purposes is the date a

claim is adjudicated. Bledsoe v. Georgia-Pac. Corp.,

,

(1984). But see Curtis v. Big Lots,

,

(noting

that a dismissal pursuant to

(d) “has been ruled to ‘untoll’ the

statute of limitation”). We therefore affirm the Commission’s reasoning that White timely

asserted his claim for additional benefits within the two-year limitations period in 1998

because the claim was neither dismissed nor decided until 2013.

Nabholz claims that our decisions in Flores, supra, and

counsel us to

reverse the Commission. In those cases, we affirmed the Commission’s finding that the

statute of limitations barred the claimants’ benefits requests. Each case dealt with a request

for additional-medical benefits, though the real issue in Flores was whether the timely filed

claim for additional-medical benefits preserved a claim for permanent-disability benefits

filed outside the one-year-limitations period. We held in Flores that a timely request for

additional-medical benefits does not hold the statute open for an untimely request for

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permanent-disability benefits. Because Flores did not address a potentially untimely

additional-medical benefit claim, it does not control the limitations issue presented here.

Eskola presents a thornier question. Eskola was a high-school football coach who

suffered a compensable shoulder injury in September 1998. After the injury, Eskola saw

Dr. Richard Nix and received muscle relaxers, cortisone injections, and physical therapy.

He did not file an AR-C Form until almost one year later, in June 1999. Eskola’s AR-C

form, like White’s AR-C Form in this case, had every box on it checked—including

boxes for both initial and additional benefits. But Eskola, unlike White, had not yet

received any workers’ compensation benefits when he filed his AR–C Form. Within

months of filing his 1999 AR-C Form requesting benefits, Eskola was considered a

candidate for shoulder surgery; he did not, however, choose to have the surgery until

2003. By that time, our court ruled, it was too late—the statute had run on Eskola’s claim

for additional benefits, including his request for shoulder surgery.

According to the Commission, the key distinction between this case and Eskola is

factual. In Eskola, the “all checked” AR-C Form was treated as a claim for initial benefits.

In this case, the “all checked” AR-C Form was treated as a claim for additional benefits.

Acknowledging that Eskola gives us pause, we nonetheless affirm the Commission here. In

doing so we rely on Eskola’s reasoning that “[a] claim request cannot be considered to be

both an initial request for compensation and an additional request for benefits at the same

time.”

,

.

Whether a claim is an initial request for benefits, or a request for additional

benefits, is a fact question that the Commission must first decide. Here, we defer to the

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Commission’s fact-based decision to characterize White’s AR-C Form as a request for

additional benefits. Unlike Eskola, White had been receiving medical, indemnity, and

permanent anatomical-impairment benefits for nearly two years before he filed his AR-C

Form. The Commission’s determination that the form was a request for additional

benefits is therefore supported by substantial evidence. So the reasons Eskola’s additional-

benefits claim was time-barred do not apply here.

Our determination that a timely filing of an AR-C claim for additional benefits

suspends the statute of limitations is in tension with some prior dicta, most notably that

expressed in Petit Jean Air Serv. v. Wilson,

,

(1972)

(filing a claim with the Commission is “by no means comparable to the lodging of a

formal complaint in a court of law”). But our holding is nonetheless in line with our

standard of review and recent caselaw that has addressed section 11-9-702(b).

IV. Additional-Medical-Benefits Claim

The Commission ruled that the record before it sufficiently supported White’s

claim for additional-medical benefits. Nabholz challenges that determination.

Consequently, we ask whether substantial evidence exists to support an award of

additional-medical benefits to White.

The Commission found that White had established, by a preponderance of the

evidence, that additional-medical treatment provided by Dr. Johnston was reasonably

necessary for treatment of his compensable back injury. (Recall that White received an

initial examination with Dr. Johnston because Dr. Chakales had died). The Commission

also found that Dr. Johnston’s referral to a pain-management doctor was reasonable and

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necessary medical treatment. The 2004 car wreck, the Commission determined, was not

an independent intervening cause of White’s need for additional treatment.

Nabholz argues that the Commission’s decision is flawed because the record shows

that it last paid medical benefits to White in June 2002, that one or more gaps in medical

treatment continued until White was injured in an automobile accident in September

2004, and that it is not required to pay benefits for injuries caused by the car accident. In

Nabholz’s view, the Commission should have concluded that the car wreck was an

independent intervening cause that relieved Nabholz of any obligation to pay additional-

medical benefits to White.

Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an employer

to promptly provide an injured worker medical treatment “as may be reasonably necessary

in connection with the injury received by the employee.” The employee must prove by a

preponderance of the evidence that medical treatment is reasonable and necessary. Wal-

Mart Stores, Inc. v. Brown,

,

(2003). What constitutes

reasonably necessary treatment is a question of fact the Commission decides. Hamilton v.

Gregory Trucking,

,

(2005). Medical treatment intended

to reduce or enable an injured worker to cope with chronic pain attributable to a

compensable injury may constitute reasonably necessary medical treatment. LVL, Inc. v.

Ragsdale,

,

; see also Artex Hydrophonics, Inc. v. Pippin,

,

(1983) (holding that respondents remain liable for

medical treatment reasonably necessary to maintain a claimant’s condition even after the

healing period ends).

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Here, substantial evidence exists to support the Commission’s findings that

“additional follow-up care”—with White’s treating physician, Dr. Johnston, and the

management of prescription medication through a referral to a pain-management

specialist—was reasonably necessary medical treatment. After White’s 1996 fall, he

received an open reduction and internal fixation for a left ankle fracture. He also had a

lumbar fusion to stabilize a “burst fracture” he sustained in his low back. In 1997, a report

from Dr. Anthony E. Russell noted a “significant loss” of paraspinous muscle and that

White “could expect to have a significant pain” from the loss. Dr. Russell also “strongly

recommended” that White consider some type of sedentary work because “[h]aving had

this type of surgery at this young age, he is dooming himself to long term back problems if

he does not eliminate the heavy physical labor.” White was paid a lump sum for a 15%

disability rating he received for his ankle and a 23% rating for his body. He also saw a

pain specialist, Dr. Garlapati, in 2005. Dr. Garlapati diagnosed White with cervical

radicular pain; left upper extremity; severe myofascial pain syndrome; bilateral neck and

left shoulder; asymmetry of the left body that involves decreased left shoulder muscle mass

and decreased range of left ankle movements; and a history of fusion at L4-5. A 2005

letter from Dr. J. Michael Calhoun stated that White “will require intermittent

medications and physical therapy most likely for the remainder of his [life] in order to

continue to be a productive citizen.”

Dr. Chakales’s reports from 2009 to 2011 show that he thought White had “some

problems with persistent, chronic pain.” Dr. Chakales’s records also noted “degenerative

traumatic arthritis of the ankle joint itself,” degenerative disc disease (C4-5, C5-6) with

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radicular symptoms, and he prescribed pain medicine, including opioid pain medicines.

Dr. Johnston, to whom the Commission referred White after Dr. Chakales’s death, wrote

that White “certainly has much cumulative trauma . . . his injuries are well-documented

and evaluation by pain management specialist will be helpful.”

The record supports the Commission’s finding that White is entitled to additional-

medical treatment for his pain-related conditions.

Moving on to the second part of Nabholz’s argument, according to

(4)(F)(iii), benefits “shall not be payable for a condition which results

from a nonwork-related independent intervening cause following a compensable injury

which causes or prolongs disability or need for treatment.” Our supreme court

interpreted this section in Davis v. Old Dominion Freight Line, Inc.,

,

(2000), and held that the statutory amendment adding the language that an

independent intervening cause does not require negligence or recklessness on the part of

the claimant did not modify prior case law, but rather codified prior case law, including

Guidry v. J. & R. Eads Construction Co.,

,

(1984). In

Guidry, this court stated that if there is a causal connection between a primary

compensable injury and the subsequent disability, there is no independent intervening

cause unless the subsequent disability is triggered by activity that is unreasonable under the

circumstances.

Substantial evidence supports the Commission’s conclusion that the 2004 car wreck

was not an independent intervening cause of White’s need for further medical treatment.

White’s conduct was not unreasonable in this case. He was never restricted from driving

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by any doctor. Nabholz contends that the injuries caused by White’s car accident were

not causally connected to his compensable injury, but there is contrary medical evidence.

For example, White had a follow-up visit with Dr. Russell six months before the car

accident. Dr. Russell noted that White’s “major complaint today has been a recurring

theme since the beginning. His left shoulder is causing quite a bit of trouble.” White

testified during the October 2013 hearing that he could “only do so much work” after he

fell because the different jobs caused his pain level to increase the more he used his body.

White also left his last regular employment outside the family businesses six months before

the wreck occurred.

Nabholz claims that Dr. Johnston recommended a pain specialist without any

knowledge of the injuries White suffered in the car accident and that White lacked

employment after the car accident to support a contrary conclusion. But 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 affirm its decision. See Pafford Med. Billing Servs., Inc. v. Smith,

,

(affirming Commission’s conclusion that a car accident was

not an independent intervening cause). Substantial evidence supports the Commission’s

decision that White’s motor-vehicle accident was not an independent intervening cause

that relieved Nabholz of further liability.

Affirmed. ABRAMSON and GLOVER, JJ., agree. Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Phillip M. Brick, Jr., for appellants. Stanley Law Firm, P.A., by: James W. Stanley, for appellees.

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