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Estrada v. AERT, Inc.

Court of Appeals of Arkansas, Divisions I and IV

November 19, 2014

MARIA ESTRADA, APPELLANT
v.
AERT, INC., AND NATIONAL UNION FIRE INSURANCE, APPELLEES

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION. NO. G208219.

Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellant.

Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, for appellees.

BRANDON J. HARRISON, Judge. GRUBER, WHITEAKER, and VAUGHT, JJ., agree. WYNNE and GLOVER, JJ., dissent.

OPINION

Page 328

BRANDON J. HARRISON, Judge

This statutory-interpretation case raises an issue in workers'-compensation law: When did the two-year statute of limitations begin to run on Maria Estrada's unscheduled, gradual-onset back injury?

I.

Estrada worked as an embosser at AERT, Inc., from 2005 to 2012. That job required her to lift and stack large pieces of wood for twelve hours at a stretch. According to Estrada, the job caused some back pain that she dealt with until it became too severe and required surgery. Estrada then made a medical-treatment claim and a temporary total-disability benefits claim.

During the hearing before the administrative law judge, Estrada testified that her pain worsened " little by little" the longer she worked at AERT. She said that she managed her pain with nonprescription medication and that many people at her work had back pain from the heavy lifting. In 2009, Estrada first reported mild back pain to her family physician, Dr. Schemel. (She also presented for additional, unrelated complaints at that same visit.) Dr. Schemel referred Estrada to physical therapy. According to Estrada, in mid-2011 her pain " changed" and she " just could not stand it anymore," so she went to see a chiropractor. The chiropractor

Page 329

sent Estrada to an orthopedist, a referral that culminated in a December 2011 MRI showing that Estrada had a herniated disc.

In February 2012, Estrada missed work with AERT for the first time because of back pain. When she returned to work, Estrada told her supervisor, Marcello Llamas, she was receiving treatment for her back and that her job made the pain worse. The supervisor assigned Estrada to a lighter-duty position. Estrada worked at AERT at the lighter-duty position until she had back surgery in August 2012. Estrada hired an attorney and opened a workers'-compensation claim in September 2012. AERT disputed whether Estrada sustained a gradual-onset compensable injury to her low back, her entitlement to benefits, and her attorney's fee request.

The law judge ruled in AERT's favor. Estrada appealed to the Arkansas Workers' Compensation Commission (the Commission), which ...


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