FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Law Partners, LLP, by: Jason L. Watson, for appellant.
Zachary F. Ryburn, for appellees.
Gruber, C.J., and Whiteaker, J., agree.
SUPPLEMENTATION OF THE RECORD AND REBRIEFING
WAYMOND M. BROWN, JUDGE
appeals from the Arkansas Workers' Compensation
Commission's (Commission) January 12, 2017 opinion
affirming and adopting the July 11, 2016 opinion of the
administrative law judge (ALJ) denying his claim on finding
that the statute of limitations had run in the matter and
that he had failed to prove that he was entitled to any
additional indemnity benefits. On appeal, appellant argues
(1) that the Commission erred in finding that his claim for
additional indemnity benefits was barred by the applicable
statute of limitations and (2) that the Flores v. Walmart
Distribution interpretation of the statute of
limitations is not strict construction, and is therefore
contrary to legislative intent. We are unable to address the
merits of appellant's argument and hereby order
supplementation of the record and rebriefing.
provided the only testimony at the hearing before the ALJ. He
testified that he was injured on July 25, 2006. He received
temporary total disability benefits through October 15, 2007,
and received medical treatment, including surgery with Dr.
Blankenship, after which he returned to work. In 2013, while
working for Central States Manufacturing, Inc. (Central
States), in South Dakota, he started experiencing increased
pain, which he reported to Central States. Central States
"forced [him] to go through a process with the
Workers' Compensation Commission, " in which he
eventually returned to the care of Dr. Blankenship, who
removed him from work and performed a second surgery.
Following the surgery, he attempted to return to work under
"partial day and limited activity restrictions" in
2014, but his pain increased despite being limited to
four-hour work days. He returned to Dr. Blankenship, who
again removed him from work, and then Central States fired
him, saying that he was "no longer needed." Central
States stopped paying indemnity benefits when it fired him,
though it had resumed doing so after his second surgery.
testified that "[t]here was a period of about five years
that [he] did not receive any type of indemnity benefit, only
medical"; he thought the gap was between 2007 and 2012.
He was not sent or asked about, and he did not ask for, any
indemnity benefits during that time. He never made a written
claim for indemnity benefits and did not request them before
hiring an attorney. He stated that he "never saw a need
to request additional benefits; [he] did not know it was an
option." Following appellant's testimony, both
appellant and Central States rested, after which the ALJ
ordered briefs from both, noting that he "particularly
want[ed] the statue of limitations' [sic] issue"
addressed in the briefs.
Code Annotated section 11-9-711(b)(1)(A) provides that, after
a notice of appeal is filed with the Commission, "the
commission under its certificate shall send to the court all
pertinent documents and papers, together with a transcript of
evidence and the findings and orders, which shall become the
record of the cause." Appellant provided the only live
testimony at the hearing. Neither appellant nor Central
States provided a closing argument to the ALJ, with both
resting after appellant's testimony. The record lodged
with our court does not contain either of the parties'
briefs. Without the briefs submitted to the ALJ, this court
is not able to ascertain whether appellant's arguments
were raised below or whether they remain in the scope and
nature of what they were below. Arkansas Rule of Appellate
Procedure-Civil 6(e) states that the appellate court, on its
own initiative, may direct that the omission or misstatement
of anything material shall be corrected, and if necessary,
that a supplemental record be certified and
transmitted. Therefore, we remand to the Commission to
supplement the record to include the parties' briefs.
briefs are also absent from the addendum, though necessary
for the above-referenced reasons. Arkansas Supreme Court Rule
4-2(a)(8) states that "[t]he addendum shall contain true
and legible copies of the non-transcript documents in the
record on appeal that are essential for the appellate court
to confirm its jurisdiction, to understand the case, and to
decide the issues on appeal."
Arkansas Supreme Court Rule 4-2(a)(5) states that "[t]he
appellant shall create an abstract or abridgment of the
transcript that consists of an impartial condensation of only
such material parts of the testimony of the witnesses and
colloquies between the court and counsel and other parties as
are necessary to an understanding of all questions presented
to the court for decision." No more than one page of a
transcript shall be abstracted without giving a record page
reference. Appellant's method of summarization
fails to cover all testimony and excludes pages from being
abstracted at all.
of these deficiencies, we hereby order rebriefing and direct
appellant to file a substituted brief that complies with our
rules. Appellant shall have fifteen days from the date the
supplemental record is submitted to file a substituted
abstract, brief, and addendum that complies with the rules.
See Ark. Sup. Ct. R. 4-2(b)(3). We also encourage
counsel to carefully review our rules to ensure that all
material information is contained in the record and addendum.
of the record ...