WHITE COUNTY JUDGE AND ASSOCIATION OF ARKANSAS COUNTIES RISK MANAGEMENT SERVICES APPELLANTS
v.
BRUCE MENSER APPELLEE
APPEAL
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
G309930]
Rason
M. Ryburn, for appellants.
Gary
Davis, for appellee.
KENNETH S. HIXSON, JUDGE
Appellants,
White County Judge (employer) and Association of Arkansas
Counties Risk Management Services (insurance carrier)
(collectively appellants), appeal from an April 24, 2018,
opinion by the Arkansas Workers' Compensation Commission
(Commission) affirming and adopting the findings of fact and
conclusions of law made by the administrative law judge (ALJ)
in favor of appellee, Bruce Menser[1] (sometimes referred herein
as claimant). The Commission unanimously determined that
Menser, a forty-three-year-old White County deputy sheriff,
sustained a brain injury and neuropathy by inhaling sulfuric
acid fumes that had leached from the battery in his patrol
car. The Commission further found that Menser's claim for
additional medical benefits was not barred by the statute of
limitations and that he is entitled to reasonable and
necessary medical treatment of his compensable brain injury
and neuropathy. On appeal, appellants first urge us to
reverse the determination of the Commission based on a
linguistic technicality. Specifically, they contend that the
statute of limitations barred Menser's claim because he
failed to timely claim "additional" medical
benefits pursuant to Arkansas Code Annotated section
11-9-702(c) (Repl. 2012). Alternatively, they argue that
substantial evidence does not support the Commission's
decision that Menser suffered a compensable injury in the
form of a brain injury and neuropathy. We affirm.
I.
Relevant Facts
In
December 2013, Bruce Menser had been a deputy sheriff for the
White County Sheriff's Department for ten years. On
December 16, 2013, Menser became ill while on patrol. Menser
called his dispatcher for assistance. Another deputy arrived
on the scene and immediately detected a strong odor of
sulfur. The deputy advised Menser to get out of his patrol
car. Menser was subsequently transported by ambulance to the
White County Medical Center (WCMC) emergency room, where he
complained of dizziness, headache, and nausea. Menser was
released later that evening; however, he returned to the WCMC
emergency room the following day(s). Menser continued to
receive medical treatment for well over a year.
Because
Menser was unable to return to work, he went to the
sheriff's department to remove his personal effects from
his patrol car. When Menser opened the trunk, he observed a
white residue in the wheel area and all over the cover of a
new battery that had recently been installed. Upon closer
inspection, Menser further observed that the battery cover
had scorch marks on it, and it looked like the battery had
been on fire. It also appeared that the contents of the
battery had leaked all over the floor of the trunk.
Only
five days after the "accident," on December 20,
2013, the insurance carrier filed FORM AR-1 with the Arkansas
Workers' Compensation Commission, which is the
employer's "First Report of Injury or Illness."
This form was signed by the representative of the employer
and by the adjuster for the insurance carrier. The same day,
the insurance carrier filed Form AR-2 "Employer's
Intent to Accept or Controvert Claim" wherein it
declared that the claim was "ACCEPTED AS
COMPENSABLE." Menser did not file a Form AR-C
"Claim for Compensation" or otherwise formally
request any compensation since appellants had quickly
accepted the claim as compensable and had begun making
payments. Appellants continued to accept the claim as
compensable and paid medical and temporary total disability
(TTD) benefits for four or five months until early April
2014.
Kim
Nash, the insurance adjuster, testified that in late March or
early April in consultation with the insurance carrier's
attorney, the insurance carrier decided to controvert the
claim in its entirety and suspend all compensation. By the
time the insurance carrier controverted the claim, it had
paid $25, 136.45 in medical and indemnity benefits. The last
date of compensation was April 21, 2014.
Because
compensation had been voluntarily and promptly paid by the
insurance carrier commencing within a few days of the
accident, Menser never filed a Form AR-C "Claim for
Compensation." Then, after the claim was controverted,
and the payment of compensation suspended in early April, on
July 11, 2014, Menser's attorney submitted a
request-for-hearing letter to the Commission. The letter
provides as follows:
Re: Bruce Menser v. White County Sheriff's Department,
WCC File No G309930
Dear Ms. Washington:
Please set this case for hearing on medical benefits, and
temporary total disability. I am reserving the issue of PTD.
. . . .
/s/John Ogles, Attorney
On
August 6, 2014, Menser filed his prehearing questionnaire
wherein he requested "payment of benefits," TTD,
permanent total-disability (PTD) benefits, rehabilitation,
wage loss, and attorney fees and attached thereto an index of
medical records. Two days later, on August 8, 2014,
appellants submitted their prehearing questionnaire in which
they denied the claim in its entirety, contending there were
neither objective medical findings nor medical proof of
injury. A month later, on September 15, 2014, a prehearing
telephone conference was held, and the ALJ set the matter for
a hearing on the merits on November 17, 2014. The September
15, 2014, prehearing order lists the issues to be presented
at the hearing, including compensability, TTD, medical
benefits, and attorney's fees.
According
to Menser's attorney, sometime between the preconference
telephone conference and the hearing on the merits, he became
aware that appellants' attorney had been communicating ex
parte with Menser's treating physicians seeking personal
health information about Menser. Menser's attorney filed
with the Commission a motion for relief to prohibit these ex
parte communications. On November 10, in another prehearing
telephone conference, the parties resolved this dispute, and
in a follow-up email from appellants' attorney to the
ALJ, appellants' attorney agreed to refrain from ex parte
communications with claimant's physicians. The parties
also agreed that discovery was incomplete and that a
continuance was necessary. In the same email, appellants'
attorney advised the ALJ that Menser would notify the
Commission when discovery was complete and would again
request a hearing. The ALJ agreed, continued the November 17
hearing, and advised the parties that the file would be
"returned to the Commission's general files."
While
discovery was apparently proceeding, Menser continued to
receive medical treatment. For some reason not disclosed in
the record, neither party requested a new hearing date for
over two years. On December 19, 2016, Menser's attorney
emailed the Commission and "renewed" his request
for a hearing. According to the subsequent opinion filed by
the ALJ, the issues to be litigated were whether Menser's
claim for additional medical benefits was barred by the
statute of limitations, whether the injuries were
compensable, and whether Menser was entitled to receive
reasonable and necessary medical treatment. Appellants
expressed two separate arguments pertaining to their
statute-of-limitations defense: (1) Menser had failed to
request "additional medical benefits" as opposed to
"medical benefits," i.e., the claimant failed to
use the word "additional," in order to toll the
statute of limitations; and (2) because Menser had failed to
request additional compensation for more than two years since
the date of his injury, his claim for additional compensation
was now barred.
The
issues were tried on April 6, 2017, and the ALJ rendered an
opinion on July 5, 2017. Regarding appellants' contention
that all additional compensation was barred by the expiration
of the statute of limitations, the ALJ determined that the
statute of limitations did not bar Menser from receiving all
additional compensation. On this issue, the ALJ specifically
stated,
No FORM AR-C has been filed in this case. That is the means
for filing a "formal claim." [String citation
omitted.] While a form AR-1 [Employer's First Report of
Injury or Illness] was filed, that does not suffice to
instigate a claim.
However,
other means exists to file a claim other than a FORM AR-C. In
Downing v. Univ. of Ark, 1999 AWCC 75 . . . the
Commission stated:
While it appears that no court has addressed the minimum
requirements under Arkansas law to state an adequate
"petition for review," in Cook v. Southwestern
Bell, 21 Ark.App. 29 (1987) the Arkansas Court of
Appeals discussed the minimum requirements necessary for
correspondence to the Commission to constitute a claim for
additional compensation for the purpose of tolling the
applicable statute of limitations. In that case, the Court
held that an attorney's correspondence notifying the
Commission that he has been employed to assist a claimant in
connection with unpaid benefits is sufficient to state a
claim for additional compensation where the correspondence
also lists the claimant's name, the employer's name
and the WCC file number. . . . Moreover, we have interpreted
Cook as requiring that correspondence be intended as
a claim for additional benefits (1) identify the claimant,
(2) indicate that a compensable injury has occurred, and (3)
convey the idea that compensation is expected.
The ALJ
determined that the request-for-hearing letter, dated July
11, 2014, from Menser's attorney to the Commission
constituted the filing of the claim under the Cook
factors. Specifically, the ALJ determined that in the absence
of a Form AR-C, a claim could be commenced by Menser or his
attorney by filing a letter with the Commission that provides
the WCC claim number, the claimant's name and address,
the employer information, and a description of the relief
sought.
On the
appellants' second statute-of-limitations argument that
Menser's claim is now barred because it had been over two
years since the date of his injury, the ALJ also disagreed.
The ALJ determined that the November 17, 2014, hearing on the
merits had been continued at the request of both parties and
that Menser's July 11, 2014, claim had been tolled since
that time. Because the ALJ found that appellants failed to
prove by a preponderance of the evidence that Menser's
claim was time-barred, the ALJ additionally determined that
Menser had sustained a compensable injury and was entitled to
reasonable and necessary medical treatment of his compensable
brain injury and neuropathy.
Appellants
appealed to the Commission. The Commission unanimously
affirmed and adopted the July 5, 2017, opinion of the ALJ,
which was subsequently appealed to this court. We reversed
and remanded. See Menser, 2018 Ark.App. 297, 549
S.W.3d 416. In doing so, we held that the Commission applied
the wrong legal standard when it relied on the standards set
forth in Cook rather than considering Arkansas Code
Annotated section 11-9-702. Id. Moreover, we held
that the Commission erroneously stated that appellants had
the burden of proving that the claim was time-barred.
Id. Rather, it is the claimant's burden to prove
that a claim is timely filed. Id.
On
remand, the ALJ applied the correct burden of proof and filed
an amended and supplemental opinion on August 8, 2018. The
supplemental opinion amended the ALJ's findings regarding
the statute-of-limitations issue but noted that the remainder
of the previous July 5, 2017, opinion remained the same and
was not otherwise affected. In the supplemental opinion, the
ALJ found that the contents of the ALJ's September 15,
2014, prehearing order ...