{ "id": 6136552, "name": "Thomas GARRETT v. SEARS, ROEBUCK & COMPANY", "name_abbreviation": "Garrett v. Sears", "decision_date": "1993-07-07", "docket_number": "CA 92-974", "first_page": "37", "last_page": "47", "citations": [ { "type": "official", "cite": "43 Ark. App. 37" }, { "type": "parallel", "cite": "858 S.W.2d 146" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "21 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136597 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/21/0029-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-702", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "36 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136696 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/36/0029-01" ] }, { "cite": "38 Ark. App. 223", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140469 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0223-01" ] }, { "cite": "Ark. Code Ann. \u00a7 1", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 }, { "cite": "26 Ark. App. 51", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136901 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "52" }, { "page": "579" } ], "opinion_index": 1, "case_paths": [ "/ark-app/26/0051-01" ] }, { "cite": "1 Ark. App. 44", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136904 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "46" }, { "page": "335" } ], "opinion_index": 1, "case_paths": [ "/ark-app/1/0044-01" ] }, { "cite": "237 Ark. 80", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737984 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "81" } ], "opinion_index": 1, "case_paths": [ "/ark/237/0080-01" ] }, { "cite": "17 Ark. App. 96", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6650928 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "99" }, { "page": "175" } ], "opinion_index": 1, "case_paths": [ "/ark-app/17/0096-01" ] }, { "cite": "271 Ark. 498", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756072 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "500" }, { "page": "117" } ], "opinion_index": 1, "case_paths": [ "/ark/271/0498-01" ] }, { "cite": "206 Ark. 854", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485093 ], "weight": 3, "year": 1944, "pin_cites": [ { "page": "857" } ], "opinion_index": 1, "case_paths": [ "/ark/206/0854-01" ] }, { "cite": "21 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136597 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "30-31" }, { "page": "864" } ], "opinion_index": 1, "case_paths": [ "/ark-app/21/0029-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-702", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 759, "char_count": 18544, "ocr_confidence": 0.908, "pagerank": { "raw": 1.672638063819299e-07, "percentile": 0.6961963805611833 }, "sha256": "d74d688c9b60cfd4f164edc7327a0b066b290753afc5a420cd3d0981849ffb3f", "simhash": "1:623e4fb41f200bb0", "word_count": 3052 }, "last_updated": "2023-07-14T22:49:44.592852+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mayfield and Cooper, JJ., dissent.", "Cooper, J., joins in this dissent." ], "parties": [ "Thomas GARRETT v. SEARS, ROEBUCK & COMPANY" ], "opinions": [ { "text": "Judith Rogers, Judge.\nThis is an appeal from the Workers\u2019 Compensation Commission\u2019s decision finding that appellant\u2019s 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.\nThe 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 \u201cpopped\u201d. 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, \u201cfor the periods of time that appellant was receiving less than his previous salary\u201d, 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.\nWhen reviewing a decision of the Workers\u2019 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\u2019s 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\u2019s conclusion, we must affirm its decision. Quality Service Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991).\nFirst, appellant contends that the statute of limitations for additional medical benefits had not expired with regard to his 1987 injury. Under Ark. Code Ann. \u00a7 11-9-702(b) (1987), the time for filing a claim for additional compensation \u201cshall 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.\u201d The record indicates that appellant\u2019s 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.\nAppellant argues, however, that his attorney\u2019s 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\u2019s 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 \u201cat no point did [appellant\u2019s] attorney indicate that any benefits were not being received. To the contrary, she specifically indicates that she is not requesting a hearing because [appellant\u2019s] medical bills were being paid.\u201d The Commission thus concluded that appellant\u2019s 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.\nIn Cook, we held that the appellant\u2019s counsel\u2019s 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\u2019s name, the employer\u2019s name, and the Workers\u2019 Compensation Commission\u2019s file number. However, we find Cook distinguishable.\nIn this case, appellant\u2019s counsel\u2019s letter stated:\nPlease 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\u2019s medical is being is paid.\nWe agree with the Commission\u2019s 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\u2019s finding that appellant was barred by the statute of limitations from receiving further benefits connected with his 1987 back injury.\nAs his second point, appellant contests the Commission\u2019s 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\u2019s conclusion.\nThe ALJ found that appellant was \u201centitled 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.\u201d 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\u2019s uncontradicted testimony at the hearing, to which appellee did not object, and the appellee\u2019s own exhibits, which included the appellant\u2019s 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.\nLast, appellant argues that he is entitled to a 5% permanent partial disability rating as assessed by Dr. Vincent B. Runnels, appellant\u2019s physician. The record indicates that Dr. Runnels noted that he would have assessed the 5 % disability rating to appellant despite appellant\u2019s 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 \u201cout of the sky.\u201d 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\u2019s decision.\nAffirmed in part; reversed and remanded in part.\nMayfield and Cooper, JJ., dissent.", "type": "majority", "author": "Judith Rogers, Judge." }, { "text": "Melvin Mayfield, Judge,\nconcurring and dissenting. I must dissent from the majority opinion on the first issue in this case. That issue is whether the statute of limitations barred appellant\u2019s claim for additional compensation. The statute involved is Ark. Code Ann. \u00a7 11-9-702(b) (1987), which provides in pertinent part:\nIn cases where compensation for disability 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 years from the date of injury, whichever is greater.\nThe appellant sustained a compensable injury on September 2,1987. The last payment of benefits was made on May 16,1989, for medical services rendered January 23, 1989. Appellant contends that a letter written by his attorney to the Commission, dated June 13, 1989, met the statutory requirement for filing a claim. On June 21, 1989, the Assistant Executive Director of the Commission acknowledged receipt of the letter from appellant\u2019s attorney. Therefore, we know that by June 21, 1989, at the latest, the letter from appellant\u2019s attorney had been received by the Commission. That was clearly within two years of appellant\u2019s injury and within one year from the date of the last medical treatment paid for by appellee. However, the Commission held, and the majority opinion agrees, that the letter from appellant\u2019s attorney did not constitute the filing of a claim. The letter stated:\nRE: Tom Garrett v. Sears\nWCC File No: Unknown\nD/A: 9-2-87\nSSN: [ XXX-XX-XXXX ]\nDear Ms. Gray:\nPlease 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 [sic] 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\u2019s medical is being is [sic] paid.\nBy copy of this correspondence I am informing the respondent of this representation and asking that they contact my office as soon as possible.\nSincerely,\nLaura J. McKinnon\nLJM/cmp\ncc: Allstate Insurance Co.\nP. O. Box 105584\nAtlanta, GA 30348\nThe majority opinion cites our case of Cook v. Southwestern Bell Telephone Co., 21 Ark. App. 29, 727 S.W.2d 862 (1987), where we reversed the Commission\u2019s decision holding that the claim for additional benefits was barred by limitations. The majority opinion says the Cook case is distinguishable because the letter from the attorney to the Commission in that case stated the attorney had been \u201cemployed to assist Katherine R. Cook in connection with unpaid benefits in the above matter.\u201d With all due respect, I think there is no meaningful distinction between the two letters. Moreover, I think the majority opinion sweeps away the precedent which has been established for many years on this point. In Cook we said:\nOn appeal to this court, the appellant cites Long-Bell Lumber Co. v. Mitchell, 206 Ark. 854, 177 S.W.2d 920 (1944), in support of her contention that the letter of April 9, 1985, constituted a claim. In that case, the Arkansas Supreme Court said that the Commission was correct in treating certain correspondence between the claimant and the Commission as tantamount to the filing of a claim. In so holding, the court stated:\nIn our Workmen\u2019s Compensation Law, formalities are frowned on. A reading of \u00a7\u00a7 18, 19 and 27 thereof is convincing of this statement. The spirit of the law, inter alia, is to afford a speedy and simple form of relief to, or settlement of the claims of, those injured. (71 C.J. 247). The act is to be liberally construed to effectuate its purposes; and the correspondence was notice of claim.\n206 Ark. at 857.\nAppellant also cites Larson\u2019s treatise on worker\u2019s compensation law, which both parties agree states:\nAt the minimum, the informal substitute for a claim should identify the claimant, indicate that a compensable injury has occurred, and convey the idea that compensation is expected.\nSee 3 Larson, Workmen\u2019s Compensation Law \u00a7 77A.41 (1983).\n21 Ark. App. at 30-31, 727 S.W.2d at 864.\nIn Woodard v. ITT Higbie Manufacturing Co., 271 Ark. 498, 500, 609 S.W.2d 115, 117 (Ark. App. 1980), the court said that \u201cthe purpose of the statute of limitations in workers\u2019 compensation cases is to permit prompt investigation and treatment of injuries.\u201d In the instant case the Commission\u2019s opinion states that appellant had already been paid temporary total disability and medical benefits and that the last medical treatment received was on January 23,1989. In fact, appellee\u2019s exhibit \u00a72 shows that the last payment for medical treatment was on May 16, 1989. Thus, appellee knew of appellant\u2019s injury and, less than a month before the letter of June 13, 1989, had paid for the medical treatment rendered to appellant on January 23, 1989. Appellee would have to be more than naive not to know that the letter was a claim for additional benefits. In Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986), we held that a claimant\u2019s timely filing for rehabilitation and additional permanent disability payments also tolled the statute for her later requested medical benefits. To hold otherwise, we said would \u201cinvoke a measure of precision uncalled for by the broad language of the statute and unsupported by the case law of this state.\u201d 17 Ark. App. at 99, 704 S.W.2d at 175. I think this statement applies to the instant case. Therefore, I dissent on the first issue.\nThe second point argued by the appellant is that the Commission erred in reversing the administrative law judge\u2019s decision which had found appellant entitled to temporary partial disability benefits. The majority opinion agrees with this point, and so do I. However, I want to add to the discussion of the majority opinion on this point. The Commission reversed the law judge \u201cbecause the issue was raised not by either party in this case but rather by the ALJ who resorted to matters outside the record and speculation to make the finding.\u201d The specific finding reversed was that appellant was \u201centitled to temporary partial disability benefits during the period of September 2, 1987 through January 24, 1991.\u201d This finding was based upon the evidence discussed by the law judge which included the parties\u2019 stipulation of the amount of wages made by appellant during his healing period and the fact that he was paid less during that period than the average wage he was receiving immediately prior to his injury on September 2, 1987.\nIn the first place, I want to note that I am in complete agreement with the opinion on this point of the dissenting Commissioner who stated:\nIt was not improper for the ALJ to determine whether claimant was entitled to benefits for temporary partial disability. At the hearing, claimant contended that he was entitled to total disability benefits. Claimant did not have to specifically raise the issue of entitlement to temporary partial disability benefits. The possibility that the evidence will support an award for temporary partial disability is necessarily included within a claim for temporary total disability.\nIn the second place, I do not think the Commission\u2019s statement that the law judge \u201cresorted to matters outside the record and to speculation\u201d to find appellant entitled to temporary partial disability is supported by the record. It is important to note that the Commission did not itself make any factual determination on the merits of the question of whether the evidence in the record established that appellant was entitled to temporary partial disability benefits. It is, of course, the duty of the Commission to make a finding according to a preponderance of the evidence and not whether there is any substantial evidence to support the finding of the law judge. Moss v. El Dorado Drilling Co., 237 Ark. 80, 81, 371 S.W.2d 528 (1963); Jones v. Scheduled Skywards, Inc., 1 Ark. App. 44, 46, 612 S.W.2d 333, 335 (1981); Jones v. Tyson Foods, Inc., 26 Ark. App. 51, 52, 759 S.W.2d 578, 579 (1988). However, I think the evidence before the law judge relates to whether the issue of entitlement to temporary partial disability was properly before the law judge.\nAs appellant\u2019s brief states, the law judge relied upon the stipulated evidence concerning the difference in wages that appellant was paid prior to his injury and during his healing period, the appellant\u2019s uncontradicted testimony during the hearing, to which the appellee did not object, and the appellee\u2019s own exhibits, which included the appellant\u2019s personnel file concerning wage information. In addition, the law judge\u2019s opinion makes very detailed findings of fact and conclusions of law, and the opinion has a discussion that tracks the judge\u2019s reasoning and the evidence, including the medical reports. Ark. Code Ann. \u00a7 1 l-9-705(a)(1) (1987) provided the guide for the law judge to follow in the hearing on this claim:\nIn making an investigation or inquiry or conducting a hearing, the commission shall not be bound by technical or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter, but may make such investigations or inquiry, or conduct the hearing in a manner as will best ascertain the rights of the parties.\nUnder this guide it is clear to me that the issue of temporary partial disability was properly before the law judge, both parties introduced evidence on the issue, neither objected that the issue was not before the law judge and it was tried by implied consent and in a manner that would best ascertain the rights of the parties.\nThe third point raised by appellant contends that the Commission erred in refusing to allow him a 5% permanent partial disability entitlement as assessed by Dr. Runnels. I agree with the majority opinion\u2019s conclusion that we cannot say there is no substantial evidence to support the Commission\u2019s decision on this point.\nIn summary, I concur with the majority opinion on the permanent partial disability issue and agree to affirm the Commission on that point. I also concur with the majority opinion in reversing and remanding on the issue regarding the law judge\u2019s finding as to temporary total disability. I disagree, however, with the Commission on the statute of limitations issue; therefore, I dissent on that point.\nCooper, J., joins in this dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "McKinnon Law Firm, by: Nancy L. Hamm, for appellant.", "Walter A. Murray, for appellee." ], "corrections": "", "head_matter": "Thomas GARRETT v. SEARS, ROEBUCK & COMPANY\nCA 92-974\n858 S.W.2d 146\nCourt of Appeals of Arkansas En Banc\nOpinion delivered July 7, 1993\nMcKinnon Law Firm, by: Nancy L. Hamm, for appellant.\nWalter A. Murray, for appellee." }, "file_name": "0037-01", "first_page_order": 59, "last_page_order": 69 }