{
  "id": 1688301,
  "name": "Phillips v. Bray",
  "name_abbreviation": "Phillips v. Bray",
  "decision_date": "1961-11-20",
  "docket_number": "5-2539",
  "first_page": "190",
  "last_page": "200",
  "citations": [
    {
      "type": "official",
      "cite": "234 Ark. 190"
    },
    {
      "type": "parallel",
      "cite": "351 S.W.2d 147"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "234 Ark. 151",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1688284
      ],
      "weight": 2,
      "opinion_index": 1,
      "case_paths": [
        "/ark/234/0151-01"
      ]
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  "last_updated": "2023-07-14T15:15:30.076044+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "McFaddin, and Johnson, JJ., dissent."
    ],
    "parties": [
      "Phillips v. Bray."
    ],
    "opinions": [
      {
        "text": "Paul Ward, Associate Justice.\nThis is a Workmen\u2019s Compensation Case. Appellant, J. Ward Phillips, was injured in 1955, was granted compensation in November 1958 for 56 1/4 weeks at $25 per week, and then filed for increased compensation in January, 1960. This latter claim was denied by the Referee, the full Commission and the Circuit Court, and now this appeal is prosecuted by appellant. Although the above mentioned three tribunals reached the same result which we hereafter reach, this result is not reached for the same reasons. To clarify the situation we deem it expedient to set out below a chronological summary of the essential facts involved and also the several procedural steps taken.\nAppellant was injured in the course of his employment on September 9, 1955. A claim was promptly filed, pending which he was paid $100 for four weeks total disability. A hearing on the claim was repeatedly delayed because of the ill health (and subsequent death) of appellant\u2019s attorney. Finally a hearing was held before a Referee (Calhoun) on November 12, 1958. The Referee found that appellant received a 12 1/2 percent permanent partial disability to the body as a whole, and he was awarded $25 per week for 56 1/4 weeks. No appeal was taken from this award, and thirty days after the award was made the insurer paid appellant the full sum of the award, or $1,406.25. A record of the proceeding before Referee Calhoun is not contained in the record before us.\nOn January 18, 1960 appellant filed a claim for total permanent disability before a Referee (Mathis) at which time testimony was introduced by appellant and two other witnesses tending to show (a) that appellant was totally disabled and (b) that the doctor bills of Dr. Cole and Dr. Hundley had not been paid. The respondent contended it had paid all bills presented, and took the position that this claim of appellant was barred by Ark. Stats. \u00a7 81-1318 (b). Based on the above proceedings another Referee (Thomasson), on September 19, 1960, found (a) that the claim was barred by the above statute and (b) that all \u201cmedical bills for which respondent is responsible have been paid\u201d.\nAn appeal from the above decision was taken to the full Commission. At this hearing appellant (the only witness) testified at length, principally to the effect that the bills of Dr. Cole (in the amount of $40) and Dr. Hundley (in the amount of $87) had not been paid. He also attempted to show that he was totally disabled. The respondent again contended all bills had been paid and that the claim was barred. The full Commission found: (a) The claim was not barred by statute; (b) Dr. Cole\u2019s bill had not been but should be paid, and; (c) \u201cthere was no showing that the claimant is disabled to any further than the 12 1/2 percent for which he has been awarded and paid compensation\u201d.\nOn appeal to the Circuit Court the findings of the full Commission were affirmed. In doing so, the trial court said it could \u2018 \u2018 find no where any testimony which indicates that his [claimant\u2019s] present condition is in any way related to his traumatic injury in 1955\u201d.\nWe agree with the result reached by the full Commission and the Circuit Court, but we reach that result for different reasons hereafter set forth.\n(1) The Commission and the Circuit Court (as above shown) found claimant had produced no substantial evidence to show that his present disability exceeded 12 1/2 percent (for which he had already been paid), or, if it did, there was no substantial evidence to show such excess disability was the result of the 1955 injury. Our view is that, if the claim is not barred by limitations, the cause would have to be remanded to the Commission to give claimant an opportunity to produce the required evidence. We say this because it appears from the record that claimant was misled into a failure to produce such evidence before the Referee. The hearing before Referee Mathis (above mentiond) was the time and place for claimant to present the required testimony, but it appears to us (and it may have appeared to claimant) that the hearing was limited to the question of limitations.\nMr. Biff el: \u201cAre we going to confine this hearing to the question of limitations?\nMr. Mathis: \u201cYes.\nMr. Milham: \u201cAre you ready now?\nMr. Mathis: \u201cYes. Have your first witness come around and take the chair please.\u201d\n(2) It is our opinion, however, that appellant\u2019s claim is barred by \u00a7 81-1318 (b) previously mentioned. The above subsection reads:\n\u201cAdditional compensation. In 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 [2] years from the date of accident, which ever is greater. \u2019 \u2019\nThe last payment was made to appellant on December 12, 1958, and his claim for additional compensation was not filed until January 18, 1960. Thus it definitely appears on the face of the record that the claim for total permanent disability was filed too late. To avoid this result, claimant contends (a) the last payment was not made until 56 1/4 weeks after the payment on December 12, 1958 and (b) all doctor bills have not been paid.\n(a) Claimant\u2019s contention before the Referee was that the -weekly payments should start on November 12, 1958 (the date of the award) and run for 56 1/4 weeks; this would extend the time to about December 15, 1959, and the one year allowed by statute would give him until December, 1960 to file his claim. For several reasons, we cannot agree with appellant. Under the statute weekly payments begin fifteen days after notice to the employer of injury [\u00a7 81-1319 (b)]. We know claimant gave prompt notice (in 1955) because he was paid for four weeks in 1955. Also, there can he no doubt that the $1,406.25 payment was to take care of payments already accrued, and not for future accruals. This is confirmed by the language used in \u00a7 81-1319 (k) which allows a 4 percent deduction when future payments are discharged by a single total payment. This deduction was not claimed or taken here by appellees. We see no merit in the argument that claimant would be entitled to an additional 20 percent of all past due payments if the $1,406.25 is so considered. This argument is predicated on \u00a7 81-1319 (f). It will be noted however that this penalty attaches only where an award has been made. No award was made in this case until November, 1958, and payment was made the next month.\n(b) Next, it is appellant\u2019s contention that the one year statute of limitations is tolled by appellees\u2019 failure to pay certain doctor bills. The Commission (and the Circuit Court) found that Dr. Cole\u2019s bill for $40 has not been but should be paid. Although appellant has not specifically pointed out just how and why this would toll the statute, we assume it is because medical bills are a part of compensation and therefore the one year limitation would not begin to run until the last bill is paid. If this contention is sound, then appellant still has time in which to file his new claim. For reasons set out below, we have concluded that the above contention is not tenable.\nTurning to \u00a7 81-1311 we find the employer \u201cshall promptly provide for an injured employee such medical . . . service ... as may be necessary during this period of six [6] months after the injury . . .\u201d This same section also provides that all persons who render such services shall submit the reasonableness of their charges to the Commission for approval. We think the only reasonable and workable interpretation to place on the above provision is that Dr. Cole (in this instance) had to present his bill or claim at least before his claim was finally processed. In this case that date is fixed as December 12, 1958 which was the last day claimant had to appeal from the award of the Referee. Any other interpretation would amount to a nullification of the one year statute of limitations. No one can reasonably contend that a doctor could, by carelessness or connivance, keep the case in suspense for an unlimited time by merely failing to present his bill to the Commission. It seems perfectly obvious that the primary purpose of the one year statute of limitations is to give the claimant that much extra time in which to decide whether he has been fully compensated for his injury, and not for the purpose of paying belated medical bills. The decisive issue therefore is: Does the record show any unpaid bills for which' appellees were liable and which were filed with the Commission before December 12, 1958. Dr. Hundley\u2019s bill can be eliminated (as it was by the Commission and the Circuit Court) on the ground that his services were engaged by claimant\u2019s attorney in preparation for a hearing, and therefore not a responsibility of appellees.\nDr. Cole\u2019s bill presents a different situation. Regardless of whether or not Dr. Cole rendered services chargeable to appellees for which he has not been paid, we fail to find any substantial evidence in the record to show he filed his claim with the Commission prior to November 12, 1958. The testimony of claimant was that he talked with the Commission about the bill after the award, that is, after November 12, 1958. He said he checked with the Commission and they first said it had been paid, and that later they checked and said it had not been paid. At no time and in no way did claimant or any of his witnesses attempt to say Dr. Cole\u2019s bill was duly filed with the Commission. In our opinion the burden was on claimant to make such showing since otherwise his claim was obviously barred by the one year statute of limitations. This burden on appellant becomes more apparent when we consider the positive testimony introduced by appellees. At the hearing before the full commission a letter was dated September. 23, 1960 from the Arkansas Claim Office of the insurer addressed to appellees \u2019 attorney, regarding this claim, was introduced in evidence without objection. It reads: \u201cAttached is photo copy of the only bill Dr. Cole ever submitted to us in connection with this claim. It was paid January 10, 1956.\u201d\nIt is our conclusion from all that has been heretofore said that appellant was barred by the statute of limitations. This conclusion confirms the judgment of the Circuit Court and also the Commission. We find no inconsistency in this opinion and the finding by the Circuit Court and the Commission that appellees are indebted to Dr. Cole in the amount stated. We think the Commission has the authority to order payment of a just claim regardless of whether it was filed in accordance with \u00a7 81-1311 above mentioned.\nAffirmed.\nMcFaddin, and Johnson, JJ., dissent.",
        "type": "majority",
        "author": "Paul Ward, Associate Justice."
      },
      {
        "text": "Ed. F. McFaddin, Associate Justice,\ndissenting.\nIn Ward Furniture Manufacturing Company v. Feather, 234 Ark. 151, 350 S. W. 2d 691, we affirmed the judgment of the Circuit Court which returned a case to the Workmen\u2019s Compensation Commission for further development. I am strongly of the opinion that the same course should be pursued in the case at bar because there are several matters absent from the record in the present case. On the record here before us, I cannot vote to deny the worker his claim for compensation.\nThe Majority Opinion says: \u2018 \u2018 Our view is, that if the claim is not barred by limitations the cause would have to be remanded to the Commission to give claimant an opportunity to produce the required evidence\u201d (to connect claimant\u2019s present condition to the original trauma). I agree with the foregoing statement, and learned counsel for appellee so conceded in the oral argument before this Court. But the Majority holds that Mr. Phillips\u2019 present claim (i.e., the one filed with the Commission on January 18, 1960) is barred by limitations; and it is from such holding that I dissent.\nOn appeal from the Referee, the Full Commission held that the claim was not barred by limitations, saying:\n\u201cThe Referee was in error in holding that the claim was barred by limitations. The determination of the degree of permanent partial disability of the claimant was not made by the Referee until November 12, 1958. The period covered by the degree of disability determined extended for 56 1/4 weeks. This period did not end until about December 15, 1959, and the claim was filed January 18, 1960. Furthermore, not all of the doctor\u2019s bill due Dr. John W. Cole has been paid.\u201d\nThus, the Commission assigned two reasons for holding that the claim was not barred: (a) the award of November 12, 1958 was prospective and did not expire until December 15, 1959; and (b) all of the bill due Dr. John W. Cole had not been paid by the employer. I desire to discuss these two findings made by the Commission, each of which is reversed by the Majority Opinion.\n(a) The Award of November 12, 1958 Was Prospective. In holding that the Commission was in error when it said that the payments due under the award of November 12, 1958 were prospective, the Majority Opinion says: \u201cAlso, there can be no doubt that the $1,406.25 payment was to take care of payments already accrued and not for future accruals. \u2019 \u2019 I cannot see how the Majority can be so positive in the above quoted statement when the Majority Opinion had previously recited: \u201cA record of the proceedings before Referee Calhoun is not contained in the record before us.\u201d How can the Majority be so positive that the payments under the award of November 12, 1958 were not prospective, as the Commission found, when the Majority does not have in the present transcript a copy of the award made by Referee Calhoun on November 12, 1958! The Commission certainly had in its files the original award made by Referee Calhoun in 1958; and, based on that award, the Commission held in this case that the payments were prospective. Does the Majority mean to say that, as a matter of law, an award by the Referee could never be prospective! Unless the Majority goes to that extent, it is overruling the Commission on a question of fact when the record evidence (on which the Commission could have based its ruling) is not before us. So I cannot agree with the Majority Opinion, when it holds that the award was not prospective.\n(b) All of Dr. Cole\u2019s Bill Had Not Been Paid By The Employer. The Commission held that all of Dr. Cole\u2019s bill had not been paid by the employer; and the Majority is reversing the Commission on this question of fact. In the hearing before the Pull Commission, Mr. Phillips testified regarding Dr. Cole\u2019s bill:\n\u201cA. It hasn\u2019t been paid and the time I got it, Mr. Calhoun was in charge then and he asked me to get receipts from all druggists that I owed and doctors. And I got a receipt from the Cole Drug Company, from the Millard Drug Company at Malvern, from the Parker Drug Company at Benton. And they were all paid except Dr. Cole.\nQ. Dr. Cole\u2019s bill hasn\u2019t been paid yet?\nA. No, sir.\nQ. And you\u2019ve talked to him recently about that?\nA. Yes, sir.\u201d\nSo, we have in the record now before us the positive testimony of Mr. Phillips that he got Dr. Cole\u2019s unpaid bill in accordance with instructions from Referee Calhoun, and that the said bill had not been paid. With that positive testimony in the record the Commission found that the bill was unpaid, yet the Majority is reversing; the Commission on this fact question!\nThe last item in the record before the Pull Commission was the remark by Mr. Bray\u2019s attorney, which is as follows:\n\u201cChairman Pope: Do you have anything, Mr, Eiffel?\nMr. Eiffel: No, sir. I haven\u2019t got anything. I note on our Pinal Eeceipt that \u2014 looks like $112.67 in total medical expenses were paid. I don\u2019t know what that\u2019s for. We did send him to several other doctors. I guess that\u2019s the twenty-four dollars they paid to Cole plus the rest of them.\nChairman Pope: Well, let the matter be submitted. \u2019 \u2019\nThis last copied item speaks volumes. The Workmen\u2019s Compensation law requires in \u00a7 81-1319 (h) Ark. Stats:\n\u201cWithin thirty (30) days after the final payment of compensation has been made, the employer shall send to the Commission a notice, in accordance with a form prescribed by the Commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid . . .\u201d\nThat some such final receipt was filed with the Commission is shown by the last colloquy above; but that final receipt is not in this record before us. The Commission had that final receipt before it; and, from that receipt, could have reached the conclusion that Dr. Cole got only $24.00 on his bill and that the remainder had not been paid. In other words, the Commission could have reached the conclusion that there was still $30.00 left unpaid, just as Mr. Phillips has contended all the time. If that $30.00 was shown as unpaid, then the claim is not barred!\nThe Commission, had before it at least two documents that we do not have: (a) Referee Calhoun\u2019s award of November 12, 1958, and (b) the final receipt. With these documents before it, the Commission made a factual finding that the claim of Mr. Phillips was not barred. This Court should not reverse the Commission on a fact issue when we do not have all the facts before us that the Commission had before it.\nTherefore, I dissent from the holding of the Majority and maintain that this claim should be sent back to the Commission for further development, just as was done in Ward Furniture Manufacturing Company v. Reather, first cited herein.\nThis claim was filed with the Commission and not \u201cbefore a Refer\u00e9e, Mathis\u201d as stated in the Majority Opinion.\nThe only thing that the Majority has is a \u201cStatement of the Case\u201d made by Referee Thomasson on September 19, 1960, which reads: \u201cSeveral hearings in this cause culminated in an opinion dated November 12, 1958, in which Referee J. R. Calhoun found that the claimant had a 12 and % per cent permanent partial disability to the body as a whole and awarded him compensation at the rate of $25.00 per week for 56 and 14 weeks, in addition to all reasonable medical expenses incurred as a result of his injury.\u201d\nIt was also shown by Mr. Phillips\u2019 attorney that there had been a continuous effort to collect Dr. Cole\u2019s bill from Mr. Bray. In the colloquy before the Commission, it developed that Mr. Phillips\u2019 attorney had sued Mr. Bray in the Circuit Court for the balance of Dr. Cole\u2019s bill; and the Circuit Court held that it did not have jurisdiction because the bill was to be paid through the Workmen\u2019s Compensation Commission.",
        "type": "dissent",
        "author": "Ed. F. McFaddin, Associate Justice,"
      }
    ],
    "attorneys": [
      "J. B. Milham, for appellant.",
      "Biddick Biff el, for appellee."
    ],
    "corrections": "",
    "head_matter": "Phillips v. Bray.\n5-2539\n351 S. W. 2d 147\nOpinion delivered November 20, 1961.\n[Rehearing denied January 8, 1962.]\nJ. B. Milham, for appellant.\nBiddick Biff el, for appellee."
  },
  "file_name": "0190-01",
  "first_page_order": 212,
  "last_page_order": 222
}