White Cnty. Judge v. Menser, CV-19-148

• Decision Date: 06 November 2019
• Docket Number: No. CV-19-148,CV-19-148
• Citation: 2019 Ark. App. 523,589 S.W.3d 384
• Parties: WHITE COUNTY JUDGE and Association of Arkansas Counties Risk Management Services, Appellants v. Bruce MENSER, Appellee
• Court: Arkansas Court of Appeals

2019 Ark. App. 523

589 S.W.3d 384

WHITE COUNTY JUDGE and Association of Arkansas Counties Risk Management Services, Appellants

v.Bruce MENSER, Appellee

No. CV-19-148

Court of Appeals of Arkansas, DIVISIONS I & II.

Opinion Delivered: November 6, 2019

Rehearing Denied December 11, 2019

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 Menser¹ (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...