NASH v. FARM FRESH CATFISH

OPINION AND ORDER

The claimant appeals an opinion and order filed by the administrative law judge on September 30, 1993. In that opinion and order, the administrative law judge found that this claim is barred by the statute of limitations. After conducting a de novo review of the entire record, we find that the claim is barred by the statute of limitations. Therefore, we find that the administrative law judge's decision must be affirmed.

The claimant was employed by the respondent employer as a security guard. On February 13, 1988, he sustained an admittedly compensable injury when he was bitten on his right foot by something, possibly a spider. His right foot subsequently became severely swollen and red, with redness extending up his right leg. He was initially treated by Dr. J. D. Rankin, a general practitioner. However, when the swelling and redness worsened, Dr. Rankin referred him to Dr. John Moore, a general surgeon. Dr. Moore admitted the claimant to the hospital with a diagnosis of severe infection and abscess of the right foot. The claimant was in the hospital through March 12, 1988, and, while he was in the hospital, Dr. Moore surgically drained and performed a debridement procedure on the claimant's right foot on two occasions. The claimant's foot improved, and Dr. Moore released him to return to work on May 16, 1988. Dr. Moore did not see the claimant again until February 19, 1990.

However, the claimant continued to experience problems with swelling and drainage in his right foot almost continuously. According to his testimony, the foot began to drain again approximately two weeks after he returned to work on May 16, 1988, and he testified that the foot drained almost constantly afterward, although it would improve somewhat during periods when he was taking antibiotics. Nevertheless, he continued to work, and he did not seek any further medical treatment until April 20, 1989, when he sought treatment from the Veterans Administration. He was initially examined by Dr. Fowler. X-rays taken at that time indicated destructive changes in the foot, which is consistent with an infection of the bone or osteomyelitis. Consequently, Dr. Fowler referred him to the orthopedic department, where he was treated by a number of physicians, including Dr. Ruth Nelson Thomas, Dr. Barber, and Dr. Barnes. Dr. Thomas first examined the claimant on May 4, 1989. The claimant had been on antibiotics for a period of time, and she testified that his foot appeared normal at that time. However, she also testified that osteomyelitis can never be eradicated with antibiotics. In fact, she testified that osteomyelitis cannot be eradicated by any means other than the surgical removal of the bone. She also testified that she advised the claimant of this on May 25, 1989, and she testified that the claimant declined surgical amputation at that time. In this regard, the claimant's left leg was amputated several years ago, and he apparently declined amputation due to the limitations the additional amputation would create.

The claimant continued to experience problems with his right foot swelling and draining, and he continued to return to the Veteran's Administration for treatment. He was next treated by Dr. Barnes on December 26, 1989, and her report indicates that the claimant again declined surgery. According to the claimant's testimony, Dr. Barnes advised him that amputation should be performed. He was also treated at the Veteran's Administration for swelling and drainage in August of 1990, and he was placed in a cast for approximately 15 days at that time.

The claimant returned to Dr. Moore on February 17, 1990, complaining of recurrent infections and swelling. He informed Dr. Moore at that time that the Veteran's Administration physicians had advised him to have his foot amputated at the ankle, and, in light of the amputation of his left extremity, Dr. Moore recommended that he avoid any amputation of the right foot. The claimant returned to Dr. Moore on February 7, 1991, with a severe infection of the right foot, and Dr. Moore diagnosed a severe cellulitis and osteomyelitis of the right foot. When the foot failed to respond to conservative measures, Dr. Moore amputated portions of the claimant's right foot, including the great toe and the adjacent toe.

The statute of limitations for the filing of claims for additional compensation is set forth in Ark. Code Ann. § 11-9-704 (b) (1987). This subsection provides that claims 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 the injury, whichever is greater." The furnishing of medical treatment constitutes compensation for the purposes of this statute, and it is the furnishing of medical treatment, not the actual payment for those services, which constitutes the payment of compensation for the purposes of this statute. Heflin v. Pepsi Cola Bottling Co., 195 Ark. 244, 424 S.W.2d 365 (1969); Cheshire v. Foam Molding, 37 Ark. App. 78, 822 S.W.2d 412 (1992). In this regard, the key is that the employer must furnish the medical treatment in order to toll the limitations period. See, McFall v. U.S. Tobacco Co., 246 Ark. 43, 434 S.W.2d 838 (1969). Consequently, the receipt of medical treatment is not sufficient, standing alone, to prevent the statute of limitations from barring a claim. Instead, it must be shown that the employer furnished the medical services.

In the present claim, the parties stipulated that the last indemnity payment was made on June 2, 1988, for the period ending May 16, 1988. The parties also stipulated that the last payment for medical services was made on January 16, 1989, and that the last medical services for which the respondents paid were furnished on May 13, 1988. In addition, the parties stipulated that the letter requesting benefits, which has been treated as a claim for additional compensation, was filed with the Commission on May 31, 1991. The claimant testified that the respondent employer was aware that he was receiving treatment for his right foot from the Veteran's Administration. However, he admitted that he never requested that the respondents furnish any medical treatment or indemnity compensation for time he missed from work as a result of the problems he experienced prior to the filing of the claim on May 31, 1991. Therefore, it cannot be said that the respondents furnished any of the medical treatment received by the claimant after May 13, 1988. Consequently, over two years from the date of the injury on February 13, 1988, and over one year from the last payment of compensation passed prior to the filing of the claim with the Commission. Therefore, the statute of limitations bars this claim unless the statute was somehow tolled.

In this regard, relying on the so called latent injury rule, the claimant contends that the statute was tolled until he first realized that amputation was the only option for resolution of the condition. Under the latent injury rule, the statute of limitations does not begin to run until the employee knows or should reasonably be expected to be aware of the extent or nature of his injury. St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983);Woodard v. ITT Higbie Manufacturing Co., 271 Ark. 498, 609 S.W.2d 115 (Ark.App. 1980). The Arkansas Supreme Court has defined "latent" as "that which is present without showing itself." Sanderson Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796 (1949). In addition, in the context of Second Injury Fund liability, the Court of Appeals has discussed latent conditions as follows:

"Latent condition is not defined by statute. The phrase "latent injury" has ordinarily arisen in workers' compensation cases in the context of the statute of limitations. The word "latent" applies to that which is present without showing itself. Latent means hidden, concealed, or dormant. An injury is latent until its substantial character becomes known or until the employee knows or should reasonably be expected to be aware of the full extent and nature of his injury. The question of whether an injury is latent is one of fact. . . ."

Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992). However, when the substantial character of the injury becomes known, then the claimant must file his claim within the time provided by the statute, or the claim will be barred by the statute of limitations. Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983). Consequently, the latent injury rule is not applicable to prevent the bar of the statute where the substantial character of the injury is known from the beginning and only the severity of the condition has changed, necessitating more extensive treatment methods. Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); McDonald Equipment Co. v. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989); St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983).

In the present claim, the same symptoms have persisted almost from the beginning, although the severity of the symptoms may have increased. From the beginning, the claimant's condition has been characterized by swelling, redness, and drainage. Furthermore, although Dr. Moore indicated that the foot had completely healed when he released the claimant to return to work on May 16, 1988, the claimant admitted that the symptoms returned, including the drainage, within two weeks after he returned to work. Moreover, the claimant admitted that he experienced these symptoms almost continuously thereafter, although antibiotics did provide temporary relief. Therefore, we find that the claimant's condition was not latent and that the latent injury rule is not applicable to prevent the statute of limitations from barring this claim.

Furthermore, even assuming the latent injury rule might have some application to this claim, we would find that the claimant knew of, or should have become aware of the substantial character of his injury at least by May 25, 1989. By that time the physicians at the Veteran's Administration had opined that the infection had invaded that bone, resulting in osteomyelitis. Moreover, Dr. Thomas testified that she discussed osteomyelitis with the claimant at least by May 25, 1989, and she testified that she advised him that removal of the bone is the only means to eradicate osteomyelitis and that antibiotics only temporarily suppresses the symptoms of the condition. In addition, the claimant's testimony indicates that he was aware that Dr. Thomas advised him that amputation was a possibility on May 25, 1989, and that he desired to delay that possibility as long as possible due to the amputation of his left leg.

In reaching this result, we note that Dr. Moore has opined that the claimant could not have been reasonably expected to be aware of the full extent of the injury until February 7, 1991, when the doctor advised him that amputation was absolutely necessary and the only option. In this regard, Dr. Moore notes that he led the claimant to believe that he would experience no further complications when he released him on May 16, 1988. However, Dr. Moore did not see the claimant again until February of 1990, and he was not aware of the recurrent problems that the claimant was experiencing or his treatment at the Veterans Administration. Furthermore, Dr. Moore concedes that Dr. Thomas' May 25, 1989, report indicates that she discussed amputation with the claimant at that time and that he declined the surgery. Moreover, in light of the evidence establishing that the claimant was aware that amputation was a possibility at some point, the fact that amputation did not become absolutely necessary and the only option until later does not prevent the statute of limitations from barring the claim under the latent injury rule.

Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the statute of limitations bars this claim. Therefore, we find that the administrative law judge's decision must be affirmed. This claim is denied and dismissed.

IT IS SO ORDERED.