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Second Injury Fund v. Sedgwick James of Arkansas11/9/2005
The Court's ruling in Timberline was applicable to all claims pending at the time it was delivered, to include the present matter.
With respect to the issue of when Randle's healing period ended, the ALJ rejected cross-appellants' argument that the healing period ended as of January 14, 1999. The ALJ noted that the cross-appellants had contested the compensability of Randle's claim from its inception in August 1997; that, consequently, treatment measures recommended for the injury were not implemented until after the December 15, 1999 Commission opinion; and that the January 14, 1999 correspondence from Dr. DeHaan, upon which the employer relied, was written pursuant to an inquiry from Randle's attorney and that it began by noting what needed to be done for Randle's injury. Moreover, the ALJ noted that in his deposition, Dr. DeHaan testified that the impairment ratings contained in the January 14, 1999 letter were estimates and that Randle still had not reached maximum medical improvement as of the deposition date, May 4, 1999. In addition, the ALJ noted that Randle continued to be seen and to receive medical treatment under the care of Dr. DeHaan relative to the August 1997 compensable injury through August 2001. Finally, the ALJ noted that Randle was evaluated by Dr. Barry Green, a Texarkana orthopedic physician, upon Dr. DeHaan's referral, and that Dr. Green found Randle was at maximum medical improvement as of August 28, 2001. The ALJ adopted the August 28, 2001 date as the end of Randle's healing period.
The Commission affirmed and adopted the ALJ's decision in this matter. For its sole point of appeal, the Second Injury Fund contends that the Commission erred in failing to apply the same-employer defense to preclude Second Injury Fund liability. We find no error.
Direct Appeal
The following time line of events is helpful in understanding the issue presented by the Second Injury Fund:
1) August 1997 (Randle is injured)
2) January 20, 1998 (Randle entitled to TTD benefits, i.e., injury becomes compensable)
3) March 5, 1998 (Arkansas Supreme Court decides Timberline International, Inc. v. Nelson, 332 Ark. 165, 964 S.W.2d 357 (1998), which effectively eliminated the "same-employer" defense for the Fund)
4) January 14, 1999 (Letter from Dr. DeHaan relied upon by cross- appellants regarding end of healing period)
5) August 28, 2001 (Dr. Green opines that this date is the end of healing period)
6) June 6, 2003 (Hearing before ALJ)
7) September 2, 2003 (ALJ's opinion)
8) July 13, 2004 (Commission opinion affirming & adopting ALJ's opinion)
The Fund contends that the applicable date for determining whether to apply Timberline is January 20, 1998, which is the date that the injury became compensable and thus the date that the cause of action arose. Accordingly, the Fund argues that on the date the cause of action arose, Timberline had not yet been decided and that the "same- employer" defense was still available to the Fund. It is the Fund's position that because Timberline was not decided when the cause of action arose, it should not be applied at any time in the course of the case.
The employer/carrier counters the Fund's argument by taking the position that the pertinent date is the date that the assessment of permanent disability occurred, i.e., the date upon which the healing period is determined to end, which the employer/carrier contends was January 14, 1999 (DeHaan's letter) and which the ALJ determined was August 28, 2001 (Dr. Green's letter). Either way, those two dates both occurred after the Timberline case w
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