                                Cite as 2017 Ark. App. 126


                ARKANSAS COURT OF APPEALS

                                      DIVISION III
                                        CV-16-743
                                      No.


                           Opinion Delivered: March 1, 2017
NUCOR YAMATO STEEL
COMPANY AND SEDGWICK       APPEAL FROM THE ARKANSAS
CLAIMS MANAGEMENT SERVICE WORKERS’ COMPENSATION
                APPELLANTS COMMISSION
                           [NO. F910330]
V.


LAWRENCE L. KENNEDY
                   APPELLEE AFFIRMED


                            KENNETH S. HIXSON, Judge

       Nucor Yamato Steel Company (Nucor) appeals from an order of the Workers’

Compensation Commission that awarded additional medical treatment to appellee

Lawrence Kennedy for treatment of his compensable left carpal tunnel syndrome, to include

carpal tunnel release surgery. On appeal, Nucor argues that Mr. Kennedy’s claim for

additional medical benefits was barred by the statute of limitations. Nucor argues in the

alternative that additional medical treatment for Mr. Kennedy’s left carpal tunnel syndrome

was not reasonable and necessary. We affirm.

       In appeals involving claims for workers’ compensation, the appellate court views the

evidence in the light most favorable to the Commission’s decision and affirms the decision

if it is supported by substantial evidence. Williams v. Ark. Dep’t of Cmty. Corr., 2016 Ark.

App. 427, 502 S.W.3d 530. Substantial evidence is evidence that a reasonable mind might

accept as adequate to support a conclusion. Id. The Commission has the authority to accept
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or reject medical opinions, and its resolution of the medical evidence has the force and effect

of a jury verdict. Id. Finally, this court will reverse the Commission’s decision only if it is

convinced that fair-minded persons with the same facts before them could not have reached

the conclusions arrived at by the Commission. Id.

       Mr. Kennedy began working for Nucor in 1992 and was assigned to various

positions. He eventually became a “coil crimper,” which is a hand-intensive job. The

parties stipulated that Mr. Kennedy sustained compensable bilateral carpal tunnel syndrome

on August 8, 2009. Mr. Kennedy came under the care of Dr. William Bourland, who on

August 19, 2009, reported that right-wrist release surgery would be performed first,

followed by left-wrist release surgery after Mr. Kennedy had recovered from the first

surgery. Dr. Bourland performed right-wrist release surgery on November 17, 2009. After

that, Mr. Kennedy continued to be treated for both right- and left-wrist carpal tunnel, but

release surgery on his left wrist was not performed.

       The parties had a previous dispute in this case over Mr. Kennedy’s entitlement to

additional medical treatment. After a hearing in that proceeding, the administrative law

judge issued an opinion on March 13, 2013, finding that Mr. Kennedy was entitled to

additional medical treatment for his bilateral carpal tunnel syndrome. Nucor did not appeal

from that decision.

       Subsequent to the March 2013 hearing where the additional medical treatment was

ordered, on August 5, 2013, Dr. Richard Wirges evaluated Mr. Kennedy and gave the

impression of mild right carpal tunnel syndrome and mild to moderate left carpal tunnel

syndrome. Mr. Kennedy continued to experience problems with his right hand, and Dr.


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Wirges performed a repeat right carpal tunnel release surgery on October 16, 2013. After

a follow-up visit on October 29, 2013, Dr. Wirges reported that once Mr. Kennedy’s right

hand was healed, he would reevaluate the situation and decide whether the left hand would

benefit from surgery.

       In a report dated November 26, 2013, Dr. Wirges noted that Mr. Kennedy’s left

carpal tunnel had so far responded to conservative treatment. Dr. Wirges further indicated

that Mr. Kennedy wanted to “get through his right hand first to make sure it does well”

before discussing further treatment to the left hand. On June 10, 2014, Dr. Michael Chesser

evaluated Mr. Kennedy and noted continued mild to moderate left carpal tunnel syndrome.

On October 31, 2014, Dr. Wirges performed an injection to Mr. Kennedy’s left carpal

tunnel. On December 9, 2014, Dr. Wirges reported that the left-hand injection had

provided some relief to Mr. Kennedy, but that his symptoms were beginning to return.

Dr. Wirges gave the opinion that Mr. Kennedy would benefit from a left carpal tunnel

release. The last report authored by Dr. Wirges came on May 11, 2015, wherein Dr. Wirges

gave the following history:

       This is a 54-year-old gentleman well known to us is a problem is the right upper
       extremity was started after carpal tunnel release [sic]. At that time he was also
       diagnosed with left carpal tunnel syndrome, [he decided] not to undergo/proceed
       with a left carpal tunnel release because his right hand was not doing well. Ever since
       that we’ve been dealing with the right side to try to get [it] better, but the left side
       has had symptoms the whole time. He is now at the point [where] the right side is
       well enough to undergo the left carpal tunnel release. He did have a positive
       improvement with the injection to the left side so we scheduled for a left carpal
       tunnel release back in December. However, this was denied. He is now back today
       with the same symptoms and is still ready for left carpal tunnel release. He is still
       willing and able to go through a left carpal tunnel release surgery. He has no change
       in exam from back in December.



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       On June 9, 2015, Mr. Kennedy filed a written claim asking for surgery and additional

pain medication for treatment of his left carpal tunnel syndrome. Nucor contested the claim

for additional benefits, and a hearing was held on October 2, 2015. The Commission

subsequently ruled that Mr. Kennedy proved entitlement to additional treatment for his left

carpal tunnel syndrome, to include release surgery, and that Mr. Kennedy’s claim for

additional treatment was not barred by the statute of limitations.

       Nucor’s first argument on appeal is that the Commission erred in finding that the

applicable statute of limitations did not bar Mr. Kennedy’s claim for additional benefits.

Arkansas Code Annotated section 11-9-702(b)(1) (Repl. 2012) provides:

         (b) TIME FOR FILING ADDITIONAL COMPENSATION.
         (1) In cases in which any compensation, including disability or medical, 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 the injury, whichever is greater.

Nucor contends that Mr. Kennedy’s claim for additional benefits was barred by the one-

year limitations period set forth above.

       We hold that Mr. Kennedy’s claim for additional benefits for medical treatment of

his left carpal tunnel syndrome was not barred by the statute of limitations. The one-year

limitations period begins to run from the last payment of compensation, which the supreme

court has held means from the date of the last furnishing of medical services. Plante v. Tyson

Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). The take-away from Plante is that

although the statute contains no express tolling provision for an additional medical-benefits

claim in particular, our supreme court has interpreted the statute to mean that the one-year

limitations period may not begin to run until the last payment of compensation, which


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means from the date medical services were last provided. Nabholz Constr. Corp. v. White,

2015 Ark. App. 102.

       In this case it was stipulated that Mr. Kennedy sustained compensable bilateral carpal

tunnel syndrome on August 8, 2009. Since that time, Nucor provided the appellant with

ongoing medical treatment that included the services of several specialists, numerous

diagnostic studies, and a myriad of other medical-treatment modalities to include

medications, therapies, and surgeries. With respect to his left carpal tunnel syndrome, the

record reflects that Mr. Kennedy was provided medical services through at least October

31, 2014, when he was administered injections by Dr. Wirges. As this date was well within

the time that Mr. Kennedy made his claim for additional benefits requesting release surgery

for his left carpal tunnel, his claim for additional benefits was timely filed.

       We observe that, in Nucor’s argument under this point, it places great weight on

what it claims is an erroneous date contained in the Commission’s opinion. In particular,

the Commission found that Nucor’s last payment of permanent partial disability benefits

(Mr. Kennedy had been assigned a 10% permanent anatomical rating) was on December 2,

2011. Nucor asserts that this date was incorrect and directs us to documentation purportedly

showing that the Commission was referencing a date concerning a proposed but

unconsummated settlement between the parties. Whether the Commission used a wrong

date in 2011 is irrelevant for purposes of this appeal. That argument may have been relevant

in the March 2013 hearing, but Nucor chose not to appeal that decision. The doctrine of

res judicata applies in workers’ compensation cases, Stallworth v. Hayes Mechanical, Inc., 2013

Ark. App. 188, and res judicata bars not only the relitigation of claims litigated in the first


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proceeding, but also those which could have been litigated. Parker v. Johnson, 95 Ark. App.

213, 236 S.W.3d 1 (2006). If Nucor wanted to raise a statute-of-limitations issue regarding

an alleged incorrect date in the 2013 proceeding, it was required to do so then. It is too

late to raise it now. We note that Nucor makes no argument on appeal that the one-year

limitations period expired sometime after the ALJ’s March 13, 2013 opinion awarding

additional medical benefits was issued.

       Nucor’s remaining argument is that additional medical treatment for Mr. Kennedy’s

left carpal tunnel syndrome is not reasonable or necessary. Arkansas Code Annotated section

11-9-508(a) provides that an employer is required to provide for an injured employee such

medical services as may be reasonably necessary in connection with the injury received by

the employee. It is the employee’s burden to prove by a preponderance of the evidence

that medical treatment is reasonable and necessary. Goyne v. Crabtree Contracting Co., 2009

Ark. App. 200, 301 S.W.3d 16. Nucor contends that Mr. Kennedy decided to forego left-

wrist release surgery for a period of six years, that the proposed surgery was based mostly on

his subjective complaints, and that Mr. Kennedy failed to meet his burden of proving

entitlement to the surgery.

       We hold that substantial evidence supports the trial court’s award for additional

medical treatment to include the recommended left carpal tunnel release surgery. What

constitutes reasonably necessary treatment is a question of fact for the Commission, which

has the duty to use its expertise to determine the soundness of the medical evidence and to

translate it into findings of fact. Wise v. Village Inn, 2015 Ark. App. 406, 467 S.W.3d 186.

Objective nerve-conduction studies confirmed the ongoing presence of carpal tunnel


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syndrome in both of Mr. Kennedy’s wrists, and Dr. Wirges recommended left carpal tunnel

release surgery for treatment of the compensable condition. In his reports, Dr. Wirges

indicated that the initial focus had been on the right carpal tunnel, and that they were

waiting to see how the right side responded to the surgeries before scheduling the left-side

release surgery.   It was within the Commission’s province to credit Dr. Wirges’s

recommendation of left carpal tunnel release surgery, which Mr. Kennedy testified he

wished to undergo because he did not want to take medication for the rest of his life.

Leaving the resolution of medical opinions to the Commission, as we must, we affirm its

finding that additional medical treatment for Mr. Kennedy’s left carpal tunnel syndrome was

reasonable and necessary.

       Affirmed.

       HARRISON and BROWN, JJ., agree.

       Jason Ryburn, for appellants.

       No response.




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