{"id":"alj-G305617-2024-10-03","awcc_number":"G305617","decision_date":"2024-10-03","opinion_type":"alj","claimant_name":"Raphael Gunderman","employer_name":"City Of Cabot","title":"GUNDERMAN VS. CITY OF CABOT AWCC# G305617 October 04, 2024","outcome":"dismissed","outcome_keywords":["modified:1","dismissed:3","granted:1","denied:1"],"injury_keywords":["ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GUNDERMAN_RAPHAEL_G305617_20241003.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GUNDERMAN_RAPHAEL_G305617_20241003.pdf","text_length":10098,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G305617  \n \n \nRAPHAEL J. GUNDERMAN,  \nEMPLOYEE                                                   CLAIMANT \n \nCITY OF CABOT,  \nEMPLOYER                                                     RESPONDENT \n            \nARK. MUNICIPAL LEAGUE SELF-INSURED  \nWORKERS’ COMPENSATION PROGRAM/ \nARK. MUNICIPAL LEAGUE  \nINSURANCE CARRIER/TPA                                        RESPONDENT      \n                                   \n                                                                                                                                                                                                                                  \n \nOPINION FILED OCTOBER 4, 2024 \n \nHearing conducted on Wednesday, October 2, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas, 72203. \n \nThe claimant, Mr. Raphael J. Gunderman, of Cabot, Lonoke County, Arkansas, appeared pro se. \n \nThe respondents were represented by the Honorable Mary K. Edwards, attorney at law, Arkansas \nMunicipal League, Little Rock, Pulaski County, Arkansas. \n \n \nINTRODUCTION \nIn  the  prehearing  order  filed  September  13,  2024,  the  parties agreed  to  the  following \nstipulations, which they modified and affirmed on the record at the hearing: \n1. The   Arkansas   Workers’ Compensation   Commission   (the   Commission)   has \njurisdiction over this claim. \n \n2. The  employer/employee/carrier-TPA  relationship  existed at  all  relevant  times \nincluding July 17, 2013, when the claimant sustained an admittedly compensable \ninjury  to  his right  ankle/right  foot for  which  the  respondents  paid  medical  and \nindemnity benefits.  \n \n3. The claimant’s average weekly wage (AWW) was $657.20, which is sufficient to \nentitle him to weekly compensation rates of $438.00 for temporary total disability \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n2 \n(TTD), and $329.00 for permanent partial disability (PPD) benefits. \n \n4. The respondents last paid TTD benefits on March 6, 2024, and last paid medical \nbenefits on July 29, 2024. \n \n5. The  respondents  have  controverted  this  claim for  additional  TTD  benefits in  its \nentirety.  \n  \n6. The  parties  specifically  reserve any  and  all  other  issues for future determination \nand/or litigation. \n \nThe parties agreed to correct and/or modify Stipulation No. 4 above to reflect the respondents last \n \npaid medical benefits on August 8, 2024. (Commission Exhibit 1 at 2; Hearing Transcript).  \n \n     Pursuant to the parties’ mutual agreement the issues to be litigated at the hearing were:  \n \n1. Whether the claimant’s request for additional benefits is barred by the applicable statute \nof limitations (S/L) of Ark. Code Ann. § 11-9-702 (2024 Lexis Replacement). \n \n2. If the claimant’s request  for  additional  TTD  benefits  is not barred  by  the  applicable \nS/L, whether and to what extent the claimant is entitled to additional TTD benefits.  \n \n3. If the claimant hires an attorney to represent him in this claim, whether and what extent \nthe claimant’s attorney is entitled to a controverted fee on these facts. \n \n(Comms’n Ex. 1 at 2-3; Hearing Tr.). The claimant also agreed on the record that the respondents’ \ncontentions his claim for additional medical and TTD benefits was in fact barred by the applicable \nS/L. \n        The  hearing  record  consists  of  the  hearing  transcript,  as  well  as any and  all exhibits \ncontained therein and/or attached thereto. \n \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n3 \nSTATEMENT OF THE CASE \n In  the  prehearing  order  filed  September  13,  2024,  the  claimant had contended the \napplicable S/L did not  bar  his  request  for  additional medical  or TTD  benefits.  He had further \ncontended he was entitled to additional TTD benefits from on or about March 7, 2024, through a \ndate  yet  to  be  determined. However,  at  the  outset  of  the  hearing  in  his  initial  comments  on  the \nrecord wherein he stated his position at the hearing, the claimant advised the ALJ he now agreed \nwith  the  respondents  the  S/L  had  in  fact  run  and,  therefore,  he  had  decided  to  concede  the \napplicable S/L barred his claim for any additional medical or TTD benefits. Finally, the claimant \nadvised on the record at the hearing he was in fact receiving medical treatment on his right foot \nand ankle from time to time, and he had private health insurance which had been paying for his \nmedical treatment. (Comms’n Ex. 1 at 3; Hearing Tr.).  \n Of  course,  the respondents had contended the  claimant is  not  entitled  to  any  additional \nmedical or TTD benefits. On December 18, 2015, the claimant filed a Form AR-C for additional \nbenefits with the Commission; however, on the Form AR-C the claimant only checked the boxes \nindicating  he  was  requesting  PPD  benefits,  mileage,  and  out-of-pocket expenses,  and  he \nspecifically  failed  to  indicate  or  state  he  was  requesting  additional  TTD  or  medical  benefits. \nConsequently, the respondents contended that as their indemnity payment log demonstrates, there \nhave been gaps in the request for and payment of TTD benefits during the period from 2014-2015, \nand from 2015-2022. The respondents further contended, as their medical expenses payment log \nindicates,  there  also  have  been  gaps  in  the  claimant’s  medical  treatment  from  2017-2019. \nTherefore, they contended the applicable S/L ran on August 24, 2018, which they corrected and \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n4 \nmodified on the record at the hearing to contend the S/L ran as of November 29, 2018. (Comms’n \nEx. 1 at 3; Hearing Tr.)  \n     Finally, the respondents ontended they do not owe any additional TTD or medical benefits. \nWhile the respondents  acknowledged they  continued  to  pay  for  medical  treatment  and TTD \nbenefits after the date the applicable S/L ran, they emphasized they are not asking for the claimant \nto repay those benefits. The respondents cited the Arkansas Court of Appeals holding in Slaughter \nv. City of Fayetteville, 2022 Ark. App. 139; 643 S.W.3d 809 (Ark. App. 2022), for the proposition \nthat even if a respondent continues to pay benefits after the date the S/L runs, this fact “does not \nrevive the statute of limitations on a claim that has already run.” Slaughter, 2022 Ark. App.  At \n137; 643 S.W.3d at 814. In addition, the respondents contend that any additional medical treatment \nthe claimant has received is not related to nor reasonably necessary in light of his July 17, 2013, \ncompensable right  ankle/right  foot injury. Finally,  the  respondents  reserved the  right  to  file  an \nAmended Response to the Prehearing Questionnaire or other appropriate  pleading and to allege \nany  further  affirmative  defense(s)  that  might  be  available  upon the  completion  of  any  and  all \nfurther investigation and/or discovery. (Comms’n Ex. 1 at 3-4; Hearing Tr.). \n     At the hearing, after the claimant conceded the applicable S/L barred his claim for additional \nmedical and TTD benefits the respondents’ attorney made a motion this claim should be dismissed \nwith prejudice. The claimant stated he did not object to the respondents’ motion and, therefore, the \nALJ granted it. (Hearing Tr.) \nDISCUSSION \n     The applicable S/L of Ark. Code Ann. Section 11-9-702(b)(1) (2024 Lexis Replacement) \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n5 \n states: \n             In cases in which any compensation, including disability or \n             medical, has been paid on account of injury, a claim for additional \n             compensation shall be barred unless filed with the commission \n             within one (1) year from the date of the last payment of compen- \n             sation or two (2) years from the date of the injury, whichever is \n             greater. \n \nIn addition, as our court of appeals held in Slaughter, supra, it is well-settled in Arkansas workers’ \ncompensation law that the fact a respondent inadvertently pays medical and/or indemnity benefits \nafter the date the applicable S/L has run does not serve to resurrect a claim that is otherwise barred \nby the S/L. \n     The  totality  of  the  credible  evidence  of  record  herein – including  but  not  limited  to  the \nclaimant’s  candid,  sincere  recognition  and  admission  of  the  fact  his  claim  is  barred  by  the \napplicable S/L of Ark. Code Ann. Section 11-9-702(b)(1) – conclusively demonstrates his claim \nfor  additional  medical  and  TTD  benefits  is  so  barred. Moreover,  the  totality  of  the  credible \nevidence of record conclusively demonstrates this claim for additional medical and TTD benefits \nshould be dismissed with prejudice pursuant to the respondents’ oral motion made at the hearing, \nto which the claimant expressly stated he had no objection. (Hearing Tr.; Respondents’ Exhibit 1; \nRespondents’ Exhibit 2). \n     Therefore, for all the aforementioned reasons I hereby make the following:                              \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The  stipulations  to  which  the  parties  agreed  in  the  prehearing  order  filed \nSeptember 13, 2024, which the parties’ corrected and modified on the record at \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n6 \nthe hearing, hereby are accepted as facts.  \n \n2. The claimant voluntarily and of his own accord, and in the absence of any duress \nor coercion whatsoever, honestly and sincerely conceded his claim for additional \nmedical  and  TTD  benefits  herein  is  barred  by  the  applicable  S/L  of Ark.  Code \nAnn. Section  11-9-702(b)(1).  Therefore,  consistent  with  the  applicable  law,  the \nclaim is so barred.  \n \n3. The claimant’s claim for additional medical and TTD benefits hereby is denied \nand dismissed with prejudice.  \n \n     IT IS SO ORDERED.                       \n              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G305617 RAPHAEL J. GUNDERMAN, EMPLOYEE CLAIMANT CITY OF CABOT, EMPLOYER RESPONDENT ARK. MUNICIPAL LEAGUE SELF-INSURED WORKERS’ COMPENSATION PROGRAM/ ARK. MUNICIPAL LEAGUE INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 4, 2024 Hearing conducted on We...","fetched_at":"2026-05-19T22:47:18.378Z","links":{"html":"/opinions/alj-G305617-2024-10-03","pdf":"https://labor.arkansas.gov/wp-content/uploads/GUNDERMAN_RAPHAEL_G305617_20241003.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}