{"id":"alj-G701936-2023-11-27","awcc_number":"G701936","decision_date":"2023-11-27","opinion_type":"alj","claimant_name":"Federico Montelongo","employer_name":"Tyson Poultry, Inc","title":"MONTELONGO VS. TYSON POULTRY, INC. AWCC# G701936 NOVEMBER 27, 2023","outcome":"dismissed","outcome_keywords":["dismissed:1","denied:1"],"injury_keywords":["hip","knee","sprain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MONTELONGO_FEDERICO_G701936_20231127.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MONTELONGO_FEDERICO_G701936_20231127.pdf","text_length":9404,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G701936 \n \nFEDERICO MONTELONGO, Employee                                                         CLAIMANT \n \nTYSON POULTRY, INC., Employer                                                     RESPONDENT #1 \n \nTYNET CORPORATION, Carrier/TPA                                                 RESPONDENT #1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND              RESPONDENT #2 \n                                                                                                  \n \n \n OPINION FILED NOVEMBER 27, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \nRespondent #2 represented by CHRISTY L. KING, Attorney, Little Rock, Arkansas; \nalthough not participating in hearing. \n \n \n STATEMENT OF THE CASE \n  \n On November 13, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on September 27, 2023 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   All prior opinions are final. \n\nMontelongo – G701936 \n \n2 \n \n 3.      Respondent  #1  has  accepted  and  paid  permanent  partial  disability benefits \nbased upon a 37% rating to the leg below the hip. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Claimant’s entitlement to additional medical treatment for his compensable \nright knee injury. \n2.     Statute of limitations. \n The   claimant   contends   he   requires   additional   medical   treatment   for   his \ncompensable right knee injury. \n Respondent   #1   contends   that   all   appropriate   benefits   have   been   paid.  \nRespondent #1 raises the statute of limitations as a defense. \n Respondent #2 did not participate in the conference and waived its right to appear \nat the hearing. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non September  27,  2023  and  contained  in  a  pre-hearing  order  filed that  same  date  are \nhereby accepted as fact. \n 2.    Claimant’s claim for additional medical treatment is barred by the statute of \nlimitations. \n\nMontelongo – G701936 \n \n3 \n \n FACTUAL BACKGROUND \n The claimant is a 63-year-old man who suffered a compensable injury to his right \nknee in September 2016.  Claimant’s primary medical provider for his right knee has been \nDr. Sidani whose treatment included a right total knee arthroplasty in 2020.   \n On June 10, 2021, claimant was evaluated by Dr. Sidani and his report indicates \nthat this evaluation was one and a half years after claimant’s right knee arthroplasty and \nthat although claimant was having some pain and weakness in his knee he was much \nbetter  than before  surgery.    His examination  showed  no obvious  effusion;  full  range of \nmotion;  slight  laxity  at  mid  flexion,  but  no  instability;  balanced  ligaments;  and  normal \ntracking  of  the  patella.    Dr.  Sidani  also  noted  that  claimant’s  x-rays  showed  a  good \nposition and alignment of his right knee prosthesis.  There were no signs of loosening or \nfailure. Dr. Sidani noted that claimant was doing well and had very little, if any, instability.  \nDr. Sidani indicated that he and claimant discussed the possibility of the use of a brace, \nbut claimant stated that his knee did not bother him enough to wear a brace.  Dr. Sidani \nrecommended continued observation, full duty work and follow up as needed.   \n Claimant returned to Dr. Sidani on November 16, 2021 with right knee pain.  Dr. \nSidani noted that over the last two weeks claimant began having some stabbing pain in \nthe  medial  side  of  his  knee.    Dr.  Sidani  diagnosed  claimant  with  an  MCL  sprain and \nrecommended  a  home  exercise  program  and  the  use  of  a  knee  brace  while working.  \nClaimant  returned  to  Dr.  Sidani  on  December  20,  2021,  and  stated  that  his knee  was \nmuch better.  Dr. Sidani’s examination showed a full range of motion without effusion.  Dr. \nSidani stated: \n   \n\nMontelongo – G701936 \n \n4 \n \n  Right MCL sprain, status post total knee arthroplasty. \n  I feel it is healed.  It shows no instability.  Good strength, \n  full range of motion.  We will release from our care today \n  and for this injury according the AMA Guidelines qualifies \n  for 0% additional disability for his right total knee arthro- \n  plasty. \n \n \n Claimant did not return to Dr. Sidani for any right knee problems until August 15, \n2023, when he was evaluated for right knee pain.  Dr. Sidani gave claimant an injection \non that date and prescribed anti-inflammatories and physical therapy. \n Respondent has not accepted liability for the additional medical treatment provided \nby Dr. Sidani on August 15, 2023.  As a result, claimant has filed this claim contending \nthat he is entitled to additional medical treatment for his compensable right knee injury. \n \nADJUDICATION \n Claimant  contends  that  he  is  entitled  to  additional  medical  treatment  for  his \ncompensable right knee injury.  Respondent contends that claimant’s claim for additional \nmedical treatment is barred by the statute of limitations. \n The time limitation for requesting additional compensation benefits is codified at \nA.C.A. §11-9-702(b)(1) which states: \n  In cases in which any compensation, including disability or \n  medical, has been paid on account of injury, a claim for \n  additional compensation shall be barred unless filed with \n  the commission within one (1) year from the date of the \n  last payment of compensation or two (2) years from the \n  date of the injury, whichever is greater. \n \n \n Claimant has the burden of proving by a preponderance of the evidence that he \nacted within the time allowed for filing a claim for additional compensation.  Kent v. Single \n\nMontelongo – G701936 \n \n5 \n \nSource Transp., Inc., 103 Ark. App. 151, 287 S.W. 3d 619 (2008).   \n It is the furnishing of medical services, not the payment therefor, which constitutes \npayment of compensation.  Heflin v. Pepsi Cola Bottling Company, 244 Ark. 195, 198, \n424 S.W. 2d 365, 367 (1968).  Claimant is “compensated” by the furnishing of medical \nservices and not by the payment of the charges therefore.  Id.; see also Plante v. Tyson \nFoods, Inc., 319 Ark. 126, 129, 890 S.W. 2d 253, 255 (1994).   \n In this particular case, respondent submitted payment records indicating that it last \npaid  compensation  for  the  medical  treatment  claimant  received  from  Dr.  Sidani  on \nDecember 20, 2021.  Therefore, claimant had one year from December 20, 2021, to file \na claim for additional compensation benefits.  The parties have agreed that claimant did \nnot file an AR-C requesting additional compensation benefits but that claimant requested \na  hearing  for  additional  benefits  by  letter  dated  August  23,  2023.   Clearly,  this  letter \nrequesting additional compensation benefits was more than one year from the date of last \npayment  of  compensation  on  December  20,  2021.    Therefore,    more than  one  year \npassed from the last payment of compensation on December 20, 2021 until the request \nfor additional compensation benefits on August 23, 2023 and pursuant to A.C.A. §11-9-\n702(b)(1), this claim for additional compensation benefits is barred.   \n In  reaching  this  decision,  I  note  that  the  documentary  evidence  does  contain \nnumerous medical records from Dr. Sidani regarding his treatment for parts of his body \nwhich did not include his right knee.  Claimant has acknowledged that during those visits \nDr. Sidani did not treat his right knee.  Accordingly, there is no question that claimant did \nnot seek any additional medical treatment for his right knee from December 20, 2021 until \nAugust 15, 2023.   \n\nMontelongo – G701936 \n \n6 \n \nORDER \n Claimant’s claim for additional compensation benefits is barred by the statute of \nlimitations.  Claimant’s request for additional compensation was not filed until August 23, \n2023.  This was more than one year from the date of last payment of compensation which \noccurred  on  December  20,  2021,  for  medical  treatment  provided  by  Dr.  Sidani.  \nAccordingly, claimant’s claim for additional compensation benefits is hereby denied and \ndismissed. \n Respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $224.30. \n IT IS SO ORDERED. \n \n     _________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G701936 FEDERICO MONTELONGO, Employee CLAIMANT TYSON POULTRY, INC., Employer RESPONDENT #1 TYNET CORPORATION, Carrier/TPA RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED NOVEMBER 27, 2023 Hearing before ADMINISTRATIVE...","fetched_at":"2026-05-19T23:00:50.558Z","links":{"html":"/opinions/alj-G701936-2023-11-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/MONTELONGO_FEDERICO_G701936_20231127.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}