dissenting. I dissent because I strongly disagree with the majority’s conclusion that the appellant’s claim was barred by the statute of limitations because medical services were not furnished after April of 1989. There is no dispute concerning the essential facts: the appellant injured his knee in an industrial accident in 1988, underwent corrective knee surgery in 1988, returned to the surgeon for scheduled evaluation of the surgical results in 1989 and 1990, returned to the surgeon again in 1991, learned that the 1988 surgical repair had failed, and filed a claim for additional compensation two months later requesting the alternative treatment recommended by his surgeon, a synthetic ligament replacement. Nevertheless, the Commission denied the appellant’s request for additional compensation on the grounds that the 1989 and 1990 examinations by the appellant’s surgeon or office staff did not constitute the furnishing of medical treatment because the employer was unaware of those return visits. In support of its decision, the majority cites McFall v. United States Tobacco Co., 246 Ark. 43, 436 S.W.2d 838 (1969). I disagree because the McFall case is clearly distinguishable from the case at bar.
McFall involved a claimant who continued to receive treatment during the limitations period, and in that sense it is analogous to the circumstances in the present case. However, the majority fails to note a crucial distinction: the treatment at issue in McFall was rendered by a second doctor of whom the employer was unaware, obtained by the claimant on his own initiative. The fact that the treatment in McFall was rendered following an unauthorized change of physician is the crux of the opinion, which must be considered in order to comprehend the Court’s statement that they were “unable to see how an employer could furnish medical treatment without knowing, and without reason to know, that he is doing so.” McFall, supra, 246 Ark. at 47.
Our review in the present case is not limited to determining whether there is any substantial evidence to support the award: instead, we are obliged to examine the record for matters which would toll the statute or estop the appellee from pleading it. Id. at 44. The record shows that the appellant had regularly scheduled, yearly examinations with his original surgeon, an authorized treating physician. Furthermore, the procedure performed by the surgeon required such yearly examinations, because a substantial percentage of such operations fail and require further treatment. I think it is of no consequence whatsoever that the employer may have had no actual knowledge of the appellant’s visits because the employer had abundant reason to know they would take place. To deny the appellant payment for subsequent treatment which was clearly needed and anticipated is pointless, contrary to the law, and unconscionable, and I vigorously dissent from this injustice.
Mayfield, J., joins in this dissent.