CLAIM NO. E403985
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 13, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by STEPHEN SHARUM, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by CAROL WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed, as modified.
[1] OPINION AND ORDER
[2] This case comes on for review before the Commission on remand from the Arkansas Court of Appeals. The Commission had affirmed and adopted the Administrative Law Judge’s findings that claimant was entitled to benefits for temporary total disability from July 1, 1992 to March 11, 1994. The Commission had also affirmed the award of benefits for a wage loss disability of 5% to the body as a whole. The Court of Appeals reversed the finding regarding temporary total disability and remanded due to insufficient findings of fact. Thus, the only issue on remand concerns claimant’s entitlement to benefits for temporary total disability.
[7] In a report dated August 31, 1995, Dr. Greg T. Jones, who provided consultation concerning claimant’s condition for Dr. Cesar, stated that “I would concur that he had reached a point of maximum medical improvement with conservative care at the time he had been released and rated in November 1993.” [8] Based on claimant’s credible testimony concerning his inability to work and the opinions of Drs. Cesar and Jones concerning when claimant’s healing period ended, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for temporary total disability from July 1, 1992 to November 24, 1993. [9] Accordingly, we modify the opinion of the Administrative Law Judge to award benefits for temporary total disability from July 1, 1992 to November 24, 1993. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. [10] IT IS SO ORDERED.Paul Bull went full evaluation by us. [sic] including myelogram and post myelogram CT. This shows mild changes that we don’t feel a disc removal would be beneficial. In so being. [sic] we are going to discontinue his care.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[11] Commissioner Wilson dissents.[12] DISSENTING OPINION
[13] I respectfully dissent from the majority’s opinion awarding temporary total disability benefits for essentially the same reasons set forth in Commissioner Holcomb’s dissent the first time this case was before the Full Commission.
[15] Throughout Dr. Hathcock’s medical records, there is no indication that the claimant cannot work, should be off work, has been taken off work or is totally incapacitated from working. Moreover, Dr. Hathcock’s progress note of May 5, 1992 indicates that the claimant related to Dr. Hathcock that he was planning on traveling west in a van for two weeks. Dr. Hathcock advised the claimant that “a ride in the car could aggravate his condition.” Despite Dr. Hathcock’s admonition, the record reveals that the claimant took the trip anyway. [16] Dr. Hathcock’s correspondence to Sally Albritton dated October 6, 1993 reports “very little objective evidence for [claimant’s] total disability.” However, it is Dr. Hathcock’s September 15, 1993 report which is most telling. Hathcock’s report states in pertinent part:He took off work, on his own, in mid June and has been off all this time trying to `rest up’, although in spite of all of this sacrifice he has not become better. He needs to work, is having difficulty in getting back to work for his cousin at `Bull’s Office System’.
[17] Based upon my de novo review of the entire record, I find that the claimant has failed to prove by a preponderance of the evidence that he is both within his healing period and totally incapacitated from earning wages. The healing period is that period following the injury for healing of the injury resulting from the accident and which continues until the claimant is as far restored as the permanent character of his injury will permit. Once the injury becomes stable and nothing further in the way of treatment will improve the condition, the healing period has ended. The record reveals that as early as September 15, 1993 the claimant advised his physicians that he did no want to undergo surgery. However, between September 1992 and September 1993 the claimant did not undergo any active treatment for his compensable injury. The treatment received by the claimant in September of 1993 was for the alleviation of the claimant’s pain. Active treatment of the claimant’s injury had ceased by September 1992. Clearly, all treatment after September 1992 was to alleviate the claimant’s pain and to evaluate the claimant for surgery. Since the claimant has unequivocally stated that he will not have surgery, such treatment was not active treatment to improve his condition. I find, at best, the claimant’s healing period ended on September 1992. [18] However, I find that the claimant has failed to prove by a preponderance of the evidence the second prong of the test for entitlement to temporary total disability benefits. The medical records clearly show that the claimant’s physicians did not recommend that the claimant remain off work. The only notations in the medical records regarding the claimant’s work or ability to work are simply recitations of the claimant’s history as provided to the physicians by the claimant. These notations are unclear with regards to when the claimant voluntarily quit work. In August 1992, Dr. Hathcock’s notes imply that the claimant was working, however, the September 1992 notes indicate that the claimant has not worked since June. Ironically, the June 1992 time frame corresponds with the claimant’s extended vacation. [19] There is no evidence regarding the claimant’s inability to earn wages during the time period for which he is seeking temporary total disability benefits. In fact, the record reflects that during the time-frame for which he is seeking benefits the claimant went on vacation, began a new business, received monthly income from rental property, and traveled to Colorado for a hunting trip. These activities do not correspond with an inability to earn wages. The claimant was motivated to begin a new business venture and has the expertise to offer business advice and consult with his stepson on how to run the business. Neither the medical evidence nor the claimant’s action support a finding that the claimant was totally incapacitated from earning wages. Therefore, I find that while the claimant may have been in his healing period until September 1992 the claimant has failed to prove by a preponderance of the evidence that he was totally incapacitated from earning wages during that period. Therefore, I must dissent from the majority opinion. [20] MIKE WILSON, CommissionerThe patient returns complaining of recurrent disabling symptoms. He is 56 years old, and he has chronic lumbosacral pain. He has not worked in about a year, and he looks as though he is convinced he is disabled . . . The patient makes an adamant statement: `I don’t want back surgery’. . . . When Dr. Cesar advised a myelogram, the patient refused, stating he was going to flatly refuse surgery anyway. It seems apparent that the patient is directed towards retirement and some sort of workers’ compensation or social security support. I would insist that Dr. Cesar see him and add his opinion to this situation, because we are kind of short on hard evidence.