CLAIM NO. E402949
EARL JASPER, EMPLOYEE, CLAIMANT v. CENTURY TUBE, EMPLOYER, RESPONDENT and YASUDA FIRE MARINE INS. CO., CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 13, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ZINA HILL HAMILTON, Attorney at Law, Little Rock, Arkansas.
Respondent represented by THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed December 18, 1996, finding that claimant sustained a compensable mental injury as a result of his compensable left arm injury which occurred on February 24, 1994, and finding that claimant is entitled to temporary total disability benefits continuously from November 30, 1994 through December 20, 1995, as well as entitlement to a permanent physical impairment rating to his left upper extremity in the amount of 30%. Based upon our denovo review of the entire record, we find that the decision of the Administrative Law Judge should be affirmed in part and reversed in part.
[3] The record reveals that claimant sustained a serious injury to his left upper extremity on February 24, 1994. As a result of this injury, claimant has undergone two surgical procedures performed by Dr. Charles Clark and one performed by Dr. Michael Moore. Claimant’s injury was accepted as compensable by respondent and temporary total disability benefits, medical benefits, and a 22% physical impairment rating to the left upper extremity have been paid.
[4] At the hearing held on November 8, 1996, claimant contended entitlement to additional temporary total disability benefits commencing on July 1, 1994 and continuing through the end of his healing period, a date yet to be determined, a 30% physical impairment rating to his left upper extremity as assigned by Dr. Clark, and to psychological benefits alleging that his mental condition is compensable under Ark. Code Ann. §
11-9-113. Conversely, respondent contended that claimant has been provided all benefits to which he is entitled and specifically contended that claimant’s current psychological condition is not causally related to the compensable injury. After reviewing the evidencede novo, without giving the benefit of the doubt to either party, we agree in part with both parties.
[5] With regard to claimant’s claim for additional temporary total disability benefits, we cannot find that claimant remained in his healing period after June 2, 1994, when he was released to return to work by his treating physician, Dr. Clark. The record is abundantly clear that Dr. Clark released claimant on June 2, 1994, after claimant underwent two surgical procedures on his arm. In his June 2, 1994, office note Dr. Clark did offer claimant the additional treatment of manipulation under anesthesia, but claimant refused this procedure. Merely because additional treatment has been recommended, does not mean that one remains in their healing period, if the claimant refuses such treatment.
[6] Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept. v. Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). The healing period continues until the employee is a far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker,
4 Ark. App. 124,
628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized.
[7] Both Dr. Clark, and Dr. Moore agree that claimant reached maximum medical improvement from his previous surgeries by at least June 2, 1994. Claimant’s condition was stable as of that date. Potential treatment which is refused cannot be found to extend the healing period. Accordingly, we cannot find that claimant remained in his healing period after this date.
[8] This does not mean that claimant cannot re-enter a second healing period, which this claimant did when he underwent the third surgical procedure performed by Dr. Moore. The record contains an office note of Dr. Moore dated September 18, 1995, stating that claimant was approximately two weeks following “a left small finger MP joint capsulotomy dorsal ulnar sensory nerve neuroma resection, and wrist capsulotomy.” In his September 18, 1995, office note, Dr. Moore indicated that claimant was physically capable of returning to work at that time so long as claimant did not use his left hand for any lifting or gripping. Thus, we find that claimant re-entered his healing period and was totally incapacitated from earning wages on or about September 4, 1995, which continued through September 18, 1995, when claimant was released to return to work by his treating physician. Therefore, we find that claimant is entitled to temporary total disability benefits for the September 4, 1995 through September 18, 1995. As of September 18, 1995, even if claimant remained in his healing period, it cannot be found that claimant remained totally incapacitated from earning wages. He was clearly released by Dr. Moore to return to work. Accordingly, we reverse the decision of the Administrative Law Judge awarding claimant temporary total disability benefits beginning on November 30, 1994 and continuing through December 20, 1995.
[9] Next, with regard to claimant’s claim for a 30% impairment rating to his left upper extremity below the elbow, we cannot find that claimant has met his burden of proof. Dr. Clark assigned claimant a 30% impairment rating to the left upper extremity on June 27, 1994. While Dr. Clark did state that his impairment was based upon the American Medical Association Guide to theEvaluation of Permanent Impairment, it is clear that the impairment is based upon range of motion tests. Likewise, the 22% impairment rating assigned by Dr. Moore in his November 30, 1994, independent medical evaluation report is based upon claimant’s “decreased range of motion of the left wrist, ring finger MP joint motion and small finger MP joint PIP joint motion.” After performing claimant’s third surgical procedure, Dr. Moore revised his impairment rating and assigned claimant a 20% physical impairment rating to the left upper extremity apparently based upon a change in claimant’s range of motion after undergoing the surgical procedure.
[10] We have previously found that range of motion testing is a test which allows a claimant to voluntarily control the outcome and is therefore not an objective finding required by
Act 796 of 1993. See Roy Southern v. Whirlpool Corporation, FC Opinion April 12, 1996 (
E413412), affirmed by the Court of Appeals in an unpublished opinion (April 2, 1997).
[11] Moreover, Ark. Code Ann. §
11-9-704(c)(2)(B) provides “Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” In Roy Southern, supra we found that the range of motion tests conducted to rate the claimant’s upper extremityinjury were not objective medical findings as contemplated by this section. This finding was affirmed by the Court of Appeals. In short, we found that the portions of the impairment rating Guide
which are based upon subjective criteria such as range of motion testing cannot supersede the statutory definition of objective findings established by the General Assembly.
[12] In the present claim, it is clear that the impairment ratings assigned by both Dr. Clark and Dr. Moore are based upon subjective criteria and do not meet the statutory definition of objective medical findings. Therefore, we cannot find that claimant has proven entitlement to a physical impairment rating as a result of his compensable injury. This is not to say, however, that claimant is not entitled to the 20% impairment rating which has been stipulated to and accepted by respondent. (Owing to the serious nature of this injury, respondent apparently has acknowledged that claimant’s injury has left claimant permanently impaired. While we cannot find that the 20% accepted by respondent is supported by objective medical findings in accordance with the AMA Guides, we are inclined to place greater weight and emphasis on Dr. Moore’s 20% assessment. Dr. Clark’s rating was assigned prior to the last surgical procedure. By claimant’s own testimony the last surgical procedure did appreciably improve his condition. Therefore, Dr. Clark’s 30% rating can no longer be correct.)
[13] Finally, with regard to claimant’s claim for a mental injury we find that the Administrative Law Judge’s finding in this regard should be affirmed. The record reveals that the statutory requirements set forth in Ark. Code Ann. §
11-9-113 have been met. Claimant has been diagnosed with post-traumatic stress disorder by Dr. Bart Danford, Ph.D. and Dr. Winston Wilson and the diagnosis complies with the most current issue of the Diagnostic and Statistical Manual of Mental Disorders. Moreover, both Dr. Danford and Dr. Wilson have stated that claimant’s physical and mental illness is directly related to claimant’s traumatic physical injury. The record reveals that claimant first began seeing Dr. Danford on February 13, 1996, and it was at this time that claimant’s mental illness was diagnosed. Accordingly, we find that claimant is entitled to temporary total disability benefits for his mental injury commencing on February 13, 1996, and continuing for a period of 26 weeks pursuant to Ark. Code Ann. §
11-9-113(b)(1), and we therefore affirm this finding of the Administrative Law Judge.
[14] Therefore, for those reasons stated herein, we find that the decision of the Administrative Law Judge be affirmed in part and reversed in part.
[15] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[16] Commissioner Humphrey concurs in part and dissents in part.
[17] CONCURRING AND DISSENTING OPINION
[18] I concur in part and respectfully dissent in part from the majority opinion.
[19] Specifically, I agree that claimant has sustained a compensable mental injury within the meaning of Ark. Code Ann. §
11-9-113 (Repl. 1996) and is entitled to a corresponding award of temporary total disability benefits, as well as an additional period of temporary total disability benefits from September 4, 1995, until September 18, 1995, owing to his third surgical procedure.
[20] However, I respectfully dissent from the majority’s finding that claimant is not otherwise entitled to a further award of temporary total disability benefits subsequent to June 2, 1994, and is not entitled to the 30% permanent anatomical impairment rating issued by Dr. Clark.
[21] PAT WEST HUMPHREY, Commissioner
