CLAIM NO. E402949
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 14, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by ZINA HILL HAMILTON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] This case comes on for review before the Commission on remand from the Arkansas Court of Appeals to make specific findings regarding claimant’s entitlement to temporary total disability benefits for a psychological condition, which the Commission has found to be causally related to an admittedly compensable physical injury sustained in February 1994. The Administrative Law Judge found that claimant was entitled to such benefits beginning February 13, 1996 (the date his psychological condition was diagnosed) and continuing until August 13, 1996, the 26 weeks of benefits allowable pursuant to Ark. Code Ann. § 11-9-113(b)(1) (Repl. 1996). [3] It really should come as no surprise that the Commission’s decision concerning temporary total disability was unanimous and failed to make sufficient findings of fact. Although respondents’ attorney did list this issue in the notice of appeal, the attorney’s argument is contained on page 21 of the initial brief to the Commission.
[4] We would also point out that the above argument concerning the end of the healing period refers to claimant’sphysical, rather than his mental, injury. Thus, respondents’ sole argument for reversal of the Administrative Law Judge’s award for temporary total disability was premised on its assertion that claimant’s psychological condition was not causally related to the compensable injury. We obviously should have included in our opinion a statement that the only issue on appeal was whether a causal connection existed between claimant’s compensable physical injury and his psychological condition and that respondent had abandoned the issue of whether claimant remained within his healing period and totally incapacitated from earning wages as a result of the psychological condition. Be that as it may, the record supports an award for these benefits. [5] Temporary total disability is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark. State Highway Transportation Dept. v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v.Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [6] It cannot be seriously argued that claimant was not within his healing period for the psychological condition during the relevant period. Both Dr. B. H. Danford and Dr. Winston T. Wilson opined that claimant needed therapy for his psychological difficulties. Additionally, Dr. Wilson’s opinion was contained in a report dated October 14, 1996, which is beyond 26 weeks from February 13, 1996. [7] Concerning claimant’s ability to work, Dr. Danford noted that claimant’s “condition has significantly impaired his social, vocational and family functioning and that this stemmed from his injury to his arm.” Dr. Wilson stated that “many people would not hire him because of his accident and lack of ability to use his left hand completely.” Finally, even respondent agreed on page 3 of its initial brief to the Full Commission that “[b]oth [Drs. Danford and Wilson] agreed that in light of claimant’s present depressed state, he was unable to work.” [8] Based on the above evidence, we find that claimant remained in his healing period and totally incapacitated from earning wages from February 13 to at least August 13, 1996. Therefore, the opinion of the Administrative Law Judge must be affirmed in this regard. We again hereby direct respondents to comply with the award set forth in the opinion of the Administrative Law Judge. 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. While we are not in this opinion awarding additional attorney’s fee for prevailing again on this remand, we wish to reiterate that claimant’s attorney is entitled to such a fee in the amount of $250.00 for prevailing on the original appeal. [9] IT IS SO ORDERED.With respect to the maximum, 26-week award of TTD for mental injury from 2/13 to 8/13/96, this cannot stand since Respondents demonstrated in the previous section of this brief that Claimant’s psychological problems bear no causal relation to his compensable injury. Consequently, even if Claimant is disabled from working due to depression after 2/13/96, the disability is not that which is contemplated by the Workers’ Compensation Law. Moreover, Dr. Moore again ended Claimant’s healing period (from the additional surgery he performed) as of 12/20/95. Once again, any award of TTD outside of the healing period is contrary to the holding of Breshears
and to the intent of the Legislature. (Emphasis added).
_______________________________
PAT WEST HUMPHREY, Commissioner
[13] Although I initially found that claimant was entitled to 26 weeks of temporary total disability benefits, now that I am required to re-evaluate this claim on remand, I am unable to find that claimant has met his burden of proof to entitlement to these benefits. [14] In our Opinion filed November 13, 1997, we found that the claimant proved by a preponderance of the evidence he sustained a mental injury and that the statutory requirements for a compensable mental injury set forth in Ark. Code Ann. §11-9-113 have been met. We further found that since claimant first began seeing Dr. Bart Danford on February 13, 1996, and was diagnosed with a mental illness at that time that claimant was entitled to temporary total disability benefits for his mental injury commencing on February 13, 1996, and continuing for the statutorily allowed 26 weeks. It is this award of temporary total disability benefits which the Court of Appeals has remanded for a specific finding of fact. [15] Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway Transportation Dept. V.Breshears, 272 Ark. 244, 613 S.W.2d ___ (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v.Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [16] After reviewing the record, I cannot find that claimant has proven by a preponderance of the evidence that his mental injury has resulted in a total incapacity to earn wages. Furthermore, although Dr. Wilson opined that claimant would require treatment or counseling for his severe depression, in my opinion, there is insufficient evidence in the record to conclude that claimant remained in his healing period and was totally incapacitated from earning wages due to his mental injury. Conceivably, claimant may have been within his healing period for his mental injury. However, after reviewing the records of Dr. Danford and of Dr. Wilson, I cannot find that claimant has proven by a preponderance of the evidence entitlement to temporary total disability benefits. In this regard, Dr. Wilson was only able to state that he agreed employers would not hire claimant due to his physical disability. There is no mention with regard to a mental disability. Dr. Danford even stated that claimant’s mental condition would greatly improve once claimant is employed. This statement implies that claimant’s mental injury has not caused a total incapacity to earn wages. Admittedly, Dr. Danford did state that claimant’s inability to get a job due to his physical disabilities has been compounded by the fact that claimant has been discouraged and depressed. However, in my opinion, these comments are not the same as stating that it is the mental injury which has caused a total incapacity to earn wages. In my opinion such a finding cannot be made based upon this record. [17] Accordingly, for those reasons set forth herein, I find that there is a lack of evidence to arise to a preponderance of the evidence to support our previous finding that claimant is entitled to 26 weeks of temporary total disability benefits for his mental injury. Consequently, I find that we must reverse our previous finding, and I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner