CLAIM NO. E116469

EMILY AKINS, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED, EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 23, 1994

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE WILLIAM B. BLEVINS, Attorney at Law, North Little Rock, Arkansas.

Respondent represented by the HONORABLE EARL BUDDY CHADICK, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on September 23, 1993. In that opinion and order, the administrative law judge found that the claimant failed to prove that she is entitled to additional temporary disability compensation. In addition, the administrative law judge found that the claimant sustained a permanent physical impairment in the amount of 5% below the elbow to each wrist.

[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation. We also find that she failed to prove by a preponderance of the evidence that she is entitled to compensation for a permanent physical impairment to her right wrist. However, we find that a preponderance of the evidence establishes that the claimant sustained a 5% permanent physical impairment to her left wrist. Therefore, we find that the administrative law judge’s decision must be affirmed in part and reversed in part.

[4] The parties have stipulated that the claimant sustained a compensable injury to both wrists on August 1, 1991. She began working for the respondent in March of 1991 in the pack-out department. In this department, chicken was sent down into a machine for bagging. The claimant was required to grade the chicken as it came out of the freezer and to remove the bad parts. At some point, the machine began to malfunction, and it was not bagging the chicken properly. When this would occur, the chicken would accumulate on the line, and the claimant would have to push the chicken with her hands to prevent it from falling on the floor. These malfunctions began to occur in June or July of 1991, and at about this same time, the claimant began to experience problems with numbness and swelling in both hands.

[5] As a result of these hand problems, the respondent initially referred the claimant to Dr. R. D. Tanner. Dr. Tanner ordered electrodiagnostic studies, which were performed by Dr. T. P. Bishop on August 12, 1991. Dr. Bishop determined that the studies revealed possible early carpal tunnel syndrome developing on the left, but he concluded that the studies on the right hand were within normal limits. Dr. Bishop performed repeat electrodiagnostic studies on August 23, 1991, and he concluded that these studies showed borderline carpal tunnel syndrome on both the left and the right, with the right being to a lesser degree.

[6] The claimant was then referred to Dr. Michael Moore, a orthopedic surgeon. Dr. Moore’s physical examination on August 28, 1991, revealed positive responses to the Phalen’s maneuver on both the left and the right, and he concurred with Dr. Bishop’s diagnosis of borderline bilateral carpal tunnel syndrome. Dr. Moore treated the claimant conservatively. However, he noted that a left carpal tunnel release might be necessary in the future, although he indicated that the right carpal tunnel symptoms did not appear to warrant consideration of surgery.

[7] Then, the claimant was referred to Dr. Charles Clark. Dr. Clark first examined the claimant on September 24, 1991, and he surgically released her left carpal tunnel on September 27, 1991. However, Dr. Clark continued to treat the claimant’s right problems conservatively. On September 30, 1991, Dr. Clark released the claimant to light duty work.

[8] The claimant did return to work on September 30, 1991, and she continued to work for the respondent in the nurses’ station until January 18, 1992, except for a period of time in November when employees at the plant were laid off. However, on January 20, 1992, she took a personal leave of absence to have a hysterectomy, and, afterward, she voluntarily terminated her employment with the respondent.

[9] After returning to work, the claimant continued to experience pain in her left wrist, so Dr. Clark ordered a bone scan. This bone scan did not reveal any abnormalities. Dr. Clark also ordered additional electrodiagnostic studies, and Dr. Bishop concluded that these studies showed significant improvements. Dr. Clark released the claimant to full-duty work on January 2, 1992. However, due to the claimant’s continued complaints, Dr. Clark opined in a letter dated March 6, 1992, that the claimant should seek another type of employment that would not require repetitive hand activities. In addition, Dr. Clark opined that the claimant did not sustain any permanent physical impairment.

[10] The claimant felt that Dr. Clark was not giving proper attention to her continued complaints, so she returned to Dr. Moore on March 18, 1992. Dr. Moore’s physical examination suggested possible recurrent carpal tunnel syndrome, so he eventually referred the claimant to Dr. David Miles for further electrodiagnostic studies. Dr. Miles reached the following conclusions after performing these tests on September 22, 1992:

The electrodiagnostic studies are normal. There is no evidence of carpal tunnel syndrome on either right or left side. The remainder of the examination is also normal.

[11] Consequently, Dr. Moore assigned permanent impairment ratings on October 26, 1992, and he indicated that he had nothing further to offer the claimant.

[12] We note that neither party appealed the administrative law judge’s finding with regard to temporary disability compensation. However, we find that the preponderance of the evidence fails to establish that the claimant is entitled to any temporary disability compensation. 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 she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. 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 (6) (1987). 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).

[13] In the present claim, the claimant did not miss any work prior to her carpal tunnel release surgery on Friday, September 27, 1991. Moreover, she returned to work on the Monday following the surgery, and the respondent continued to make employment available to the claimant which was within her physical restrictions until she was released to full duty by Dr. Clark on January 2, 1992. Then, the claimant voluntarily terminated her employment with the respondent. Therefore, we find that the claimant did not suffer any incapacity to earn wages prior to her release by Dr. Clark. In addition, we find that the preponderance of the evidence establishes that the claimant’s condition had become stable and nothing further would improve the condition after Dr. Clark released her to full-duty work on January 2, 1992. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to any temporary disability compensation.

[14] With regard to the claimant’s entitlement to compensation for a permanent physical impairment, an injured worker has the burden of proving by a preponderance of the evidence that she is entitled to an award for a permanent physical impairment. Therefore, when considering claims for permanent physical impairments, the Commission must impartially weigh all of the evidence in the record to determine whether the preponderance of the evidence establishes that the worker sustained a permanent physical impairment as a result of a compensable injury. Physical impairments occur when an anatomical, physiological, or psychological abnormality limits the ability of the worker to effectively use part of the body or the body as a whole. Consequently, an injured worker must prove that the work-related injury resulted in, or worsened, a permanent anatomical, physiological, or psychological abnormality which limits the ability of the worker to effectively use part of the body or the body as a whole. Therefore, in considering such claims, the Commission must first determine whether the evidence shows the presence of an abnormality which could reasonably be expected to produce the permanent physical impairment alleged by the injured worker.

[15] With regard to this determination, Ark. Code Ann. § 11-9-704 (c)(1) (1987) provides that “[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” The Arkansas Court of Appeals has found that a finding is objective if it is based on observable phenomena or it indicates a symptom or condition perceived as a sign of an underlying abnormality by someone other than the person afflicted. Keller v. L. A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992); Reeder v. Rheem Manufacturing,38 Ark. App. 248, 832 S.W.2d 505 (1992); Taco Bell v.Finley, 38 Ark. App. 11, 826 S.W.2d 213 (1992). As discussed by the Court, objective findings are not limited to those that can be seen or ascertained by touch. Keller,supra. With regard to measurable findings, the Court has noted that measurable has been defined to mean “great enough to be worth consideration.” Keller, supra (quotingWebster’s Third New International Dictionary (Unabridged) (1976). In addition, the Court has recognized that “measurable findings may involve the extent, degree, dimension, or quantity of the physical condition.” Keller,supra. According to the Court, findings do not have to be exact to be measurable, and physicians are not “confined to any specific chart or guideline in making their evaluation of the existence or extent of physical impairment.” Keller,supra.

[16] The Court has also found that findings may satisfy the statutory requirements of Ark. Code Ann. § 11-9-704 (c)(1) even though there is a subjective component involved.Keller, supra; Reeder, supra; Taco Bell, supra.
Furthermore, the Court has found that Ark. Code Ann. § 11-9-704 (c)(1) does not prohibit the Commission from considering other factors, even if purely subjective, so long as the record contains objective and measurable findings to support the Commission’s ultimate decision. Keller, supra; TacoBell, supra. In fact, the Court has found that Ark. Code Ann. § 11-9-704 (c)(1) “precludes an award for permanent disability only when it would be based solely on subjective findings.” Keller, supra (quoting Reeder, supra) (emphasis in original).

[17] In the present claim, the medical record contains findings which satisfy the requirements of Ark. Code Ann. § 11-9-704 (c)(1) (1987), as those requirements have been interpreted by the Arkansas Court of Appeals. Specifically, the Court of Appeals has found that tests such as the Phalen’s maneuver can satisfy the statutory requirements, and Dr. Moore’s reports indicate that he obtained positive responses to clinical procedures similar to the Phalen’s maneuver. Consequently, we find that Ark. Code Ann. § 11-9-704 (c)(1) does not bar an award of compensation.

[18] In addition, we find that a preponderance of the evidence establishes that the claimant is entitled to compensation for a 5% permanent physical impairment to her left wrist. As discussed, the claimant’s carpal tunnel was surgically released on this side, and she continued to experience problems with the wrist afterward. Clearly, this surgical release resulted in an anatomical alteration and abnormality. Therefore, we find that a preponderance of the evidence establishes that she sustained a 5% permanent physical impairment, as opined by Dr. Moore, as a result of the compensable injury to her left wrist.

[19] However, we find that the claimant failed to prove by a preponderance of the evidence that she sustained any permanent physical impairment to her right wrist. As discussed, no surgery was ever recommended or performed on this wrist. Moreover, although Dr. Moore assigned a permanent physical impairment rating for the right wrist, his records indicate that this rating was based on the mistaken impression that surgery had also been performed on the right wrist. In this regard, Dr. Moore’s October 26, 1992, letter which contains these ratings, contains the following statements:

. . . As you may remember, Ms. Akins had undergone previous bilateral carpal tunnel releases. . . .
It is my opinion that Ms. Akins has reached her healing period in regards to her previous carpal tunnel releases. . . . Finally, the impairment of Ms. Akins’ right hand is 5%. The impairment is below the elbow. The permanent impairment of her left hand is 5%. The impairment is below the elbow.

[20] Consequently, we find that Dr. Moore’s rating to the right wrist is inaccurately based on his assumption that surgery was also performed on that wrist. Therefore, we find that this rating is insufficient to support an award for a permanent physical impairment. In addition, we do not find other evidence supporting a conclusion that the claimant sustained a permanent physical impairment to that wrist.

[21] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary disability compensation. In addition, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to compensation for a permanent physical impairment to her right wrist. However, we find that a preponderance of the evidence establishes that the claimant sustained a 5% permanent physical impairment to her left wrist. Consequently, we find that the administrative law judge’s decision must be affirmed in part and reversed in part.

[22] 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 Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809
(1987). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (b) (1987).

[23] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[24] Commissioner Tatum dissents.