CLAIM NOS. E501822 and E504070
YVETTE L. ARROWOOD, EMPLOYEE, CLAIMANT v. BAXTER COUNTY REGIONAL HOSPITAL, EMPLOYER, RESPONDENT and SISCO, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 14, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK S. “RICK” SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by the HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER
[2] The claimant appeals and the respondent cross-appeals an opinion and order filed by the administrative law judge on January 4, 1996. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that she is entitled to temporary total disability compensation for the period January 12, 1995, through January 30, 1995. However, the administrative law judge found that the claimant failed to prove that she remained in her healing period and was unable to earn wages from November 8, 1994 through November 14, 1994. In addition, the administrative law judge found that the claimant failed to prove that additional medical benefits for treatment of depression is reasonable and necessary and related to her work-related injury.
[3] After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that she is entitled to temporary total disability compensation for the period beginning January 12, 1995, and continuing through January 29, 1995. We also find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary disability compensation during the period from November 8, 1994 through November 14, 1994, and we find that the claimant failed to prove by a preponderance of the evidence that she has sustained a compensable mental injury arising out of her compensable physical injury. Therefore, we find that the administrative law judge’s decision must be affirmed as modified.
[4] The claimant, a licensed practical nurse, sustained admittedly compensable injuries on November 8, 1994, and on November 21, 1994. In that regard, the claimant presented to the respondent’s emergency room on November 8, 1994, complaining of groin pain across the lower abdomen after hurting herself moving an operating room table. Dr. James Cook, an emergency room physician, released the claimant that same day to return to light-duty work at a “sit down job” with no lifting until released to full-duty work by a physician. Dr. Kris Shewmake released the claimant to regular duty work with no limitations on November 14, 1994.
[5] The claimant returned to the respondent’s emergency room on November 22, 1994, after re-injuring her groin attempting to move an instrument tray. Dr. John Spore performed exploratory abdominal surgery on January 12, 1995, and a small hernia was identified and repaired. In a note dated January 25, 1995, Dr. Spore indicated that the claimant could return to light-duty work on January 30, 1995. Dr. Spore released the claimant to regular-duty work beginning February 27, 1995.
[6] The respondents paid the claimant temporary total disability compensation for the period beginning January 12, 1995, and continuing through January 29, 1995. Ms. Charlotte Lowery, an adjuster for SISCO handling the claimant’s case, testified that to her knowledge the claimant was not paid temporary disability compensation for any period in November of 1994. Ms. Lowery also indicated that the respondents have accepted responsibility for all medical treatment provided to the claimant with the exception of prescriptions for Xanax and other anti-depressants.
[7] Since the claimant’s injury occurred after July 1, 1993, the provisions of Act 796 are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, 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 Highwayand Transportation 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. 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) (Repl. 1996). 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 her physical capabilities. Mad Butcher, Inc. v. Parker,
4 Ark. App. 124,
628 S.W.2d 582 (1982).
[8] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary disability compensation for any period between November 8, 1994 and November 14, 1994, as she contends. As discussed, Dr. Cook released the claimant to light-duty work on November 8, 1994, after diagnosing a relatively minor injury, and the claimant did not present any contradictory evidence suggesting that she was otherwise incapacitated from earning wages in any way during that period.
[9] However, we find that the claimant proved by a preponderance of the evidence that she remained within her healing period and totally incapacitated from earning wages beginning on the date of her abdominal surgery, January 12, 1995, and continuing through January 29, 1995. In that regard, Dr. Spore’s operative note indicates that the claimant underwent an invasive abdominal surgical procedure, and we find that the claimant remained within her healing period and totally incapacitated from earning wages during the recovery period indicated and prescribed by Dr. Spore.
[10] In addition, we find that the claimant failed to prove that she is entitled to reimbursement for the cost of Xanax and other anti-depressant medications. In that regard, we find that the claimant failed to prove by a preponderance of the evidence that she has sustained a compensable mental injury or illness arising out of her compensable physical injury for which anti-depressant medication is reasonably necessary, as she contends. Under the provisions of
Act 796 of 1993, employees are entitled to receive benefits only for injuries falling within the criteria for “compensable injuries,” which are set forth in the law. With regard to claims for mental injuries and conditions arising after July 1, 1993, Ark. Code Ann. §
11-9-113 (a) provides the following:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(a)(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
[11] Thus, among the other elements necessary to prove a compensable mental injury, Section 113 (a)(2) requires (1) that every claim for a mental injury or illness be supported by a diagnosis from a licensed psychiatrist or psychologist, and also requires (2) that the diagnosis meet specific published criteria.
[12] In the present claim, prescription receipts submitted into evidence by the claimant indicate that Dr. William Ford prescribed Xanax for the claimant in January and March of 1995, and the claimant testified that she currently takes Zoloft to relieve anxiety and crying. However, the evidence submitted into the record provides no indication as to which of the conditions listed in the Diagnostic and StandardManual of Mental Disorders, if any, that the claimant contends she is experiencing. In addition, the record contains no evidence that a licensed psychiatrist or psychologist has ever diagnosed the claimant with any mental disorder. In that regard, the claimant testified that Dr. Ford, who prescribed Xanax, is a member of the Ozark Surgical Group. The Ozark Surgical Group letterhead clearly indicates that Dr. Ford is a surgeon, not a licensed psychiatrist or psychologist. Moreover, the claimant has failed to show by a preponderance of the evidence that Dr. Ford’s prescription for Xanax, or any other evidence in the record, satisfies the requirement of a diagnosis that meets the criteria for any condition set forth in the DiagnosticStatistical Manual of Mental Disorders.
[13] Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to show that she sustained a mental injury or illness arising out of her physical injury. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that Xanax, Zoloft, or similar medication is reasonably necessary for treatment of her compensable injury. In addition, we find that the claimant proved by a preponderance of the evidence that she is entitled to temporary total disability compensation for the period from January 12, 1995, through January 29, 1995, and we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary disability compensation during the period from November 8, 1994 through November 14, 1994. Therefore, we find that the administrative law judge’s decision must be affirmed as modified.
[14] 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 (Repl. 1996). For prevailing in part 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) (Repl. 1996).
[15] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman
[16] Commissioner Humphrey concurs.
[17] Commissioner Holcomb concurs.
