BROOKS v. CITY OF FORT SMITH, 1997 AWCC 146

CLAIM NO. E017040

ROBERT BROOKS, EMPLOYEE, CLAIMANT v. CITY OF FORT SMITH, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 20, 1997

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

Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.

Respondent represented by ELDON COFFMAN, Attorney at Law, Fort Smith, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on August 9, 1996, finding that claimant was entitled to an award of additional temporary total disability benefits from December 12, 1995, through an unspecified date.

[3] Respondents now appeal from that opinion and order, contending that claimant has failed to prove any entitlement to temporary total disability benefits.

[4] Based on our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he is entitled to an award of additional temporary total disability benefits beginning December 13, 1995, and continuing through a date yet to be determined. The decision of the Administrative Law Judge is therefore affirmed.

[5] Claimant originally sustained a compensable mental injury in the form of post-traumatic stress disorder in May, 1990, related to a 1978 shooting incident that occurred during the course of his duties as a police officer for respondent employer. Claimant was unable to continue his duties as a police officer and eventually found new employment in a sales representative capacity. This he was able to perform until December 12, 1995, when a gradual return of his symptoms culminated in episode where claimant “lost it”:

I just started shaking; I started crying; I felt like I was having, you know, a nervous breakdown. I just got back in the truck; I drove back home; and I went in and I told my wife; I said, you know, I just totally lost it.

[6] Claimant immediately returned to his treating psychiatrist, Dr. Dorzab, the following day. He further testified that there were no unusually stressful events occurring in his life during or prior to December, 1995, that would have triggered the above-described episode. Claimant has not returned to work since December 12, 1995.

[7] Dr. Dorzab has made it clear that claimant’s continued disability is at least in part attributable to his ongoing difficulties with post-traumatic stress disorder, as his deposition testimony of July 2, 1996, indicates:

Mr. Coffman, I have the same problem with that that I’ve had since day one. I still do not know how much of what is wrong with him is due to that condition versus the major depressive illness, and even now, the Huntington’s chorea. I do think that the post-traumatic stress disorder existed with him, and that is part of his current symptoms, and — but how to tease it up by itself from the rest of it, I don’t know. I don’t even know that he is incapacitated right now, but I think he probably is, from whatever-combination of problems that he has may be.

[8] Also, in a letter of May 9, 1996, Dr. Dorzab explained that:

It is my professional opinion as a board certified psychiatrist licensed to practice in the state of Arkansas that Mike Brooks is suffering from a disabling disorder that is a recurrence of a condition for which I treated him in 1990. The nature of that disorder remains elusive for certainty (sic) and is even more difficult now that we have found that he has Huntington’s Disease. We have always been able to diagnose a Post-Traumatic Stress Disorder from work-related experiences . . . Despite the new knowledge in this case, we can not get away from the fact that the timing of his symptoms and the content of his thoughts suggest a causal role of the work injury if only in an “aggravation of a pre-existing condition” manner. Mr. Brooks was temporarily disabled as of the day that I examined him 12-13-95 and that disability continued at least through the last date that I examined him on 05-01-96. (Emphasis added).

[9] Dr. Dorzab went on to state during his deposition that the foregoing letter accurately expressed his opinions regarding claimant’s condition, and that he had seen claimant one additional time since the letter was written, on June 14, 1996. Dr. Dorzab stated that by that time, claimant’s condition was no different than from his previous visit.

[10] Finally, while respondents suggest that claimant’s disability rests on his statements to Dr. Dorzab to the effect that he cannot return to work, Dr. Dorzab dispelled this notion during his deposition:

Well, I’m sure that he has told me that he is unable to work, and yet, I would have no difference of opinion in that during this period of time we’re talking about.

[11] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway andTransp. Dep’t. v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). The healing period itself continues until the injured employee is as far restored as the permanent character of the injury will permit, and will end once the underlying condition has become stable and nothing further in the way of treatment will improve that condition. MadButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582
(1982). The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id. Finally, the question of when the healing period has ended is a factual determination that is to be made by the Commission. Id.

[12] We do not believe that the mere presence of mental afflictions differing from claimant’s work-related post-traumatic stress disorder renders his current disability noncompensable. Because claimant’s injury is not governed by Act 796 of 1993 (having occurred prior to July 1, 1993), he is not required to satisfy the provisions of Ark. Code Ann. § 11-9-113 (Repl. 1996), concerning mental injuries. Also, it was not necessary for claimant’s work activities to be the sole cause of his compensable injury to begin with, so long as there was a “substantially contributory causal connection” between the injury and his employment duties. See Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992).

[13] From Dr. Dorzab’s opinions, quoted above, and claimant’s credible testimony, also set out above, we specifically find that claimant’s current disability is causally related to his work-related mental injury of May, 1990, and that he re-entered a healing period on December 12, 1995, and has remained therein and been totally incapacitated to earn wages since that time. We further specifically find that claimant is entitled to an award of additional temporary total disability benefits from December 13, 1995, through a date yet to be determined.

[14] As a final matter, we are not moved by respondents’ assertion that claimant has sustained no wage loss owing to his receipt of money, subsequent to December 12, 1995, from the employer he worked for when his disability recurred. Simply put, respondents argue that these payments constitute “salary,” since they were subjected to withholding for social security and income taxes, and that claimant has accordingly failed to demonstrate any “wage loss” to merit an award of additional temporary total disability benefits. Respondents further assert that:

Since at some time the salary has been reduced to sixty percent of full salary, Claimant would be free to make a claim for temporary partial disability benefits for this period of time his salary was reduced. However, it would be up to the Claimant to go before the Commission and prove when his salary had been reduced and what amount of wages he had lost. On this current record, no award can be made because he failed to prove the basic element of wage loss.

[15] Although it is not entirely clear what specific statutory or precedential theory respondents rely upon for this argument, we can only assume that it is based at least in part on Ark. Code Ann. § 11-9-807 (1987), which provides:

If the employer has made advance payments for compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. If the injured employee receives full wages during disability, he shall not be entitled to compensation during the period.

[16] We note that the burden of proof is on respondent employer to demonstrate that money paid by it to an injured employee is intended as “advance payments of compensation.”Varnell v. Union Carbide, 29 Ark. App. 185, 779 S.W.2d 543
(1989). We also note that in the instant case, claimant did not receive the payments in question from respondent employer to begin with, but from a subsequent employer. Furthermore, while the trial testimony does indicate that such payments were received by claimant and that amounts were withheld for what might have been social security and income tax purposes, we are without the benefit of documentary evidence to verify the nature of these transactions.

[17] We simply cannot conclude, on the evidence before us, that respondents have carried their burden of proof in establishing that claimant received any payments intended as “advance compensation,” or that they are otherwise entitled to any form of offset or credit.

[18] Following our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he re-entered his healing period on December 12, 1995, and has remained therein and totally incapacitated to earn wages from that time through a date yet to be determined. Accordingly, we further specifically find that claimant is entitled to an award of additional temporary total disability benefits from December 13, 1995, through a date yet to be determined.

[19] 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 opinion in accordance with Ark. Code Ann. § 11-9-809 (1987).

[20] 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 as provided by Ark. Code Ann. § 11-9-715 (b) (1987).

[21] IT IS SO ORDERED.

DAVE GREENBAUM, Special Chairman PAT WEST HUMPHREY, Commissioner

[22] Commissioner Wilson dissents.

[23] DISSENTING OPINION
[24] I respectfully dissent from the majority’s opinion finding that claimant is entitled to an award of additional temporary total disability benefits from December 13, 1995, through a date yet to be determined. Based upon my de novo
review of the entire record I find that claimant has failed to meet his burden of proof.

[25] Claimant was involved in a work-related shooting as a police officer with the City of Fort Smith in 1978. In 1990 after being promoted to the internal affairs division of the police department claimant began to develop post-traumatic stress disorder. Workers’ Compensation litigation ensued to determine whether claimant’s post-traumatic stress disorder which developed in May of 1990 was causally related to his work. It was eventually determined that claimant did have a compensable work-related post-traumatic stress disorder.

[26] In 1991 claimant’s condition improved to the point where he returned to work in a sales position. Claimant continued to work from 1991 through December 12, 1995. On December 12, 1995, claimant again developed symptoms associated with major depression.

[27] Claimant contends that his depression which culminated on December 12, 1995, and which has, according to claimant, prevented claimant from returning to work is a recurrence of his post-traumatic stress disorder which he first experienced in May of 1990. 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.

[28] In my opinion, claimant has failed to prove that he re-entered his healing period on December 12, 1995, for his post-traumatic stress disorder and that he was totally incapacitated from working after December 13, 1995. The record reveals that claimant suffers from major depression, Huntington’s disease, and possibly post-traumatic stress disorder. It is difficult, if not impossible to state which of these conditions resulted in claimant’s “breakdown” on December 12, 1995. For this commission to find that claimant’s condition in December of 1995 is a recurrence of his post-traumatic stress disorder would require this Commission to resort to speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover,35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co.v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). ArkansasMethodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125
(1993). Since I cannot separate claimant’s condition and say within any degree of reasonable medical probability that claimant’s post-traumatic stress disorder actually caused his “breakdown”, I cannot find that claimant re-entered his healing period.

[29] In addition, the evidence fails to show that claimant was “totally incapacitated” from earning wages during the time period in question. When claimant’s psychiatrist, Dr. Joe Dorzab was asked during his deposition if claimant was totally incapacitated Dr. Dorzab stated:

No. Well, that’s a hard call, and I don’t know how to call that exactly. But he’s certainly not as seriously ill as he was not only at the beginning of the whole thing, but at the beginning of this year. He’s better than that.

[30] Accordingly, after reviewing the record de novo,
and without giving the benefit of the doubt to either party, I cannot find that claimant’s time off from work is related to his post-traumatic stress disorder and not his non work-related depression. Dr. Dorzab stated several times in his deposition that claimant had substantially recovered from the post-traumatic stress disorder and was capable of working. Moreover, Dr. Dorzab stated unequivocally that claimant was not totally incapacitated from working. Therefore, I respectfully dissent from the majority opinion.

[31] MIKE WILSON, Commissioner