CLAIM NO. E410501
BOBBY M. BRUMLEY, EMPLOYEE, CLAIMANT v. RAY RICHARD PAINTING, EMPLOYER, RESPONDENT and COMMERCIAL UNION INSURANCE CO, CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 3, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed May 10, 1996 finding that the claimant’s healing period ended on July 15, 1994. Based upon our de novo review of the record, we find that the claimant’s healing period ended on July 27, 1994 when he was released to return to work, however, we find that claimant has failed to prove entitlement to temporary total disability benefits subsequent to July 15, 1994.
[3] The claimant sustained an admittedly compensable injury on June 22, 1994 when he was involved in a minor rear-end collision during the course and scope of his employment. The record reveals that on July 22, 1994 while riding in a truck with Mike Richards, Mr. Richards backed into a telephone pole. Mr. Richards described the incident as a tap on the pole, with no damage to the bumper of the pickup nor to the pole. Although claimant advised his treating physicians that his head struck the rear window of the truck with such force to crack the window, Mr. Richards testified that claimant’s head did not hit the rear window.
[4] Claimant testified that he had worked for respondent for approximately a month prior to the injury occurring. However, Ray and Margie Richards, the owners of Richard Painting Contractor, both testified that the employment records indicate claimant had only worked for respondent for two days before the injury occurred. Moreover, claimant testified that he reported the accident on the day after it occurred but was not sent to the doctor until the following day. This testimony is inconsistent with Ray and Margie Richard’s testimony as well as the medical records. The medical records reveal that the claimant did not seek medical attention until June 28, 1994, six days after the injury occurred.
[5] The medical records indicate that claimant was initially diagnosed with a cervical strain. However, due to claimant’s continued complaints of pain and headaches, a CT scan of the head and an MRI of the cervical spine were taken. Both objective tests revealed normal findings. Although the MRI did reveal a mild bulge at C5-6, the MRI conclusion stated that there was no definite herniated disc and no evidence of spinal stenosis. Dr. Richard Davis, claimant’s primary treating physician, stated that the very mild bulge was of no significance. On July 14, 1994, Dr. Davis released the claimant to return to light duty work. On July 27, 1994, after being evaluated by Dr. Davis, Dr. Davis released the claimant to return to work without restrictions. On August 8, 1994, claimant returned to Dr. Davis’ office and was prescribed additional pain medication for his symptoms.
[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. Temporary total benefits do not, in all cases, correspond to the healing period; temporary disability is not based on the claimants healing period, but is awarded where the claimant’s injury-caused incapacity prevents him from earning the wages he was receiving at the time of the injury. County Mkt. v. Thornton,
27 Ark. App. 235,
770 S.W.2d 156, supp. op. reh’g denied.
27 Ark. App. 241-A, 771 S.W.2d 793 (1989).
[7] As noted in Dr. Davis’ deposition, claimant’s condition was as far restored as the permanent character of his injury would permit as of July 27, 1994 when Dr. Davis released the claimant to return to full duty. It is Dr. Davis’ opinion that the claimant reentered his healing period in August of 1994 since claimant was placed on pain medication. However, as noted above, it has long been held that pain, in and of itself, is not sufficient to extend one’s healing period.
[8] The record reveals that respondent was ready, willing and able to return claimant to work in both a light duty and a full duty capacity. While claimant may not have been working much during this time frame, his employer was willing to accommodate claimant’s restrictions. In fact, the record reveals that claimant’s employer chastised claimant for carrying five gallon paint buckets when claimant was only supposed to be working light duty. Consequently, we find that claimant has failed to prove by a preponderance of the evidence that he suffered a total incapacity to earn wages after he was released to full duty on July 27, 1994.
[9] Moreover, we find that claimant has failed to show that he was totally incapacitated from earning wages after he was released to light duty on July 15, 1994. Respondent returned claimant to work and provided work within claimant’s physical limitations. Accordingly, we find that claimant’s healing period ended on July 27, 1994, but that claimant has failed to prove entitlement to temporary total disability benefits after he was released to light duty on July 15, 1994. We further find that since respondent has paid temporary total disability benefits up through November 11, 1994, they have over paid the claimant’s benefits and are entitled to a credit in the event claimant seeks additional disability benefits in the future. This issue has been reserved by the parties.
[10] Accordingly, based upon my de novo review of the entire record, and for those reasons discussed herein, we find that the Administrative Law Judge’s findings that the claimant’s healing period ended on July 15, 1994 should be modified. We find that the record shows claimant was released to full duty as of July 27, 1994. Consequently, we find claimant’s healing period ended on July 27, 1994. The fact that claimant voluntarily refused to return to work after that date does not operate to extend claimant’s period of incapacity. Had claimant returned to work, the record reveals that his employer would have accommodated claimant.
[11] IT IS SO ORDERED.
DAVE GREENBAUM, Special Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents.
