CLAIM NO. E704148
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 13, 1999
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 RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on January 8, 1999, finding that the claimant sustained a compensable gradual onset back injury and awarding temporary total disability benefits from March 6, 1997, to a date yet to be determined. The respondents on appeal have conceded compensability and have specifically limited the appeal to the issue of temporary total disability. Based upon our denovo review of the record, we would find that the claimant is entitled to temporary total disability benefits from March 6, 1997 through September 12, 1997. Accordingly, we modify the decision of the Administrative Law Judge. [3] The claimant was employed by the respondent as a laborer. The claimant’s job duties required him to lift heavy items, flag traffic, stand on his feet several hours a day, drive a dump truck, pick up heavy litter, run jack hammers, do carpentry work, paint, shovel asphalt, pick up asphalt and operate other types of equipment. The claimant contends that he is entitled to temporary total disability benefits from March 6, 1997, to a date yet to be determined. The respondents contend that the claimant is not entitled to any temporary total disability benefits beyond September 12, 1997. We agree with respondents. [4] 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 392(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). [5] The evidence supports a finding that the claimant reached the end of his healing period on September 12, 1997. On August 1, 1997, the claimant’s treating physician, Dr. John G. Slater, stated that the claimant was slowly improving. On September 12, 1997, Dr. Slater gave the claimant an off-work slip for food stamps but he noted the claimant was not any better. On October 24, 1997, Dr. Slater noted that the claimant was “About the same.” On December 5, 1997, Dr. Slater noted: “His back is about the same.” On January 16, 1998, Dr. Slater noted: “His back is about the same.” In short, all Dr. Slater’s examinations of the claimant after September 12, 1997, indicate that the claimant had no change in his condition. In our opinion, the claimant reached maximum medical improvement as of September 12, 1997. Therefore, he is not entitled to any temporary total disability benefits after that date. The law provides that once the underlying condition has reached maximum medical improvement, the healing period has ended and the claimant is not entitled to temporary total disability benefits. [6] Therefore, after reviewing all of the evidence impartially without giving the benefit of the doubt to either party, we find that the opinion of the Administrative Law Judge should be affirmed as modified. Accordingly, we find that the claimant’s healing period ended on September 12, 1997, and he is entitled to temporary total disability benefits from March 6, 1997, through September 12, 1997. [7] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[8] Commissioner Humphrey dissents. [9] DISSENTING OPINION[10] I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to benefits for temporary total disability beyond September 12, 1997. [11] Temporary total disability is that period within the healing period in which claimant suffers a total incapacity to earn wages. Arkansas 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). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Swift-Eckrich,Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). After myde novo review of the entire record, I find that claimant has proven by a preponderance of the credible evidence that he is entitled to benefits for temporary total disability beyond September 12, 1997 and continuing to a date yet to be determined. [12] On September 12, 1997, Dr. Slater did indeed state that claimant could return to work. However, with the restrictions placed on claimant by Dr. Slater, claimant would not have the capacity to return to work for the employer or any other employment for which he would have the training or skills to perform. Thus, claimant does not have the capacity to earn the same or any part of the wages he was earning at the time of the injury. [13] I also find that claimant remained in his healing period at least until the date of the hearing. Claimant presented credible evidence that he has been referred by Dr. Slater to a pain clinic in order to receive injections, the last injections being in September 1998, approximately one month prior to the date of the hearing. Claimant is still under the care of Dr. Slater and requires occasional prescription pain medication for his condition. Further, no treating physician has stated that claimant has reached the end of his healing period. [14] Based on the above evidence, I find that claimant has met his burden of proof and accordingly, would affirm the opinion of the Administrative Law Judge. Therefore, I must respectfully dissent. [15] __________________________________ PAT WEST HUMPHREY, Commissioner