CLAIM NOS. E406069 E408250
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 21, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID LASHFORD, Attorney at Law, Texarkana, Texas.
Respondent represented by CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on February 10, 1999, finding that the claimant was temporarily totally disabled for the period beginning April 23, 1994 through April 26, 1994, and from July 1, 1994 continuing through April 30, 1997. Based upon our de novo review of the record, we find that the claimant has failed to meet her burden of proof. Accordingly we reverse the decision of the Administrative Law Judge finding that the claimant was temporarily totally disabled from July 1, 1994 through April 30, 1997. We find that the claimant’s healing period ended on July 11, 1994. Accordingly, the claimant is entitled to temporary total disability benefits for the period July 1, 1994, to July 10, 1994. However, the respondents are awarded a credit against liability for this period based upon the temporary total disability paid from April 19, 1995 to June 25, 1995. [3] The claimant was employed by the respondent as a checker. The claimant is a high school graduate and has completed approximately two years of post secondary education at Texarkana Community College towards a degree in data processing. The claimant has taken secretarial courses and has secretarial skills from past experience. She is familiar with Windows for computers and a data entry program called Peachtree. In addition, the claimant completed a correspondence course for bookkeeping in 1996. Prior to her work with the respondent, the claimant worked as a cashier/order taker at McDonald’s and as a hostess at Denny’s. [4] The claimant sustained an admittedly compensable injury on March 30, 1994. She was reaching across a counter to help a customer lift a tent out of a shopping cart when she hurt her right hand and wrist. The claimant sought treatment from Dr. David McKay and was given a splint to wear on her right wrist. The claimant was placed on light duty working as a door greeter. Approximately three months later, on June 30, 1994, the claimant began reporting pain in her left hand and wrist. The claimant’s duties as a door greeter included greeting customers entering the store and tagging returned items. [5] On July 1, 1994, Dr. McKay found that the claimant had a “mild left wrist strain”. The claimant was returned by Dr. McKay for restricted duty the same day with the restriction of not using her left hand for the next ten days. Dr. McKay also continued the claimant’s restrictions relating to her right wrist as well. Consequently, the claimant was restricted from working with either hand for ten days. Because the claimant could not work with either hand, she was told that the store had no light-duty positions available within her restrictions. The claimant has not worked for the respondent since July of 1994 and has not attempted to return to work after the expiration of the ten day restriction on her left hand. [6] The claimant eventually came under the care of Dr. Roshan Sharma, a physical medicine and rehabilitation specialist. In a report dated August 15, 1994, Dr. Sharma diagnosed the claimant with tenosynovitis of both wrists and tendons and possible carpal tunnel syndrome. Nerve conduction studies were normal. Dr. Sharma gave the claimant a different version of splints to wear and recommended nonsteroidal inflammatory medications and intensive therapy at least four times a week. [7] The claimant then began treatment with Dr. Berry Green. Dr. Green found that the claimant presented symptom magnification and did not exert her full effort during her examination. In a report dated July 11, 1995, Dr. Green found that the claimant could return to light-duty and that her problem was repetitive use. Dr. Green noted that as long as the claimant did not do repetitive work she would be able to work. [8] On December 7, 1995, the claimant was treated by Dr. Greg Smolarz. Dr. Smolarz reported that the MRI and x-rays of the claimant’s wrists were normal. Dr. Smolarz noted no abnormalities. Dr. Smolarz also noted that the claimant requested that he fill out some paperwork indicating that she was unable to work. He told the claimant that he had not seen her for over a year and a half and he would be unable to verify that she was unable to work during that period of time. [9] The claimant was then evaluated by Dr. Tom Frazier, an orthopedic specialist, on January 20, 1996. Dr. Frazier noted in a report dated February 13, 1996, that the claimant refused to wear a splint and that she showed no obvious signs of swelling or deformity. Dr. Frazier was unsure of the etiology of the claimant’s continued complaints. However, the claimant was pregnant and additional testing could not be done. Dr. Frazier released the claimant to return on a PRN basis. [10] Dr. McKay, in a letter dated March 11, 1996, stated:
[11] The claimant eventually came under the care of Dr. James H. Abraham, a rheumatologist, on March 21, 1996. Dr. Abraham examined the claimant and opined that she may have some sort of a repetitive injury syndrome but he wanted to pursue testing to rule out other possibilities such as carpal tunnel syndrome and early inflammatory arthritis. The claimant had EMG and nerve conduction studies along with other tests that produced normal results in all respects. Dr. Abraham was unable to find any objective evidence of inflammation or nerve damage. He noted that her pain and paresthesia were limiting problems that were completely subjective symptoms and not measurable. Dr. Abraham stated that whether she could work would depend exclusively on how much pain she has and how much that limited her. The claimant went to work for West Teleservice earning $7.00 an hour on January 23, 1998. [12] 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 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 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) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of her 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. 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 our opinion, the medical evidence fails to support a finding that the claimant’s healing period extended from July 1, 1994 through April 30, 1997. The claimant has undergone a myriad of tests including x-rays, MRI’s, EMG’s and nerve conduction studies all of which were normal. All the claimant’s doctors have recorded that the claimant presented subjective complaints of pain and swelling. In addition, Dr. Green found that the claimant presented symptom magnification and failed to exert full effort during her examination. It is clear that the claimant has been receiving treatment for her subjective complaints only. It is well established that the persistence of pain does not prevent a finding that the healing period is over, provided that the underlying condition has stabilized. [14] The evidence also fails to indicate that the claimant was incapacitated from earning wages. The claimant’s physicians have stated that the claimant was able to work but that she could not do repetitive work. Further, the claimant has two years of college and other skills that she could use in obtaining a job. Moreover, Dr. Smolarz, in a report dated December 1995, noted that the claimant requested that he fill out some paperwork indicating that she was unable to work. The claimant’s husband is on social security disability for a work related injury and is no longer employed. [15] There is absolutely no reason whatsoever why the claimant could not have worked in her current field of employment, prior to January 23, 1998. The evidence shows that the claimant was going to school and taking correspondence courses where she had to use a computer for data entry. The claimant’s current position is as a telephone callback analyst. The claimant’s job requires her to talk to potential customers using a headset receiver. She does not even have to dial the phone numbers. In fact, the claimant testified she does not have to do as much and that she admits she is able to perform her job duties at West TeleService. [16] In our opinion, the claimant has failed to prove that she was totally incapacitated from earning wages in this time period. The claimant got pregnant during this time period for which she now seeks additional benefits. Her complaints to the physician are purely subjective complaints of pain and are insufficient to extend the healing period. We find that her healing period ended on July 11, 1994. Therefore, after reviewing all the evidence, impartially without giving the benefit of the doubt to either party, we find that the claimant is not entitled to any temporary total disability benefits after July 11, 1994. The respondents are hereby awarded a credit against liability for the period July 1, 1994 to July 10, 1994 based upon the temporary total disability paid to the claimant for the period of April 19, 1995 to June 25, 1995. [17] IT IS SO ORDERED.It is my opinion that she had a mild wrist sprain of her right wrist and possibly her left wrist, although the history on the left wrist is a little suspect. I feel that she should have fully recovered from this injury. She still has subjective pain in the right wrist. There is no objective finding to substantiate why she is still having the pain in the right wrist.
Using the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, I feel that she has 0% percent impairment from the specific injury to her right wrist in April of 1994. I feel that patient really could have returned to limited duty work, as was recommended to her, with a wrist splint, anti-inflammatory medications and limitations of not using the right hand or wrist. I do not feel that there is any justification for her being off of work for any period of time. From her history and her exams several times, I think this was a minor injury. This is within a reasonable degree of medical certainty.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[18] Commissioner Humphrey dissents. [19] DISSENTING OPINION[20] I must respectfully dissent from the finding of the majority that claimant’s healing period ended on July 11, 1994. In my opinion, claimant is entitled to temporary total disability benefits for the time frames enumerated in the Administrative Law Judge’s opinion. [21] Claimant sustained admittedly compensable injuries on March 30, 1994, and June 30, 1994, to her right wrist and left wrist respectively. She has not worked for respondents since July of 1994. Claimant was working as a cashier at the time of her first injury. Based on restrictions imposed by Dr. McKay for claimant’s right wrist injury, claimant was placed on light duty and performed the job of a “door greeter.” Following her second injury, Dr. McKay imposed restrictions on claimant’s left upper extremity. This was done on July 10, 1994. Respondent employer advised claimant that they could not accommodate her restrictions. Claimant attempted to return to work for this employer; however, her request for employment was refused. [22] In August of 1994, Dr. Sharma evaluated claimant. In a report dated August 15, 1994, he noted “slight puffiness over the dorsum of the right hand.” Moreover, he stated that an x-ray of claimant’s right hand “showed possible soft tissue swelling about the flexor surface of the distal radius.” He recommended diagnostic testing and “an intensive therapy, at least 4 times a week,” as well as medication. His report reflects that claimant’s previous course of physical therapy was “short-lived and inadequate.” However, respondent carrier failed to authorize the treatment plan. [23] At the direction of respondents, Dr. Berry Green examined claimant in March of 1995. Dr. Green advised the insurance carrier of the results of his examination in a letter dated April 19, 1995. He opined that claimant’s tests suggested symptom magnification. Nevertheless, Dr. Green stated that claimant had not reached maximum medical improvement, and he recommended steroid injections. His report also indicated that since further treatment was warranted, an impairment rating would be premature. [24] However, claimant never received the treatment outlined by Dr. Green, a fact acknowledged by Karin Dixon, Lab Manager, Health South, in a letter to a legal advisor dated August 2, 1995. Unfortunately, Dr. Green was unaware of this lack of treatment when he opined on July 11, 1995, that claimant could return to light duty. Moreover, he stated that specific restrictions could be enumerated only with a job description, which he did not possess. [25] Dr. Smolarz diagnosed tendinitis on December 7, 1995. He prescribed physical therapy and medication. He indicated that it was his goal to return claimant to the workforce. Claimant was referred to Dr. Frazier. He evaluated claimant on January 30, 1996 and observed swelling over both wrists. Dr. Frazier’s report indicated that claimant’s symptoms were compatible with “de Quervain’s first dorsal compartment tenosynovitis of both wrists, although all of her complaints certainly are not compatible with tenosynovitis.” He injected claimant’s right wrist, and applied a Spica splint to her thumb. [26] Claimant received a referral to Dr. Abraham, and he examined claimant on March 21, 1996. He ordered testing, which was canceled due to claimant’s pregnancy. Claimant delivered her child in September of 1996. She returned to Dr. Abraham on March 27, 1997. He concluded that claimant sustained a repetitive injury syndrome. Dr. Abraham explained that he arrived at this diagnosis after ruling out other potential causes of her symptoms. Thus, his diagnosis is one of exclusion. Dr. Abraham set out his findings in a report dated April 30, 1997. Claimant has not received medical treatment for her compensable injuries since March of 1997. Although there were times during which claimant did not obtain medical treatment, she specifically testified that she remained unable to work from July of 1994 through April of 1997. She explained that besides hand pain, her hands swelled with increased activity. For example, she testified that dish washing caused bilateral hand swelling. Claimant stated that due to her compensable injuries, her family performed household tasks. [27] Respondents argue that the persistence of pain alone may not extend the healing period; therefore, claimant has failed to prove entitlement to temporary total disability benefits. Although this is a correct statement, the evidence shows that claimant presented with other findings. In August of 1994, Dr. Sharma detected slight “puffiness over dorsum of the right hand” Moreover, after viewing claimant’s x-rays taken on July 1, 1994, he noted the left wrist “showed possible soft tissue swelling about the flexor surface of the distal radius.” He added that claimant needed physical therapy four times each week. In making this recommendation, he characterized the previous course of physical therapy as inadequate. In January of 1996, Dr. Frazier observed swelling, which is clearly an objective finding. Claimant also complained of numbness. Although pain and numbness are subjective findings, an award of temporary total disability benefits is not contingent upon the presence of objective findings. [28] It is true that in a letter to counsel for respondents, Dr. Green opined on July 11, 1995, that claimant could return to light duty work. However, in a letter dated April 19, 1995, he opined that claimant would not reach maximum medical improvement until she received the treatment he proposed. In a letter dated August 2, 1995, to a legal advisor, Karin Dixon, an employee of HealthSouth, stated:
[29] Since claimant had not received the recommended treatment when he wrote to respondents’ counsel on July 11, 1995, Dr. Green’s opinion that claimant could return to light duty work is entitled to no weight at all. [30] Respondents also point to the report of Dr. Smolarz dated December 7, 1995. He said that he had not seen claimant for about 18 months; therefore, he was unable to certify her disability during that time period. However, he identified improving claimant’s condition so that she could return to the work force as a treatment goal. I interpret the comments of Dr. Smolarz as an indication that claimant was temporarily totally disabled at the time of her office visit. However, Dr. Smolarz refused to offer an opinion retroactively based on his lack of personal knowledge. [31] Although Dr. McKay stated on March 11, 1996, that he had not seen claimant since July 1, 1994, he nevertheless opined that there was no justification for claimant to miss work for “any period of time.” In my view, his opinion is entitled to no weight. By his own admission, he has not examined claimant since July of 1994. He is simply not able to offer an opinion with respect to claimant’s disability status. [32] In considering claimant’s claim for temporary total disability benefits, it is important to note that in a report dated April 30, 1997, Dr. Abraham pointed out the difficulty of treating repetitive injury syndromes. Moreover, in response to an inquiry from claimant’s counsel dated October 6, 1996, Dr. Abraham stated that his diagnosis was one of exclusion. Although claimant’s work-related incidents appear to be relatively minor, they produced syndrome that is both difficult to diagnose and treat. [33] I would affirm the Administrative Law Judge’s decision. [34] Based on the foregoing, I respectfully dissent. [35] _________________________________ PAT WEST HUMPHREY, CommissionerDr. Green replied in a letter on July 11, 1995 (Attachment 4) that she could return to light duty but he would need a job description to determine her restrictions. He dictated this letter without the understanding that [claimant] had not had her injections and treatment that he recommended. We were notified by [claimant] that her job had been terminated with Wal-Mart prior to the letter dated July 11, 1995.