CLAIM NO. E609586
Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 3, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE DAVID S. WILSON, III, Attorney at Law, West Memphis, Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
[1] ORDER[2] The respondents appeal and the claimant cross-appeals an opinion and order filed by the Administrative Law Judge on January 26, 1998. In that opinion and order, the administrative law judge found that the claimant has failed to prove by a preponderance of the credible evidence that his infectious process, which was diagnosed as osteomyelitis, is causally related to his compensable injury of July 15, 1996, and that the respondents are not responsible for any medical treatment rendered as a result of the claimant’s infectious process. However, the Administrative Law Judge also found that the claimant is entitled to additional temporary total disability benefits from September 4, 1996 through December 17, 1996. In addition the administrative law judge found that the claimant is entitled to a 15% whole body physical impairment as assessed by Dr. John Yocum, his primary treating physician for his compensable injury. After conducting a de novo
review of the entire record, we find that the decision of the administrative law judge must be vacated and this case remanded to the administrative law judge for additional findings. [3] Injured workers bear the burden of proving by a preponderance of the evidence that they are entitled to an award for a permanent physical impairment. Therefore, when considering claims for permanent physical impairments, the Commission must impartially weigh all of the evidence in the record to determine whether the preponderance of the evidence establishes that the worker sustained a permanent physical impairment as a result of a compensable injury. Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). Physical impairments occur when an anatomical, physiological, or psychological abnormality permanently limits the ability of the worker to effectively use part of the body or the body as a whole. Consequently, an injured worker must prove that the work-related injury resulted in a physical or psychological abnormality which limits the ability of the worker to effectively use part of the body or the body as a whole. Therefore, in considering such claims, the Commission must first determine whether the evidence shows the presence of an abnormality which could reasonably be expected to produce the permanent physical impairment alleged by the injured worker.Crow, supra. [4] With regard to this determination, Ark. Code Ann. §11-9-704(c)(1) (1987) provides that “[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.”Act 796 of 1993 amended the Arkansas Workers’ Compensation Law to define objective finding as “those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102(16) (Supp. 1997). In addition, as amended by Act 796, medical providers, administrative law judges, and this Commission cannot consider complaints of pain when determining physical or anatomical impairment. Id. Furthermore, the amended law provides that, “for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings.” [5] 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 he is within his healing period and totally incapacitated to earn wages. ArkansasState Highway and 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 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 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). [6] In the present case, after summarizing various evidence in the record, and without specifically citing either of the statutory requirements for establishing entitlement to temporary disability compensation the administrative law judge made the following finding of fact:
[7] On the issue of the claimant’s entitlement to a permanent anatomical impairment rating, the administrative law judge conducted the following analysis in finding that the claimant is entitled to a 15% whole body physical impairment rating assessed by Dr. Yocum:The claimant is entitled to additional temporary total disability benefits from September 4, through December 17, 1996.
[8] On the issue as to whether or not claimant has established a causal connection between his diagnosed osteomyelitis and his compensable back injury sustained on July 15, 1996, when the claimant slipped on a piece of rebar causing him to fall to the floor, the administrative law judge performed the following analysis:As pointed out above, Dr. Yocum did not treat the claimant for his infectious process but, rather, confined his treatment to the claimant’s injuries from an orthopedic standpoint. It is assumed by this examiner, after a complete review of the medical evidence, that Dr. Yocum assesses a 15% physical impairment rating from an orthopedic standpoint as a result of the injuries the claimant sustained to his low back and cervical spine on July 15, 1996, independent of the infectious process which manifested itself as osteomyelitis which was treated by Dr. Peak and Dr. Shults.
[9] In reviewing the analysis conducted by the administrative law judge, we are simply unable to ascertain on whatever evidentiary basis the administrative law judge concluded that the claimant has failed to prove by a preponderance of the evidence that his infectious problems between September and December of 1996, are not causally related to his compensable slip and fall on July 15, 1996. We are also unable to determine on what evidentiary basis the administrative law judge concluded that the claimant has proven by a preponderance of the evidence that he remained within his healing period and incapacitated to earn as a result of his work related slip and fall from September 4, 1996 through December 17, 1996. Likewise, we are unable to ascertain on what evidentiary basis the administrative law judge has concluded that the claimant has established a permanent anatomical impairment causally related to the July 15, 1996, slip and fall established by objective findings, and we are unable to ascertain on what evidentiary basis the administrative law judge’s concluded that the claimant has established that the July 15, 1996, slip and fall was the major cause of any permanent anatomical impairment rating that was assigned by Dr. Yocum and awarded by the administrative law judge. In short, we are unable to ascertain whether the administrative law judge actually relied on the evidence cited on his January 26, 1998 decision, whether he has perhaps relied on other evidence in the record not cited in the January 26, 1998 opinion, or whether perhaps the administrative law judge relied in part on evidence which was known to the administrative law judge but not submitted into the record in this case. [10] Because we are unable to ascertain on what evidentiary basis the administrative law judge concluded that the claimant has failed to establish the compensability of his infectious process, but has established his entitlement to additional TTD and a permanent anatomical impairment rating, we find that the administrative law judge’s decision in this case should be vacated and remanded for more specific findings on the requirements necessary to establish entitlement to the temporary total disability compensation sought and to the permanent impairment benefits sought. On remand, the administrative law judge is directed to cite any statutory standards and precedent relative to the issues presented in this case. In addition for each issue, the administrative law judge is directed to identify the evidence in the record relevant to his analysis on each requirement, and to specifically state the evidentiary basis for each requirement in which he has concluded that the claimant has or has not proven by a preponderance of the evidence the requirements necessary to establish an entitlement to the compensation requested. The administrative law judge is also directed to file his opinion and order containing the required findings within fifteen (15) days of the filing of this order. [11] IT IS SO ORDERED.Relative to the osteomyelitis and other infectious processes which claimant was contending with from September through December of 1996, he does not establish by a preponderance of the evidence that there is a causal connection between the infectious process and his compensable injury of July 15, 1996. Under Act 796 of 1993, there is a threshold requirement that claimant show a causal connection existing between his complained-of injury and his employment. See Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879
(1985).
Medical evidence in this case simply does not preponderate in favor of the claimant’s assertion that his infectious difficulties are related to his compensable injury of July 15, 1996.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents.