CLAIM NO. E220260
CHARLOTTE CUNNINGHAM, EMPLOYEE, CLAIMANT v. ST. JOSEPH’S REGIONAL HEALTH CENTER, EMPLOYER, RESPONDENT and AETNA INSURANCE CO., INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 15, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE C. BURT NEWELL, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on March 31, 1994. In that opinion and order, the administrative law judge found that the claimant is entitled to temporary total disability compensation through October 29, 1993. After conducting ade novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge’s decision must be reversed.
[3] The claimant began working for the respondent employer as a certified nursing assistant on December 8, 1991. On November 3, 1992, she sustained an admittedly compensable back injury while attempting to pull a patient up in his bed. The claimant was treated for this injury by Dr. James Arthur, a neurosurgeon. Dr. Arthur’s clinical examination revealed a positive response to the straight leg raising maneuver and a limited range of motion. However, the examination did not reveal any neurological deficit. The claimant is too large to undergo a MRI, so Dr. Arthur performed a lumbar myelogram on November 19, 1992, which revealed normal results. Consequently, Dr. Arthur treated the claimant conservatively with medication and physical therapy. Dr. Arthur examined the claimant again on November 23, 1992, and on December 9, 1992, and again, on each of these occasions, he determined that she was neurologically intact. He next examined her on December 30, 1992, and he indicated at that time that the claimant was “doing much better now.” Dr. Arthur testified that his examinations and diagnostic studies of the claimant did not reveal any evidence of a herniated disc or other lumbar abnormalities. Therefore, Dr. Arthur concluded that the claimant suffered from myofascial pain. [4] On approximately January 24, 1993, JoAnn Tadlock, an employee of the respondent employer, called Dr. Arthur’s office and inquired about the possibility of a release to light duty work for the claimant. According to Ms. Tadlock’s testimony, the respondent employer attempts to make light duty work available to its injured employees to get them back into the work place, and she testified that she made physicians aware of this program whenever an employee was off for a period of time with only minimal clinical and diagnostic findings, such as the situation with the claimant. On January 25, 1993, Dr. Arthur did release the claimant to light duty work, indicating that she was restricted from lifting over 25 to 30 pounds. Due to Dr. Arthur’s release, the claimant reported to work on January 26, 1993. The claimant’s supervisor, Marsha Hamilton, provided the claimant with a list of general duties which were within the restrictions imposed by Dr. Arthur. Ms. Hamilton testified that she advised the claimant not to lift anything over 25 to 30 pounds or to bend or stoop. According to Ms. Hamilton, the work provided was much less strenuous than the claimant’s normal duties, and her testimony indicates that she was willing to make any accommodations necessary to assist the claimant. She testified that a full staff was on duty in addition to the claimant and that the claimant was merely an extra employee intended to assist the other as much as she was capable. [5] Nevertheless, Ms. Hamilton testified that the claimant indicated when she first arrived at work that she did not feel that she could do anything, and Ms. Hamilton’s testimony indicates that the claimant made only minimal efforts to attempt the offered duties. In addition, Ms. Hamilton testified that the claimant’s physical mannerisms changed when she arrived at work. In this regard, Ms. Hamilton testified that the claimant was walking in a stooped position and complaining of pain when she arrived at the station on the floor. However, Ms. Hamilton testified that she observed the claimant walking into the hospital and that the claimant did not demonstrate any of these physical limitations at that time. In addition, Ms. Hamilton testified that she had observed the claimant coming to the hospital for physical therapy and that she had not demonstrated any of these physical limitations. In any event, the claimant only worked four hours on January 26, 1993. According to Ms. Hamilton, the claimant advised her that she was unable to perform any duty she attempted, and the claimant ultimately advised her that she wanted to go home. The claimant did go home. However, she was advised that she would have to report for work or present a doctor’s note indicating that she was not capable of performing the work provided. When she did not do either, her employment was terminated. [6] The claimant returned to Dr. Arthur on January 29, 1993, and based on her contention that she was unable to work on January 26, 1993, Dr. Arthur referred her to Dr. Ray, a physiatrist, for consideration of a rehabilitation program. However, the respondents refused to authorize treatment by Dr. Ray, and, instead, they sent the claimant to Dr. Robert Abraham, also a neurosurgeon. After examining the claimant in February of 1993, Dr. Abraham’s findings were similar to those of Dr. Arthur, and Dr. Abraham also recommended a rehabilitation program. The claimant is extremely obese, and both Dr. Arthur and Dr. Abraham indicated that the claimant needed to lose a considerable amount of weight before a reliable evaluation of her condition could be provided. Apparently, the claimant has attempted to lose weight, but she has been unable to do so. [7] The respondents discontinued temporary total disability compensation payments as of January 24, 1993, and a hearing was held on May 10, 1993, to determine the claimant’s entitlement to additional medical treatment and temporary total disability compensation. As a result of that hearing, the administrative law judge filed an opinion and order on June 23, 1993, finding that the respondents were responsible for reasonable and necessary medical treatment. However, the administrative law judge reserved the issue of temporary total disability compensation pending further development of the medical evidence. Neither party appealed the administrative law judge’s June 23, 1993, decision. [8] The claimant returned to Dr. Arthur on May 23, 1993, with complaints similar to those in January of 1993. However, again, Dr. Arthur’s examination did not produce any sign of neurological deficit. Consequently, he diagnosed myofascial pain based on her subjective complaints. Also based on the claimant’s continued subjective complaints, Dr. Arthur ordered physical therapy consisting of pool therapy for thirty minutes each day. He examined the claimant on August 30, 1993, and on October 29, 1993, and his findings on each of these visits were similar to his previous findings. Furthermore, Dr. Arthur testified that the claimant’s condition had not changed in any regard even as late as the October 29, 1993, visit. In fact, his testimony indicates that the claimant’s condition had worsened, if anything. In addition, he testified that nothing had changed regarding his opinion that the claimant was capable of returning to light duty work at least by January 25, 1993. Also, although claimant contends that the pool treatment was helping her, Dr. Arthur concluded that it was providing no benefit, and he discontinued it. [9] 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 Highwayand 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 she is within her healing period and suffers only a decrease in his 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 (6) (1987). 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). [10] In the present claim, we find that a preponderance of the evidence establishes that the claimant’s healing period ended at least by January 24, 1993. Dr. Arthur acknowledged that he had found nothing to substantiate the claimant’s continued complaints by that time, other than minor range of motion limitations. Furthermore, the minimal findings that his examinations did reveal prior to that time and afterward were not consistent with the degree of problems that the claimant complained of experiencing. Moreover, by that time, Dr. Arthur had concluded that he had nothing further to offer the claimant with regard to treatment aimed at improving her condition. Also, while the pool therapy ordered by Dr. Arthur may have provided temporary symptomatic relief, Dr. Arthur concedes that this treatment did not improve her condition. In fact, Dr. Arthur concedes that the claimant’s condition in October of 1993 was worse, if anything, than it was in January of 1993. Significantly, we note that the respondents made a good faith effort to provide work which was within the claimant’s physical limitations, but she failed to take advantage of the respondents’ offer or to provide medical evidence showing that she was incapable of doing so. Consequently, we find that the claimant’s condition stabilized and that she had improved to the extent that the permanent character of her condition would permit at least by January 24, 1993. Therefore, we find that her healing period ended on that date. [11] Accordingly, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge’s decision must be reversed. [12] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[13] Commissioner Humphrey dissents.