DeLOACH v. MANPOWER, INC., 1998 AWCC 224

CLAIM NO. E417554

PATRICIA DeLOACH, EMPLOYEE, CLAIMANT v. MANPOWER, INC., EMPLOYER, RESPONDENT and CNA, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 17, 1998

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE JANIE McNUTT, Attorney at Law, Conway, Arkansas.

Respondents represented by the HONORABLE LEE J. MULDROW, Attorney at Law, Little Rock, Arkansas.

[1] OPINION AND ORDER
[2] This case comes before the Full Commission on remand from the Arkansas Court of Appeals. In an opinion delivered April 8, 1998 (CA97-1115), the court reversed a Full Commission opinion filed May 22, 1997 and remanded for the Commission to enter findings of fact on the issue of additional temporary disability compensation. [3] The parties stipulated that the claimant sustained a compensable back injury on October 25, 1994. The claimant, age 43, hurt her back while placing a heavy pallet on the floor. Dr. Cynthia Almond diagnosed acute lumbosacral strain and sciatica and treated the claimant conservatively. The respondents began paying temporary total disability benefits on October 31, 1994. [4] Dr. J. Tod Ghormley, an orthopaedic surgeon, examined the claimant on November 15, 1994. Dr. Ghormley’s impression was facet syndrome, and he continued conservative treatment. A MRI of the lumbar spine was taken on December 9, 1994. The radiologist’s impression was central bulge of the L5-S1 intervertebral disc, and soft tissue injury of the patient’s mid-back. On January 25, 1995, Dr. Ghormley administered facet injections at left L3-4, L4-5, and L5-S1. The record indicates that the claimant did not benefit from facet injections. [5] Another orthopedist, Dr. C. Lowry Barnes, followed the claimant beginning on March 28, 1995. Dr. Barnes reported that the claimant has some spina bifida occulta at L-5 and significant degenerative changes at the L4-5 and L5-S1 interspaces. Dr. Barnes stated that the claimant was in need of intensive physical therapy, weight loss, and cessation of smoking. Physical therapy did not reduce the claimant’s persistent pain complaints. Dr. Barnes’ records indicate that ice packs were the only treatment in physical therapy which the claimant deemed beneficial, and Dr. Barnes ultimately terminated the claimant’s physical therapy. [6] Dr. Barnes referred the claimant to a pain management specialist, Dr. Bruce Safman, for further evaluation and treatment. Dr. Safman examined the claimant on April 18, 1995. Dr. Safman stated that neither the spina bifida nor the degenerative changes were related to the claimant’s compensable injury. Dr. Safman believed that the claimant suffered from a chronic soft tissue strain and performed an injection of Decadron and Xylocaine to the claimant’s left sacroiliac. In addition, Dr. Safman indicated:

I will permit her to return to work half days with a pound lifting restriction and a restriction against repetitive bending, lifting, and stooping; and a permit for her to sit and stand as mandated. Hopefully, she will be permitted to return to work with these restrictions. I will liberalize this as time evolves.

[7] The respondents discontinued paying temporary total disability and began paying the claimant temporary partial disability on April 18, 1995. In addition, the respondents offered the claimant a job within Dr. Safman’s restrictions; however, the claimant did not attempt the offered employment.

On May 9, 1995, Dr. Barnes reported the following:

Ms. DeLoach returns today and is not very happy. She says that she is returning to see me because her attorney wants me to continue her care. I have told her that I thought we have made appropriate referral to Dr. Safman, but she was not pleased with Dr. Safman.
She does report that she had terrible pain and swelling from her injection by Dr. Safman. Dr. Safman had suggested that she return to work at half-days with limited lifting and restriction against repetitive bending, lifting, and stooping. She says that she did not return to work because she was unable to do so. * * *
I have tried to talk to Ms. DeLoach about her problem. I was quite honest with her and told her that she had signs of nonorganic back disease. I tried to explain to her that this meant that something else was going on to be causing her pain other than an orthopaedic type injury. I told her that sometimes this could be secondary to psychological overlay and this is not unusual in chronic problems such as this. I have told her that the other option would be malingering.
Before I even told her this, she was quick to tell me that she was not faking.

* * *

I attempted to discuss a work re-entry program with her, but she was not interested in hearing this.

[8] The respondents terminated indemnity benefits on May 9, 1995. Dr. Thomas Fletcher, a neurosurgeon, evaluated the claimant on December 21, 1995. Following that evaluation, Dr. Fletcher reported:

I have reviewed the lumbar spine x-rays. On the MRI study of the lumbar spine, it is my opinion that these films show that she has a spina bifida occulta of the L5 vertebral posterior elements, an increased lumbar lordotic curve with posterior direction of the sacrum, and an L5-S1 lumbar disc protrusion. It is not a large protrusion but it is definite and extends somewhat more to the left side.
I think the disc protrusion at L5-S1 is the cause of her symptoms. It is not causing severe nerve root compression to the degree of causing motor weakness but it is also possible that there may have been further protrusion or progression since the MRI scan made over a year ago. I do not think it will be altered by manipulation or chiropractic treatments which may give her some relief of discomfort but will not be curative.
The primary factor that has caused continuation of her symptoms have been her obesity as well as the marked lumbar lordotic curve in her lower back. These impair her ability to wear a brace efficiently. Eventually this disc lesion may progress to the point that she may require surgery but she does not wish to undergo this.

[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 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 she is within her healing period and suffers only a decrease in her capacity to earn wages that she was receiving at the time of injury. Id. Ark. Code Ann. § 11-9-102(13) (Repl. 1997) defines “healing period” as the period necessary for the healing of an injury resulting from an accident. 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. The claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Moreover, persistent pain does not suffice, 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] We find that the claimant failed to prove by a preponderance of the credible evidence that she was incapacitated from earning wages after May 9, 1995. On April 18, 1995, Dr. Bruce Safman opined that the claimant could return to work, with restrictions. At that point, the respondents began paying temporary partial disability benefits and offered the claimant a job with Dr. Safman’s restrictions. Nevertheless, the claimant made no attempt to work. The claimant maintained that she was in too much pain to try to work. However, Dr. Barnes’ May 9, 1995, report indicates that the claimant’s subjective pain complaints were not consistent with the claimant’s diagnostic and clinical findings, and that same report indicates that Dr. Barnes, like Dr. Safman, felt that the claimant was capable of returning to work but was simply not interested in attempting further work. [11] In addition, we find that the claimant has failed to prove by a preponderance of the evidence that she remained within her healing period from her work-related injury after May 9, 1995. Prior to that date, the claimant received treatment from at least two orthopedic specialists and a pain specialist, among other physicians. The claimant underwent x-ray and MRI diagnostic testing, facet joint injections, sacroiliac injection, and physical therapy. By May 9, 1995, Dr. Barnes did not have any recommended treatment remaining which might further improve the claimant’s October 25, 1994 injury, in addition to those treatments already implemented. The medical record indicates that the only prescribed treatment which the claimant apparently found beneficial was ice packs, and the claimant has acknowledged that her subsequent chiropractic treatment did not provide any long-term relief to her pain complaints. In addition, Dr. Thomas Fletcher, a neurosurgeon who evaluated the claimant in December of 1995, indicated that neither injections, physical therapy or chiropractic would alter the permanent nature of the abnormality (L5-S1 disk protrusion) that he attributed the claimant’s persistent pain complaints to at that time. On this record, we find that the claimant’s work-related injury was as far restored as the permanent nature of the injury would permit by May 9, 1995. [12] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove that she remained in her healing period or incapacitated to earn wages beyond May 9, 1995. We therefore find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary disability compensation past May 9, 1995. [13] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[14] Commissioner Humphrey dissents.