CLAIM NO. E616777
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 13, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by THEODOR STRICKER, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] Respondent appeals a decision of the Administrative Law Judge filed on September 12, 1997, finding that claimant is entitled to temporary total disability benefits from December 12, 1996 through February 11, 1997. Based upon our de novo review of the entire record, we find that claimant has failed to prove that she remained totally incapacitated from earning wages subsequent to December 20, 1996. Claimant has not appealed the Administrative Law Judge’s finding that she is not entitled to a change of physician. Accordingly, we affirm this aspect of the Administrative Law Judge’s opinion. [3] Claimant sustained a compensable injury to her right ankle on December 12, 1996. As a result of her injury, claimant underwent surgery at the hands of Dr. Joseph Yao. Dr. Yao initially released claimant to return to work on December 16, 1996, but modified his release after claimant’s return visit. After examining claimant on December 16, 1996, Dr. Yao determined that claimant could return to work in a seated capacity after December 20, 1996. Temporary total benefits do not, in all cases, correspond to the healing period; temporary disability is not based on the claimants healing period, but is awarded where the claimant’s injury-caused incapacity prevents him from earning the wages he was receiving at the time of the injury. County Mkt. v.Thornton, 27 Ark. App. 235, 770 S.W.2d 156, supp. op. reh’g denied. 27 Ark. App. 241-A, 771 S.W.2d 793 (1989). [4] Dr. Yao’s deposition makes it clear that claimant remained in her healing period. However, a review of Dr. Yao’s records and of the respondent’s light-duty accommodation makes it clear that claimant has failed to prove that she remained totally incapacitated from earning wages after being released to light-duty, seated work by Dr. Yao on December 20, 1996. [5] Mr. Danny Manning, respondent employer’s safety manager testified at length regarding the accommodation respondent would make available for claimant in a light-duty capacity. Mr. Manning explained that light-duty work in the first aid station and human resource office would be made available to claimant and could specifically be performed in a seated position. Mr. Manning also indicated that the company would accommodate claimant and allow her to utilize her ice therapy as often as needed. Finally, because claimant would be restrained to a wheelchair, Mr. Manning testified that should assistance be necessary, a female would be available to assist claimant in the ladies room. In light of respondent’s willingness to accommodate claimant’s restrictions, and its offer of assistance whenever necessary, we find that claimant has failed to prove by a preponderance of the evidence that she remained totally incapacitated from earning wages after she was released to return to work in a seated capacity on December 20, 1996. Claimant’s refusal to return to work after being released by Dr. Yao on December 20, 1996, had nothing to do with her incapacity to earn wages. Clearly, respondent’s willingness to assist claimant in whatever manner necessary to accommodate her restrictions militates against a finding that claimant was totally incapacitated from earning wages. Respondent’s accommodations would allow claimant to earn wages although she remained within her healing period. [6] Accordingly for those reasons set forth herein, we find that the decision of the Administrative Law Judge awarding temporary total disability benefits subsequent to December 20, 1996, should be, and hereby is, reversed. [7] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[8] Commissioner Humphrey dissents. [9] DISSENTING OPINION[10] I must respectfully dissent. I would affirm the decision of the Administrative Law Judge finding that claimant is entitled to temporary total disability benefits from December 12, 1996, through February 11, 1997. [11] Claimant sustained a compensable injury on December 12, 1996, when she slipped in some oil that had leaked from a machine and suffered a substantial right ankle fracture. Dr. Joseph Yao surgically repaired claimant’s ankle that same day, a procedure which involved open reduction and internal fixation. During his deposition, Dr. Yao agreed that claimant’s injury was “fairly severe.” [12] Dr. Yao initially felt that claimant could return to work on December 16, 1996, but thereafter determined that December 20, 1996, would be a more appropriate date. Claimant’s job at the time of her injury was that of “knitter,” which required her to be on her feet most of the day and keep a number of machines operating. [13] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep’t. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). With regard to the first requirement, it can safely be said that claimant remained in her healing period well beyond February 11, 1997, given Dr. Yao’s deposition testimony of September 16, 1997. However, in my opinion, claimant was also totally incapacitated to earn wages until at least February 12, 1997. [14] I note first of all claimant’s own credible testimony, which is corroborated to a large extent by that of her husband. Claimant explained that she received powerful pain medications such as Mepergan upon leaving the hospital (December 13, 1996), as well as instructions to take them every two hours. Claimant further stated that when she was expected to return to work on December 16, she was too sick from the medication to do so and that Dr. Yao extended her time off until December 20. Dr. Yao’s written comments of December 16, 1996, do in fact mention that he held claimant off work until December 20 “in order to give her time to allow the acute pain to subside.” [15] On December 23, 1996, Dr. Yao noted that claimant was “primarily using a wheelchair.” In addition, claimant still retained her staples and suffered from swelling about her lower extremity at that time. As a result, Dr. Yao recommended ice, elevation, and no weight-bearing for claimant’s right leg. Claimant’s ankle remained swollen as of December 30, 1996, to the extent that Dr. Yao again declined to remove her staples “in order to prevent wound dehiscence.” By January 30, 1997, claimant still utilized an elastic support hose and elevation to combat swelling, but Dr. Yao did note that she was “trying to walk more.” Not until February 11, 1997, did Dr. Yao’s communication to respondent employer begin to sound more promising:
[16] As stated above, I find that claimant was totally incapacitated to earn wages until at least February 12, 1997. Prior to that time, claimant continually suffered from pain, nausea, and swelling. In addition, she remained on prescription medication at least until the end of January, 1997. These medications included Darvocet, which Dr. Yao testified could make one drowsy and nauseated and agreed that it could “possibly” slow one’s capacity for physical manipulations or clear thinking. Likewise, Dr. Yao stated that Phenergan could “make a person drowsy and also make a person slower in terms of their reactions, as you described for the Darvocet.” [17] Furthermore, Dr. Yao’s restrictions did not provide for limited standing until February 11, 1997, meaning that claimant would have to be seated for her entire work shift and utilize a wheel chair for maneuvering had she returned to light duty before that date. At the same time, Dr. Yao recommended continued elevation of the extremity and indicated the need for periodic icing. I have a difficult time envisioning someone being able to productively work on a regular and continuous basis in a seated position while maintaining appropriate lower extremity elevation and engaging in the disruption of periodic icing — all the while avoiding contact between the damaged extremity and the (oft-bustling) persons and things around her. And, of course, claimant utilized at least some degree of prescription pain medication, a factor which would seemingly render her a precarious worker at best. [18] In sum, under the circumstances outlined above, I am persuaded that claimant’s return to work before February 11, 1997, was so impracticable as to render her totally incapacitated to earn wages until that time. Only when she was able to begin standing for limited periods on February 12, 1997, were most of these barriers removed. I would thus find that claimant is entitled to an award of temporary total disability benefits from December 12, 1996, through February 11, 1997. [19] For the reasons set out above, I respectfully dissent. [20] PAT WEST HUMPHREY, CommissionerShe is now hardly using her wheelchair. She is walking with either one crutch or her walker. Her right ankle and foot still swell, but overall the swelling is decreasing . . . Tylenol is sufficient to help relieve the pain. She has not used any of the Ultram that was prescribed at the last visit.