CLAIM NO. E604221
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 16, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID McCORMICK, Attorney at Law, Russellville, Arkansas.
Respondent represented by CALVIN GIBSON, Attorney at Law, Little Rock, Arkansas.
[1] OPINION AND ORDER[2] This case is before the Commission on remand from the Arkansas Court of Appeals. The Court reversed and remanded the Commission’s decision finding that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable knee injury on January 30, 1996. The Commission found that the claimant’s claim for benefits were barred under Ark. Code Ann. §11-9-102(5)(B) (Supp. 1997) which states:
(B) “compensable injury” does not include:
[3] The Commission found, based upon that statute, the claimant did not sustain a compensable injury but that the injury was the result of an assault by a co-worker. The Court reversed the Commission’s decision finding that the claimant was not an active participant in the assault. The Court stated in its opinion:(i) Injury to any active participant in assaults or combats which, although they may occur in the workplace, are the result of nonemployment-related hostility or animus of one, both, or all of the combatants, and which said assault or combat amounts to a deviation from customary duties; further, except for innocent victims, injuries caused by horseplay shall not be considered to be compensable injuries[.]
[4] The Court remanded this case to the Commission for an award of benefits to the claimant. Accordingly, we find that the claimant sustained a compensable injury. Because we find that claimant sustained a compensable injury, the respondent is responsible for all reasonable and necessary medical treatment as well as temporary total disability benefits. We must therefore make a determination as to the amount of temporary total disability benefits to which the claimant is entitled. [5] 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 (1981). 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, 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. MadButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [6] The claimant testified that she sustained an injury to her right knee on January 30, 1996. However, the claimant was able to work between the date of her injury until February 7, 1996. It was not until February 7, 1996 that the claimant was examined by a Dr. Robert May and was unable to continue working. Because she was not incapacitated from earning wages until the doctor took her off work, we find that the claimant’s entitlement to temporary total disability benefits began on February 7, 1996. [7] The claimant eventually came under the care of Dr. Scott Bowen. Dr. Bowen performed arthroscopic surgery on the claimant’s knee on April 17, 1996. The claimant was last examined by Dr. Bowen on May 2, 1996. In a report dated that same date, Dr. Bowen stated that: “I will have her return as needed.” The claimant has not returned for treatment and no return appointment was set up as of the date of the hearing (August 9, 1996). Based upon this evidence, we find that the claimant’s condition had stabilized and that her healing period ended as of May 2, 1996. [8] Therefore, for the reasons stated herein, we find that the claimant sustained a compensable injury to her knee on January 30, 1996. We also find that the claimant has proven by a preponderance of the evidence that she is entitled to temporary total disability benefits from February 7, 1996 to May 2, 1996. [9] Respondent is directed to comply with the award set forth herein. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [10] IT IS SO ORDERED.It is clear to us that the injury suffered by appellant does not fall under the exclusion of Arkansas Code Annotated section 11-9-102(5)(B)(i). The first words of the subsection plainly state that coverage is barred for injury “to any active participant in assaults or combats” (emphasis added). Evidence before the Commission shows that appellant had not clocked out and was sitting in a chair changing clothes. She was doing exactly what her employer required her to do and thus was performing services for employer. There was no evidence before the Commission from which reasonable minds could have concluded that appellant was an active participant in the assault upon her. Therefore, there is no evidence to uphold the Commission’s decision that appellant’s claim was barred by Arkansas Code Annotated section 11-9-102(5)(B)(i).
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[11] Commissioner Humphrey concurs.