GARRETT v. WILSON’S HEATING AIR CONDITIONING, INC., 1999 AWCC 207

CLAIM NO. E714616

ROGER GARRETT, EMPLOYEE, CLAIMANT v. WILSON’S HEATING AIR CONDITIONING, INC., EMPLOYER, RESPONDENT and FEDERATED MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 14, 1999

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

Claimant represented by the HONORABLE STEPHEN SHARUM, Attorney at Law, Fort Smith, Arkansas.

Respondents represented by the HONORABLE CONSTANCE G. CLARK, Attorney at Law, Fayetteville, Arkansas.

Decision of administrative law judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed November 25, 1998. The administrative law judge found that the claimant has proven that he is entitled to additional temporary total disability benefits beginning July 7, 1998 and continuing through a date yet to be determined. The administrative law judge also found that the claimant has proven that he is entitled to payment for medical treatment received by Dr. Landherr, including a myelogram; the respondents do not appeal this finding and in fact indicate that the myelogram has been performed. The Full Commission has reviewed the entire record de novo, and we affirm the opinion of the administrative law judge. [3] The parties stipulated that the claimant, age 37, sustained a compensable injury to his back on November 18, 1997. While changing a refrigeration compressor, claimant testified, “I kind of twisted around in a real muddy spot and pulled a kink in my back. It was a real sharp pain when I did it, it felt like somebody stabbed me.” The respondents accepted compensability and began paying medical expenses and temporary total disability benefits. A CT scan of the lumbar spine was taken on November 24, 1997. The impression was moderate disc bulge, L4-5 with narrowing of the AP diameter of the canal. Dr. W.T. Huskison stated that if the claimant’s symptoms persisted, either an MRI or post-myelographic CT study would be appropriate. Dr. Joseph Queeney, an osteopathic physician, examined the claimant on December 1, 1997, and his impression was lumbar strain, left lower extremity radiculitis. Dr. Queeney stated that it appeared the claimant had “diffuse disc bulging at L4-5.” [4] The claimant underwent a lumbar MRI on December 8, 1997, with the following impression:

1. There is suspicion for a left lateral/far lateral disc herniation at L5-S1 with disc material protruding into and lateral to the left neural foramen at this level. Mild facet degenerative changes also noted at this level.

2. At L4-5, there is moderate central disc bulging.

3. Mild disc bulging at L3-4.

After reviewing the MRI but seeing no indication for surgery, Dr. Queeney referred the claimant to Dr. Keith Holder. Dr. Holder, an occupational medicine/family practitioner, examined the claimant on December 15, 1997 and also gave the impression of lumbar strain. In addition to a treatment plan of EMG, nerve conduction studies, and daily physical therapy, Dr. Holder would consider lumbar epidural steroid injections if there was no improvement. The claimant was not returned to work at that time. A subsequent electromyogram report supported the diagnosis of a peroneal neuropathy, the exact location of which was not noted; the nerve conduction study would not support the diagnosis of a lumbar radiculopathy on the left. On December 29, 1997, however, Dr. Holder’s impression was “questionable herniated nucleus propulsid lateral L5-S1 on the left,” and his treatment plan was physical therapy three times weekly for one week, follow up after lumbar epidural steroid injection.

[5] On January 8, 1998, Dr. Holder wrote that a radiologist had reviewed the MRI, and that no definitive disc herniation was noted. Dr. Holder diagnosed lumbar strain and continued physical therapy, follow up next week for “interferential treatment.” Following a January 14, 1998 examination, Dr. Holder wrote:

The patient has requested to go back to work, his supervisor is willing to work with him on this. . . . Exam of the back, there is application of interferential vasopneumatic device and sciatic block carried out for inflammatory and myofascial pain. . . .

[6] DIAGNOSIS: Lumbar strain. . . . Patient is able to return to work tomorrow. Follow up daily. [7] PHYSICAL LIMITATIONS: No lifting over 25 pounds. No repetitive motions of the back. Alternate sitting/standing/walking as tolerated.

The respondents stopped paying temporary total disability benefits on January 15, 1998. The claimant went back to work but continued to receive treatment from Dr. Holder. The claimant’s low back remained symptomatic, however, and Dr. Holder diagnosed lumbar strain on January 19, 1998. On February 6, 1998, Dr. Holder noted that the claimant was improving and increased his lifting restriction to 35-40 pounds. Dr. Holder’s impression remained lumbar strain, and he wrote the following on March 2, 1998:
This is the final narrative summary of Mr. Garrett, employee of Wilson Heating Air, who returns for recheck of his back, which is doing much better. The patient is still taking Elavil and Lodine as needed and using Lightning Gel. He is basically doing regular duties at work without much problem.

[8] EXAMINATION: Exam of the back reveals good range of motion in all planes today. [9] DIAGNOSIS: Myofascial strain, lumbar. [10] TREATMENT PLAN: Continue medications as needed. Continue exercises. Return to work without restrictions using good judgment. [11] The patient has reached maximal improvement. Follow up as needed.

The claimant testified that his back still hurt and that his left leg was numb and painful, but that the carrier would not allow him to return to Dr. Holder. In June 1998, therefore, the claimant presented on his own to Dr. Robert Baker, an osteopathic physician. Dr. Baker arranged for another lumbar MRI, taken June 25, 1998. Dr. Trudy Moore’s opinion after reviewing the MRI was degenerative disease in the lower lumbar spine, minimal diffuse annular bulging of L4-5 and L5-S1, no focal HNP.

[12] While lifting and extending a ladder at work on July 6, 1998, claimant testified, “I just hurt my back real bad that day and I had to go to the emergency room again because I couldn’t sleep, no medicine.” A Disability Certificate signed by a Dr. Wilson on July 6, 1998 stated that the claimant could return to duty on July 9, with no heavy lifting over 20 pounds for one week. The next day, July 7, Dr. Wilson took the claimant off work an additional seven days, with no heavy lifting. Nevertheless, the respondents terminated the claimant’s employment on July 7, 1998. The company co-owner testified that the claimant was terminated for “abuse of the truck and phones, missing a lot of work.” The claimant testified, however, “I think they were just ready to get rid of me.” In any event, on July 7, 1998, Dr. Baker stated that the claimant could not return to work until seen by a neurosurgeon on July 22, 1998. [13] Dr. E. John Landherr, a neurosurgeon, examined the claimant on July 22, 1998:

The patient is a 37 year old male seen for evaluation of lower back pain, referred by Dr. Robert Baker, primarily with radiation

[14] specifically into the left lower extremity. These symptoms have been apparent since changing a refrigeration compressor at work on November 20, 1997. The patient is still having stabbing type sensations in the lower back region with numbness and tingling in the left thigh area posteriorly. Some numbness apparent in the left foot. . . . MRI scan of the lumbar spine shows suspicious disc herniation at L5-S1 with disc material protruding into neural foramina. [15] DIAGNOSIS: Question of a far lateral disc herniation at L5-S1.

Dr. Landherr thought that the claimant should undergo a lumbar myelogram with post-myelogram CT scan in order to assess if there was a relationship between the suspected herniated disc in relationship to the nerve root. The myelogram was not performed; rather, the carrier referred the claimant to Dr. J. Michael Standefer for a second opinion regarding the claimant’s low back pain. Dr. Standefer examined the claimant on August 24, 1998 and saw no “obvious” paraspinal muscle spasms, scoliosis or reversal of the normal lumbar lordosis. Dr. Standefer’s impression was chronic low back and associated left lower extremity pain which appeared to be musculoskeletal in origin, i.e., myofascial pain syndrome. Dr. Standefer noted that the claimant had diffuse multilevel degenerative changes in the disc with facet hypertrophy at multiple levels, and he suspected that this condition contributed to the claimant’s pain. Dr. Standefer advised the claimant that weight reduction played a major role in his treatment; otherwise, anti-inflammatory medication was the treatment choice.

[16] Dr. Standefer stated that the claimant may follow-up with Dr. Holder, and the claimant did so on September 4, 1998. Dr. Holder noted that the claimant had re-injured his back while carrying a ladder in July. Dr. Holder’s impression was myofascial strain, but he released the claimant to restricted work duty. The claimant’s condition had not improved by September 11, 1998, and Dr. Holder stated that the claimant was unable to return to work. Dr. Holder recommended the myelogram, as previously recommended by Dr. Landherr. Dr. Standefer subsequently indicated that he did not object to lumbar myelography on the claimant, and that Dr. Landherr could proceed with surgery if same was indicated. Dr. Holder concurred that a myelogram should be authorized in order to answer the question of whether the claimant’s injury was a myofascial strain or far lateral herniated disc. [17] The former employee filed a claim for additional benefits, contending that he worked until July 7, 1998, at which time he was taken off work as a result of his compensable injury. The claimant contended entitlement to temporary total disability benefits from July 7, 1998 until a date yet to be determined, and that he was entitled to medical expenses incurred for treatment by Dr. Landherr. Hearing was held November 2, 1998, at which time the claimant specifically requested to have the myelogram done. The administrative law judge found that the claimant has proven entitlement to additional temporary total disability benefits beginning July 7, 1998 and continuing through a date yet to be determined. The administrative law judge also found that the claimant was entitled to treatment from Dr. Landherr, a finding not appealed by the respondents. The administrative law judge stated that when the claimant’s most recent back problems began, he sought medical treatment from Dr. Wilson on July 6, 1998. Dr. Wilson took the claimant off work until July 9, 1998; however, Dr. Baker took the claimant off work on July 7, 1998 until the claimant could be seen by Dr. Landherr on July 22, 1998. Since that time, the claimant has been taken off work by Dr. Holder. The respondents appeal, contending that there is no substantial evidence to support the award of additional temporary total disability benefits. We affirm the administrative law judge’s finding. [18] 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.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (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 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. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. Persistent pain, in itself, does not suffice 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). [19] In the present matter, the claimant sustained a work-related low back injury on November 18, 1997, which the respondents accepted as compensable and paid temporary total disability. Dr. Queeney diagnosed lumbar strain after this injury and referred the claimant to Dr. Keith Holder, who also diagnosed lumbar strain and suspected that the claimant had an HNP at L5-S1. On January 14, 1998, Dr. Holder released the claimant to restricted work duty. The record indicates that the claimant was able to return to work, albeit with continued symptoms, and the respondents stopped paying temporary disability on January 15, 1998. The claimant performed well enough at work so that Dr. Holder increased his lifting restriction in February, 1998. Dr. Holder released the claimant on March 2, 1998, but his diagnosis remained lumbar myofascial strain. [20] The claimant’s testimony indicates that he exacerbated his back injury on July 6, 1998. Although the dissent seems to suggest that the claimant feigned back problems in response to his termination by the respondent on July 7, 1998, we point out that the medical record corroborates the claimant’s testimony that he sought medical treatment on July 6, 1998, the day before he was notified of his termination for misconduct. To the extent that the dissent asserts that the only evidence to support an award of additional temporary total disability after July 7, 1998, is the claimant’s testimony and Dr. Holder’s September records, we respectfully point out that, on July 7, 1998, Dr. Wilson took the claimant off work for seven days. Dr. Baker, a treating physician, also opined on July 7, 1998 that the claimant could not return to work until a neurosurgical evaluation on July 22, 1998. The dissent also appears to find significant that the claimant never told Mr. Wilson, the company co-owner, that he had exacerbated his back or advised Mr. Wilson that he was off work under doctor’s orders after July 7, 1998. However, we fail to see any significance in this fact since the respondent terminated the claimant on July 7, 1998, and the claimant was therefore no longeremployed by the respondent after July 7, 1998. [21] In any event, Dr. Landherr examined the claimant on July 22, 1998 and noted that the claimant’s symptoms had been apparent since the November, 1997 compensable injury. This finding in substance mirrors the findings of Dr. Holder. Dr. Standefer performed an additional neurosurgical evaluation of the claimant and referred the claimant back to Dr. Holder. On September 4, 1998, Dr. Holder noted that the claimant had re-injured his back in July, and Dr. Holder attempted to return the claimant to restricted work. However, after the claimant’s condition did not improve by September 11, 1998, Dr. Holder again stated that the claimant was unable to return to work. Under the circumstances of this case, we place significant weight on the findings of Dr. Holder, claimant’s primary treating physician, who also expressly opined that the claimant was unable to return to work in September. For the reasons discussed herein, we find that the claimant proved by a preponderance of the credible evidence that he experienced a recurrence of his compensable back injury at work on July 6, 1998, and that he remained within the healing period from his compensable injury and totally incapacitated from earning wages from July 7, 1998 until a date yet to be determined. [22] Accordingly, based on our de novo review of the entire record, we affirm the opinion of the administrative law judge. [23] 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 administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [24] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. §11-9-715(b) (Repl. 1996). [25] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[26] Commissioner Wilson dissents. [27] DISSENTING OPINION
[28] I respectfully dissent from the majority’s opinion finding that the claimant is entitled to temporary total disability benefits from July 7, 1998, to a date yet to be determined. Based upon my de novo review of the record, the claimant has failed to meet his burden of proof. [29] 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.Arkansas State Highway Transportation Dept. 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 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 his 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). [30] The record indicates that the claimant returned to work modified duty on January 15, 1998. On February 27, 1998, Dr. Holder released the claimant to full duty work without restrictions. The claimant was able to perform all of his regular job duties until he was terminated on July 7, 1998, for abusing the phone privileges in his company truck. Mr. Bill Wilson, the company’s owner, testified that the claimant had been warned about his over use of the truck cell phone and about allowing family members to ride with him in the truck, which were violations of company policy. The company secretary informed the claimant on July 7th about the excessive charges shown on his latest phone bill. Henceforth, the claimant was terminated by Mr. Wilson. [31] Mr. Wilson also testified that after the time the claimant was released by his doctor in February, the claimant never asked to return to see Dr. Holder or any other doctor. The claimant did not complain about his back bothering him any more than any of the other employees complained. The claimant was able to work 12 to 14 hours a day making service calls and never indicated that he was unable to work these kinds of hours or perform any aspect of the job. Mr. Wilson testified that the claimant was able to do everything asked of him and he would still be employed there today if he had not violated company policies. [32] The claimant testified that he aggravated his low back problem on July 6, 1998, the day before he was terminated. The claimant stated that he was carrying a long extension ladder when he hurt his back. The claimant sought treatment at the emergency room at St. Edward’s Hospital and was off work on July 7th when he received a call from Mr. Wilson notifying him of his termination. The claimant never told Mr. Wilson that he had re-injured his back or advised him he was off work under a doctor’s orders. Further, the claimant never brought Mr. Wilson an off-work slip. [33] Significantly there are no medical records in evidence from St. Edward’s Hospital which described the nature of the problem that caused the claimant to seek treatment there on July 6th. The claimant testified that he saw his family physician, Dr. Baker, the next day. However, there are no medical records in evidence that explain why the claimant sought treatment from Dr. Baker. It is of further note that Dr. Landherr, who examined the claimant on July 22, 1998, failed to mention an incident with a ladder on July 6, 1998. Again on August 24, 1998, the claimant sought treatment from Dr. Standefer and there was no history of any sort of aggravation of his back difficulties in July or any other time. Significantly, when Dr. Landherr saw the claimant on July 22, 1998, he said nothing about the claimant needing to be off work. Likewise, Dr. Standefer who examined the claimant on August 24, 1998, did not say anything about the claimant not being able to work. The only evidence that we have to support an award of TTD benefits are the September 4, 1998 and September 11, 1998 reports of Dr. Holder. In my opinion, these records are entitled to little or no weight. First of all, Dr. Holder makes no findings or diagnosis that is different from those diagnoses made by Dr. Landherr or Dr. Standefer, neither of whom stated that the claimant was disabled from working. Secondly, given the fact that the claimant had been working full duty since the previous February and would still be working there had he not been terminated for violating company policy, there is no basis for Dr. Holder’s sudden conclusion that the claimant is physically unable to work. [34] The temporal relationship between the claimant’s sudden “aggravation” of his lumbar injury the day before he is terminated from the respondent employer for cause is certainly unsettling. The medical records do not indicate that the claimant had sustained any injury or aggravation of his compensable injury. The only evidence we have to support a finding that the claimant’s entitled to any TTD after July 7, 1998, is the claimant’s testimony. His testimony is certainly suspect because there is a lack of medical evidence to support his story. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626
(1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). [35] Accordingly, for the reasons stated herein, I find that the claimant has failed to meet his burden of proof and is not entitled to any additional temporary total disability benefits. Therefore, I must respectfully dissent from the majority’s opinion. [36] ______________________________ MIKE WILSON, Commissioner