GRAHAM v. ARKANSAS TRUCKING SERVICES, 1995 AWCC 30

CLAIM NO. E202399

CLIFFORD GRAHAM, EMPLOYEE, CLAIMANT v. ARKANSAS TRUCKING SERVICES, EMPLOYER, RESPONDENT, and GUARDIAN NATIONAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 1, 1995

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

Claimant represented RONALD MARK CHAUFTY, Attorney at Law, Texarkana, Arkansas.

Respondents represented by MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Respondents appeal a March 15, 1994 opinion of an Administrative Law Judge finding that a December 1992 incident was not an independent intervening cause of claimant’s disability and that claimant is entitled to additional benefits for temporary total disability from January 31, 1993 to an uncertain future date.

[3] Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark. Code Ann. § 11-9-705 (a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Central Maloney, Inc. v.York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). After our denovo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge. [4] On January 31, 1992, claimant sustained an admittedly compensable injury to his neck and lower back when he fell from a truck. Temporary total disability benefits were apparently paid through January 30, 1993. [5] On December 4, 1992, claimant was carrying a stick of firewood at home and felt a pop in the middle of his back. Dr. Fletcher, claimant’s treating physician for the compensable injury, diagnosed a compression fracture at T12-L1 as a result of this incident. Dr. Fletcher has repeatedly opined that the compression fracture is not work-related. [6] In presenting its argument that the December 1992 incident constitutes an independent intervening cause, respondent contends that Act 796 of 1993 should apply to this case. However, the Act does not apply to claimant’s injury because it occurred prior to the effective date of the Act. More importantly, the law concerning independent intervening causes states that the subsequent disability must be triggered by activity on the part of the claimant which is unreasonable under the circumstances. This was the standard to be applied even before Act 796 of 1993. Guidryv. J R Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). [7] Moreover, we find that the act of carrying one stick of firewood was not unreasonable under the circumstances after considering claimant’s knowledge of his condition. Lunsford v. Rich Mountain Electric Coop, 33 Ark. App. 66, 800 S.W.2d 732 (1990). Although Dr. Fletcher may have cautioned claimant as to his level of activity, he had also instructed claimant to begin to resume normal activities and carrying a piece of firewood would certainly be considered a normal activity. [8] Much more important, however, is the very strong evidence that the December 1992 injury was a separate and distinct injury, which had no affect on the condition caused by the January 1992 compensable injury. Respondent argues that the December 1992 incident was an independent intervening cause or at least, an aggravation of the 1992 compensable injury. However, if the December 1992 incident was to a separate part of the body and did not affect the condition caused by the compensable injury, we fail to see how respondent’s argument has any merit. [9] Dr. Fletcher compared the results of CT scans performed before and after the December 1992 incident. Dr. Fletcher reported that claimant “was subsequently tested and found to have a compression fracture of L1 and his old disc problems appear to be relatively stable.” Dr. Robert Gordon, the radiologist who interpreted both CT scans, concluded that there was a compression fracture of the L1 vertebral body which was new; that the herniated disc at L5-S1 and the disc problems at L4-5 had remained stable when compared to the diagnostic study done in August 1992. [10] On February 23, 1993, Dr. Fletcher reported the following:

CLIFFORD C. GRAHAM WAS IN TODAY FOR FOLLOW UP. HIS COMPRESSION FRACTURE IS ABOUT HEALED BY NOW. HE IS BACK ABOUT TO THE POINT HE WAS BEFORE HE ACTUALLY SUSTAINED THAT. . . .
I DON’T THINK HIS INSURANCE COMPANY SHOULD PAY FOR THE TREATMENT OF HIS COMPRESSION FRACTURE BECAUSE I DON’T THINK THAT WAS WORK RELATED, BUT HIS OTHER PROBLEMS CERTAINLY WERE WORK RELATED, AND WE WERE IN THE PROCESS OF TRYING TO FIGURE ALL THOSE OUT, SO I THINK THAT NEEDS TO BE RE-ARRANGED SO THAT HE CAN FINISH UP HIS WORKUP AND TREATMENT, AND HOPEFULLY, HE CAN GET BACK TO WORK. . . .

[11] Based on the above evidence, we find that the December 1992 incident was not an independent intervening cause of claimant’s disability or an aggravation of the compensable injury but instead was a separate and distinct injury, which had no affect on the condition caused by the compensable injury. [12] Temporary total disability is that period within the healing period in which claimant suffers a total incapacity to earn wages. Arkansas State HighwayTransportation Dept. v. Breshers, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [13] In a report dated June 15, 1993, Dr. Fletcher stated that as of December 4, 1992, claimant had not been released to return to work and was totally disabled as a result of the compensable injury. In the February 23, 1993 report quoted above, Dr. Fletcher indicates that additional diagnostic studies and treatment are needed for the compensable injury before claimant can get back to work. Claimant has been unable to receive any treatment for the compensable injury since respondents suspended the payment of benefits in February 1993. However, he is still in need of medical treatment and there is no evidence whatsoever that he has been released to return to work. Although Dr. Fletcher reported on July 2, 1993 that if claimant did not desire surgery his healing period for the low back injury may have ended, claimant has not received the diagnostic studies or treatment recommended by Dr. Fletcher in February 1993 and there is no indication that claimant’s healing period for the cervical condition has ended. [14] Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to additional benefits for temporary total disability from January 31, 1993 to an uncertain future date. [15] Finally, we do not understand respondent’s concern with reference to medical expenses. Respondent contended at the hearing that it was not controverting any medical treatment provided to claimant. In our opinion, the Administrative Law Judge’s boilerplate comment that respondent should pay all reasonable and necessary medical expenses as a result of the compensable injury does not award any specific medical treatment and would not preclude respondent from challenging treatment as being unreasonable and unnecessary. [16] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that the December 1992 incident was not an independent intervening cause of claimant’s disability and that claimant is entitled to benefits for temporary total disability from January 31, 1993 to an uncertain future date. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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. [17] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[18] Commissioner Tatum dissents.

[19] DISSENTING OPINION
[20] I respectfully dissent from the majority’s opinion finding that claimant is entitled to temporary total disability benefits subsequent to January 31, 1993 to a date yet to be determined.

[21] In my opinion, a preponderance of the credible evidence does not indicate that claimant is entitled to temporary total disability benefits beyond January 31, 1993. [22] It is undisputed that claimant sustained a compensable injury. Claimant slipped and fell from the cab of a tractor-trailer rig landing on his buttocks. Claimant was originally seen by Dr. Davis K. Fisher in Tyler, Texas, and diagnosed with a back strain/sprain. As a result of this work-related incident, claimant has received temporary total disability benefits through January 31, 1993. Claimant presently contends that he is entitled to additional temporary total disability benefits and medical benefits subsequent to January 31, 1993. He, apparently, is alleging that the work injury has rendered him temporarily and totally disabled. A preponderance of the credible evidence does not support his contention. [23] In my opinion, claimant is not entitled to additional temporary total disability benefits related to the January 31, 1993 injury because he has artificially prolonged his healing period. There is conflicting testimony. Claimant testified that he wants to have surgery but no surgery has been recommended. However, the medical records seem to reflect that claimant has refused to undergo surgery. In my opinion, this is significant. [24] As stated, claimant’s work injury was diagnosed as a sprain/strain type injury. Claimant has received benefits for approximately one year related to a sprain/strain. Several CT scans were conducted and the majority of them did not reveal anything significant. Although claimant does have a congenitally small lumbar canal, there was nothing significant found. In my opinion, it is clear that claimant has failed to prove by a preponderance of the credible evidence that he has continued in his healing period related to the compensable injury of January of 1992. Therefore, I dissent from the majority opinion. [25] ALLYN C. TATUM, Commissioner