CLAIM NO. E119740
ROGER HORTON, EMPLOYEE, CLAIMANT v. HORNBECK SEED COMPANY, EMPLOYER, RESPONDENT, and AETNA INSURANCE CO., CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 14, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by CLAUDE W. JENKINS, Attorney at Law, DeWitt, Arkansas.
Respondent represented by JOSEPH E. KILPATRICK, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on April 25, 1994 finding that claimant has failed to prove by a preponderance of the credible evidence that he is entitled to temporary total disability benefits while he was in prison. We affirm this portion of the Administrative Law Judge’s opinion. However, we reverse the decision of the Administrative Law Judge finding that claimant is entitled to temporary total disability benefits from the time he was released from prison until a date yet to be determined or that he is entitled to continuing psychotherapy.
[3] Claimant sustained an admittedly compensable work-related injury on November 16, 1991. Respondent accepted the claim as compensable and has been paying medical benefits and temporary total disability benefits accordingly. Respondent paid temporary total disability benefits from October 14, 1992 and from September 29, 1993 through February 7, 1994. Respondent suspended payment of temporary total disability benefits while claimant was incarcerated at the Arkansas Department of Corrections. Presently, claimant contends that he is still within his healing period; that he is entitled to temporary total disability benefits until a date yet to be determined; and, that he is entitled to payment of temporary total disability benefits for the time he was in the Arkansas Department of Corrections. Claimant further contends that he is entitled to additional psychological treatment. Respondent claims that claimant is not entitled to temporary total disability benefits during the time he was incarcerated in the Arkansas Department of Corrections or during the time period he was being treated by a dentist. Respondent also controverts claimant’s entitlement to any additional psychological treatment maintaining it is not causally related to claimant’s work-related injury. A hearing was held and an Administrative Law Judge found that claimant is not entitled to temporary total disability benefits while he is in prison. However, the Administrative Law Judge found that claimant is entitled to temporary total disability benefits from the date he was released from prison through a date yet to be determined and that he is entitled to additional psychological treatment.
[4] Claimant has the burden of proving an entitlement to temporary total disability benefits. Marr v. MulberryLumber Co.,
5 Ark. App. 260,
635 S.W.2d 283 (1982). The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. Faulkner Radio Service,
220 Ark. 368,
247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H. Knight Co.,
220 Ark. 333,
248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. §
11-9-704(c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. §
11-9-704; Wade v. Mr. CCavenaugh’s,
298 Ark. 363,
768 S.W.2d 521 (1989); and Fowlerv. McHenry,
22 Ark. App. 196,
737 S.W.2d 663 (1987).
[5] Claimant failed to prove by a preponderance of the credible evidence that he was totally unable to earn wages while he in prison. A review of the evidence indicates that claimant underwent lip surgery on July 13, 1992. Claimant’s lip healed faster than normal and his plastic surgeon, Dr. Wende, was ready to perform he final stage of reconstructive surgery and repair claimant’s nose. Claimant was then imprisoned and the procedure was postponed. Dr. Wende was of the opinion that claimant could work while in prison as long as he didn’t work anywhere too cold. Claimant, while in prison, worked in the prison laundry. He also performed field utility work. The aforementioned shows that claimant was capable of earning wages while incarcerated and was not temporarily totally disabled. Therefore, we affirm this portion of the Administrative Law Judge’s decision.
[6] Claimant has failed to prove by a preponderance of the credible evidence that he was temporarily totally disabled from the date released from prison to a date yet to be determined. There is insufficient evidence that claimant had a change of physical condition upon his release from prison. Claimant was able to become gainfully employed and had, in fact, participated in gainful employment while in the prison. Claimant’s only work restriction was not to work at temperatures below 50 degrees. Although claimant complains that his nose is overly sensitive and causes him difficulties, he continues to smoke a pack and a half of cigarettes a day. Therefore, claimant was capable of gainful employment after being released from prison and is not entitled to any additional temporary total disability benefits.
[7] Additionally, Dr. Wende has been was ready to schedule claimant’s nasal reconstruction surgery since claimant’s release. Respondent agrees and the evidence indicates that claimant would be temporarily and totally disabled during the nasal reconstruction surgeries. The healing process from the surgeries would last approximately four to five months. However, claimant has not undergone the nasal surgeries. He chose to undergo two root canals by Dr. Hestir. The evidence does not indicate that claimant was temporarily and totally disabled during the root canal process. These were performed from October 19, 1993 through March 23, 1993. Dr. Hestir was of the opinion that these root canals would not render claimant temporarily and totally disabled. Therefore, we reverse the portion of the Administrative Law Judge’s decision.
[8] Lastly, we reverse the decision of the Administrative Law Judge finding that claimant has proven by a preponderance of the credible evidence that he is entitled to continuing psychological treatment. A review of the evidence indicates that claimant is being seen by Dr. Granger. Although Dr. Granger indicates that claimant is in need of psychiatric treatment, there is insufficient evidence offered that claimant’s psychological problems are the result of his compensable injury. A preponderance of the credible evidence indicates that claimant is having many personal problems with his family and has started drinking while taking his medication. Claimant and his wife, who knew each other only two months prior to being married, had a physically and abusive relationship. Claimant, who presently lives with his girlfriend, is separated from his wife. Claimant has also been on probation for writing bad checks and ultimately returned to prison. A preponderance of the credible evidence does not indicate that claimant’s psychological problems were caused by his compensable injury. The psychological therapy performed by Dr. Granger focuses primarily upon claimant’s personal problems and not his compensable injury. Therefore, we reverse this portion of the Administrative Law Judge’s decision.
[9] As stated, we affirm in part and reverse in part the decision of the Administrative Law Judge.
[10] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[11] Commissioner Humphrey dissents.
