IMLER v. ARKANSAS FORESTRY COMMISSION, 1999 AWCC 291

CLAIM NO. E709727

JOHN IMLER, EMPLOYEE, CLAIMANT v. ARKANSAS FORESTRY COMMISSION, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 20, 1999

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

Claimant represented by the HONORABLE KENNETH E. BUCKNER, Attorney at Law, Pine Bluff, Arkansas.

Respondents represented by the HONORABLE RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.

Decision of administrative law judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed April 12, 1999. The administrative law judge found that the claimant has not yet achieved maximum medical improvement as the result of his compensable injury, but that the claimant has failed to prove entitlement to additional temporary total disability benefits. The administrative law judge found that the respondents remain responsible for continued reasonably necessary medical treatment, including, but not limited to, treatment/referrals by Dr. Wandal Money. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge. [3] The claimant sustained a compensable injury on February 11, 1996. The claimant testified that he was operating a bulldozer while fighting a forest fire on that date:

I was cutting the fire off from some houses, and it was a pretty intense situation, had the dozer in high gear, or third gear, high range, run into some problems with smoke, couldn’t see, couldn’t breathe, put the bulldozer in reverse and was trying to come back out my own trail. Due to the fact that I couldn’t see, I hit a large oak tree and it bent me backwards over the seat with such force that it — my seat belt slipped down to my knees it pulled me backwards so hard.

[4] The claimant testified that the collision affected the middle of his back. The claimant’s emergency room history indicated that he had been in a bulldozer accident but did not immediately hurt afterward. The claimant later began feeling significant pain in his neck and back. X-rays taken on the date of injury gave the impression of normal cervical and lumbar spine. A physician diagnosed cervical and low back strain and returned the claimant to work on February 13, 1996. Six months later, in August, 1996, the claimant presented to Arkansas Headache Clinic, stating that he had been injured on the job “about four months ago.” The claimant attributed severe headaches he was having to this injury. An MR of the brain with gadolinium taken in August, 1996 was negative, as was an MR of the cervical spine. The claimant came under the treatment of Dr. Wandal Money in September, 1996, who prescribed medication and arranged for physical therapy. In October, 1996, Dr. Money gave the impression of “post-traumatic headaches.” In December, 1996 and January, 1997, Dr. Money diagnosed “neck and bilateral shoulder sprain.” In February, 1997, Dr. Money placed the claimant on Prozac “to attempt to control his chronic pain.” Dr. Money corresponded with the claimant in March, 1997, stating, “you continue to be under my care for what are called post-traumatic headaches.” [5] The claimant’s physical therapist wrote on May 9, 1997, “Unfortunately, it appears that John has reached maximum medical improvement as far as physical therapy is concerned.” The claimant continued working until about May 14, 1997, at which time Dr. Money took the claimant off work “for two weeks and see if his headaches improve. If they do, that is a good indication that stress is a significant factor aggravating his headaches.” The claimant has not returned to work since that time. An Assistant Claims Manager notified the claimant on May 15, 1997 that Public Employee Claims Division would not cover continued medical treatment for the compensable injury, but the respondents did reinstate temporary total disability compensation on that date. After the May 28, 1997 follow-up appointment, Dr. Money wrote that the claimant “really has not been able to be off and away from work in a relaxed fashion for the last two weeks because he has been interacting with workman’s compensation individuals and with his friends at work, which has been very stressful for him . . . I would like him to remain off work for the next two weeks so that he can relax and see what effect this has on his headaches and then I will see him for follow up.” [6] Dr. Money prescribed a TENS unit on June 16, 1997 and allowed the claimant “to return to work next Monday if he feels up to it.” On June 25, 1997, the Claims Manager denied a request for additional benefits and medical treatment, and the respondents ceased paying additional temporary disability compensation on July 3, 1997. Dr. Money referred the claimant to a pain management specialist, Dr. Annette Meador. On July 29, 1997, Dr. Meador’s impression was mixed headaches, myofascial pain, occipital neuralgia, suspect depression. Dr. Meador recommended two-three sessions of trigger point injections and additional physical therapy. [7] The claimant was referred to a neurosurgeon, Dr. Scott Schlesinger, who opined on December 1, 1997:

He has an MRI scan revealing bulging discs at the T5-6 and T6-7 level, but no evidence of significant disc herniation or nerve root compression. His lumbar and cervical MRI, as well as cranial MRI are all negative. I do not see anything that is amenable to surgical correction. I think his problems are musculoskeletal in nature. His headaches are perhaps tension headaches. I really do not have anything that I can offer him neurosurgically and release him from further care.

[8] The claimant testified that he has since attempted to return to work for the respondents, but that “light duty” with the Forestry Commission was not available. The claimant has not attempted to return to work for any other employer. [9] The administrative law judge previously filed an opinion on March 10, 1998, finding that the respondents remain responsible for continued reasonably necessary medical treatment, and that the claimant’s continuing complaints are directly and causally related to the compensable injury. The nature and extent of the claimant’s disability was specifically reserved, pending further development of the medical evidence. The Full Commission affirmed and adopted the opinion of the administrative law judge in an opinion filed August 24, 1998. [10] The absent employee filed another claim for additional temporary total disability compensation. The claimant contended that he had been temporarily and totally disabled since July 3, 1997 and continuing through an undetermined date. The respondents contended that the claimant’s healing period ended on or before June 30, 1997, the date they terminated benefits based upon surveillance of the claimant’s activities. Another hearing before the Commission was held March 1, 1999. The administrative law judge found that the claimant’s statements concerning his inability to work are conclusory and not supported by the record. In denying the claim, the administrative law judge noted that the claimant worked for over one year post-injury, but is now not motivated to return to work. Claimant appeals to the Full Commission. [11] 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 persistence of pain does not suffice, it 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). [12] In the instant matter, the claimant contends that the administrative law judge erred in denying additional temporary disability benefits. The claimant submits that he is entitled to temporary total disability compensation from on or about July 10, 1997 through December 12, 1998 “and indeed is entitled to temporary total disability benefits beyond that time since he was released to light duty and no light duty has been made available for him by his employer.” The respondents do not appeal the administrative law judge’s finding that they remain responsible for continued reasonably necessary medical treatment, and indeed submit that the Full Commission should affirm the administrative law judge’s opinion. [13] In conducting our de novo review of the entire record, we note that the claimant sustained an admittedly-compensable injury while operating a bulldozer in February, 1996. The claimant testified that he couldn’t see because of the billowing smoke in the suburban forest fire, yet knew that he had struck an oak tree in such a manner that he was “pulled backwards . . . with such force that . . . my seat belt slipped to my knees.” The claimant testified that his middle back was hurt in this incident, but the initial ER history reported no complaints of pain. X-ray showed a normal cervical and lumbar spine, and the claimant returned to work from February 13, 1996 through about May 28, 1997. [14] In the meantime, in August, 1996, the claimant began reporting severe headaches, of questionable causal connection to the bulldozer incident six months earlier. MRI’s of the brain and cervical spine were negative. Dr. Money diagnosed neck and bilateral shoulder sprain beginning in December, 1996, and prescribed Prozac for the claimant in February, 1997, in order to control “chronic pain.” The claimant’s physical therapist pronounced maximum medical improvement in May, 1997, now 15 months post-injury. Dr. Money took the claimant off work for two weeks on May 14, 1997, while the claimant continued receiving temporary total disability compensation. On May 28, 1997, Dr. Money reported that the claimant had been unable to relax due to the stress of “interacting with workman’s compensation individuals.” On June 16, 1997, Dr. Money opined that the claimant could return to work the following Monday “if he feels up to it.” The respondents paid temporary total disability benefits through July 3, 1997. On December 1, 1997, Dr. Scott Schlesinger released the claimant from further care with norestrictions. We find that this evidence negates the claimant’s argument that the respondent-employer refused to return the claimant to work “within his restrictions.” Rather, the record shows that the claimant has not attempted to return to work for the respondents, nor has he sought work anywhere else. [15] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has not shown that he is totally incapacitated from earning wages, and that the claimant has thus failed to prove entitlement to additional temporary total disability benefits. The Full Commission affirms in its entirety the opinion of the administrative law judge, and we hereby dismiss this claim. [16] IT IS SO ORDERED. [17] ________________________________
ELDON F. COFFMAN, Chairman ________________________________ MIKE WILSON, Commissioner [18] Commissioner Humphrey dissents.