CLAIM NO. D610329 E411530
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 22, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLES ROBERT B. BUCKALEW and WILLIAM C. FRYE, Attorneys at Law, Little Rock, Arkansas.
Respondent No. 1 represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE CHESTER C. LOWE, Attorney at Law, Little Rock, Arkansas.
Respondent No. 3 represented by the HONORABLE MARK McCARTY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed and adopted in part; Reversed in part.
[1] OPINION AND ORDER[2] Respondents appeal an opinion and order of the Administrative Law Judge filed December 2, 1997. In said order, the Administrative Law Judge made the following findings of fact and conclusions of law:
1. The stipulations agreed to by the parties are hereby accepted as fact.
2. There are three compensable injuries in question. One is a June 10, 1981 neck injury where Respondent No. 1 was on the risk. There are two other compensable injuries, July 5, 1986 and July 11, 1994, where Respondent No. 2 was on the risk.
3. The maximum compensation rate will be applicable at all relevant times.
4. Respondent No. 1 has accepted and paid a 15% body as a whole rating to the cervical spine.
5. Respondent No. 1 and Respondent No. 3 are dismissed from the claim.
6. The claimant has proven by a preponderance of the evidence that she remained in her healing period based on her cervical and lumbar problems from April 6, 1995 to September 23, 1996, and was unable to earn wages.
7. The claimant has proven by a preponderance of the evidence that she is entitled to an additional 10% permanent impairment for her cervical area, a 25% permanent impairment to her lumbar area, and a 5% permanent impairment to her lower extremity.
8. The claimant has proven by a preponderance of the evidence that she is entitled to 35% wage loss benefits in addition to her permanent impairment ratings.
9. Respondent No. 2 is solely responsible for this award.
[3] With regard to the administrative law judge’s Finding No. 6, we find that the claimant failed to establish by a preponderance of the evidence that she remained within her healing period for cervical and lumbar problems from April 6, 1995, to September 23, 1996. Instead, on this record, we find that the greater weight of the evidence establishes that the claimant’s healing period for her cervical and lumbar problems following the July 11, 1994, incident ended prior to April 6, 1995. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [4] In this regard, 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 and TransportationDepartment v. Breshears, 272 Ark. 244, 613 S.W.2d 392We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge’s Findings No. 1-5 and 7-9 are supported by a preponderance of the credible evidence, correctly apply the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that these findings of fact made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission.
(1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she 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) (Repl. 1996). 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 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.Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [5] In the present case, we note that the administrative law judge relied on the deposition testimony of Dr. Moore, the claimant’s treating physician, for her finding that the claimant’s healing period for her neck and low back continued until September 23, 1996. However, in assessing Dr. Moore’s conclusion that the claimant experienced a healing period of over two years for her neck and low back following the 1994 incident, we note that Dr. Moore also ultimately concluded in this case that the claimant experienced no additional anatomical impairment to her neck and low back following the 1994 incident, and Dr. Moore has acknowledged that determining when the claimant reached maximum medical improvement in this case is difficult. In assessing Dr. Moore’s date of September 23, 1996, we note with interest that Dr. Moore’s prior June 20, 1996 office note recommended nothing other than “a continued follow-up”, and the medical record indicates that Dr. Moore’s course of medical treatment for the claimant’s neck and low back since at least April of 1995, has been continuing conservative treatment (epidural steroid injections, physical therapy, and medication) with no lasting benefit. On this record, we find that the condition of the claimant’s neck and low back following the 1994 incident were as far restored as the permanent nature of her injuries would permit at least by April 5, 1995, when she also reached maximum medical improvement for her 1994 knee injury. Consequently, Respondent No. 2 is entitled to a credit against liability for overpayment of temporary disability compensation paid during the period from April 16, 1995 to February 27, 1996. [6] To the extent that the claimant asserts in her brief on appeal that Respondent No. 1 and Respondent No. 3 have preserved the issue of their involvement in this case by filing briefs in this appeal, we note that neither the claimant or Respondent No. 3 placed in their notice of appeal any appeal of the administrative law judge’s dismissal of Respondent No. 1 and Respondent No. 3 as parties to this claim. In addition, the claimant has not cited any legal authority for her proposition that, by filing briefs in this appeal, Respondent No. 1 and Respondent No. 3 have preserved the issue of their involvement in this case. Since neither the claimant or Respondent No. 2 filed any appeal to the administrative law judge’s dismissal of Respondent No. 1 and Respondent No. 3 as parties to this claim, we find that this issue was not properly preserved by the claimant for review in this appeal. [7] Respondent No. 2 has raised on appeal the exact nature of the award of wage loss compensation in this case where (1) the claimant sustained her first low back and neck injury in 1986 with a total assigned anatomical impairment rating for that injury of 35% rated to the whole body, (2) the claimant was able to return to work for approximately 8 years despite her impairment until the most recent injury in 1994, (3) the claimant’s absence from work then started at the time of the 1994 event, and (4) the claimant was not assigned any additional anatomical impairment for her neck or low back as a result of the 1994 incident. Respondent No. 2 asserts that the Arkansas Workers’ Compensation Law does not provide for an award of wage loss compensation under these circumstances. [8] We point out for the benefit of the parties that the Court of Appeals has addressed this type of situation recently inInskeep v. Emerson Electric Company, 64 Ark. App. ___, ___ S.W.2d ___ (Nov. 11, 1998). In Inskeep, the claimant suffered a compensable spinal injury in 1977 which ultimately resulted in a 35% impairment rating to the body as a whole. However, the claimant was able to return to work from 1986 until he sustained an additional work-related spinal injury, while employed by the same employer in 1996. As occurred in the present case, the claimant’s most recent (1996) spinal injury inInskeep did not cause any additional anatomical impairment. As a result of a hearing following the 1996 injury, the Commission awarded the claimant an additional 35% disability for wage loss, and found that the claimant’s compensation rate for the 35% wage loss should be based on the claimant’s average weekly wage at the time of the 1977 injury, rather than on the claimant’s average weekly wage at the time of the 1996 injury (which caused no additional impairment). However, the Court of Appeals reversed the Commission in this regard and found that, where the claimant was able to return to work from 1986 until 1996, and it was only after his 1996 work-related accidents that the claimant suffered his loss of earnings, his compensable wage-loss disability resulted from the 1996 incidents. Under these circumstances, the Court found that the claimant’s compensation rate for wage loss disability should be based on his average weekly wage at the time of the 1996 injury, and not based on his 1977 average weekly wage. Id. Applying the Court’s rationale in Inskeep to the essentially identical circumstances presented in the present case, we note for the benefit of the parties that the claimant’s compensation rate for her 35% wage loss in the present case must be based on her average weekly wage at the time of her 1994 injury, and not her average weekly wage at the time of her 1986 injury. [9] Therefore, for the reasons discussed herein, we affirm and adopt Findings No. 1-4 and 7-9 of the December 2, 1997 decision of the Administrative Law Judge, including all findings and conclusions therein, as the decision of the Full Commission on appeal. We reverse Finding No. 6, and we find that Respondent No. 2 is entitled to a credit against liability for overpayment of temporary disability compensation paid for the period from April 6, 1995 to February 27, 1996. [10] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[11] Commissioner Humphrey concurs in part and dissents in part. CONCURRING AND DISSENTING OPINION
[12] I concur with the principal opinion’s affirmance of the Administrative Law Judge’s findings no. 1-5 and 7-9. However, I must respectfully dissent from the finding that claimant is not entitled to benefits for temporary total disability beyond April 5, 1995.
CONCURRING AND DISSENTING OPINION
[16] I concur with the principal opinion’s finding that claimant failed to establish by a preponderance of the evidence that she remained within her healing period for cervical and lumbar problems from April 6, 1995 through September 23, 1996. However, I must respectfully dissent from the finding that claimant has proven entitlement to an additional 10% impairment for her cervical area, a 25% impairment for her lumbar area, and a 5% impairment to her lower extremity, in addition to a 35% decrease in her wage earning capacity.