CLAIM NO. E418231
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 12, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on February 6, 1998. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that he is entitled to additional temporary total disability benefits continuing to a date yet to be determined. In addition, the administrative law judge failed to address the respondents’ contention that the respondents are entitled to a credit against future benefits for an alleged over-payment of temporary total disability benefits for a period in 1996 during which the claimant had returned to work. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any additional temporary disability compensation for any period after the respondents terminated the claimant’s temporary disability benefits on July 7, 1997. In addition, we find that the respondents are entitled to a credit against future liability for temporary disability payments made to the claimant in 1996, during periods that the claimant worked for other employers. Therefore, we find that the decision of the administrative law judge must be reversed. [3] The claimant sustained a compensable injury on August 10, 1994. As a result of that injury, the respondents initiated benefit payments and paid for a substantial amount of medical treatment that the claimant has, and is, receiving. The claimant underwent a right-side decompressive laminotomy with nerve root decompression at the L4-5 level of the spine on April 1, 1997. Thereafter, the respondents terminated the claimant’s temporary disability compensation on July 7, 1997. [4] Since the claimant’s injury occurred after July 1, 1993, the provisions of Act 796 of 1993 are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. 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. ArkansasState Highway and Transportation Department 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 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 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, 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 find that the claimant failed to prove that he remained within his post-surgical healing period beyond July 7, 1997; therefore, we also find that the claimant failed to prove that he is entitled to additional temporary disability compensation in excess of that period of payment already accepted and paid by the respondents. [6] In reaching our decision, we note that Lynn McCulloch, a registered nurse practitioner who saw the claimant on two-week post-surgical follow up on April 16, 1997, indicated that the claimant was doing well post-surgically, that he was neurologically intact, and that his surgical incision had healed. At that time, the claimant was advised to begin walking for exercise, the claimant’s prescriptions were renewed, and, according to the April 16, 1997 note, the claimant was expected to build up his endurance over the following month. In addition, the April 16, 1997 note anticipated that when the claimant returned for his next follow up in another month, the claimant would, hopefully, begin a strengthening therapy program with perhaps a “progression toward work hardening with an eye toward returning him to work.” [7] However, the May 19, 1997, follow-up note of Dr. Richard McCarthy, who performed the claimant’s April 1, 1997 back surgery, does not contain any mention of any anticipated therapy for strengthening or work-hardening program. Instead, Dr. McCarthy released the claimant to return to work with a 30-pound lifting restriction, no repetitive forward bending, and alternate sitting or standing, as comfort dictates. Dr. McCarthy indicated that the claimant should return in six months for follow-up x-rays. The hearing in this case was held on October 13, 1997, (i.e., less than six months after Dr. McCarthy’s May 19, 1997 examination), and the record does not contain any follow-up reports from any health care providers after Dr. McCarthy’s May 19, 1997, office note. [8] On this record, we find that the greater weight of the evidence indicates that claimant’s back condition was as far restored as the permanent character of his injury would permit, at least by July 7, 1997. Although the nurse practitioner’s follow-up note in April suggests that the claimant might experience an extended recovery period requiring a strengthening therapy program, Dr. McCarthy, when he subsequently examined the claimant in May, did not reference a therapy program as a prerequisite to the claimant returning to work. In fact, Dr. McCarthy’s May 19, 1997, follow-up note does not reference any
additional post-surgical treatment for the claimant’s back. Instead, Dr. McCarthy released the claimant to return to work at that time, with what appears to be permanent restrictions consistent with the back surgery that he performed. Therefore, on this record, we find that Dr. McCarthy’s records indicate that he did not prescribe any additional treatment, other than a routine six-month follow up and x-rays, after his May 19, 1997 examination, and nothing in the claimant’s testimony at the hearing held on October 13, 1997, indicates that he ever anticipated or was prescribed any physical therapy or other treatment after the May 19, 1997 examination. Consequently, on this record, we find that the claimant failed to establish by a preponderance of the evidence that he remained within his healing period after July 7, 1997, as he asserts. [9] We also find that the respondents are entitled to a credit against future benefits for their overpayment of temporary disability compensation during the period that the claimant returned to work in 1996. We note that the claimant’s attorney indicated at the start of the hearing that he was not opposed to the credit, and the hearing record indicates that both parties intended to rely on the claimant’s testimony to determine the extent of the respondents’ credit. We note that the claimant’s temporary total weekly compensation rate in the present case is $184.00. Based on the claimant’s testimony, we find that the claimant earned an average of $200.00 per week for four weeks in 1996, while employed by Bynum Trucking Company. We also find that the claimant earned an average of $337.50 per week (the average of $300.00 per week and $375.00 per week) for six weeks in 1996, while employed by Rising Star Trucking. In addition, on this record, we find that the claimant’s wage-earning capacity during the four weeks that he worked for Bynum Trucking Company was $200.00 per week, and we find that the claimant’s wage-earning capacity during the six weeks that he worked for Rising Star Trucking was $337.50 per week. Therefore, we find that the respondents are entitled to a credit for any overpayment of temporary disability compensation made during the indicated ten-week period under the formula in Ark. Code Ann. §11-9-520 (Repl. 1996). [10] Therefore, after conducting a de novo review of the entire record and for the reasons discussed herein, we find that the claimant failed to establish that he remained within his healing period after July 7, 1997, when the respondents terminated the claimant’s temporary disability compensation. Therefore, we find that the administrative law judge’s award of additional temporary disability compensation beyond that date must be reversed. In addition, we find that the respondents are entitled to a credit against future benefits for any temporary disability compensation overpaid to the claimant pursuant to the formula in Ark. Code Ann. § 11-9-520 during the ten-week period that the claimant worked in 1996. [11] IT IS SO ORDERED. [12] _____________________________
ELDON F. COFFMAN, Chairman
_____________________________ MIKE WILSON, Commissioner
[13] Commissioner Humphrey concurs in part and dissents in part. [14] CONCURRING AND DISSENTING OPINION[15] While I concur with the holding by the majority that respondents are entitled to a credit against future liability for temporary disability payments made to claimant in 1996, during periods that claimant worked for other employers, I must respectfully dissent from the holding that claimant failed to prove that he remained in his post-surgical healing period beyond July 7th, 1997. [16] In my opinion when the April 16, 1997, report prepared by Nurse McCullough and the May 19th, 1997, report prepared by Dr. McCarthy are considered together they support the conclusion that claimant remained in his healing period. Nurse McCullough obviously believed that claimant would require therapy for strengthening and work hardening prior to returning to work. Claimant has never received that treatment. When Dr. McCarthy released claimant to return to light duty work “at this time” it is implied by that statement that the light duty restrictions are temporary. Therefore, claimant’s condition is subject to change and claimant’s back injury was not as far restored as the permanent character of his injury will permit. [17] Because claimant has established by a preponderance of the medical evidence that he remained in his healing as of the date of the hearing I would affirm the award of temporary total disability made by the Administrative Law Judge. [18] ________________________________ PAT WEST HUMPHREY, Commissioner