PIERCE v. ARKANSAS HIGHWAY TRANSPORTATION DEPARTMENT, 1994 AWCC 127

CLAIM NO. D918878

VICTOR SHAWN PIERCE, EMPLOYEE, CLAIMANT v. ARKANSAS HIGHWAY TRANSPORTATION DEPARTMENT, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 16, 1994

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 CALVIN GIBSON, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified in part and reversed in part.

[1] OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on March 31, 1994. In that opinion and order, the administrative law judge found that the claimant was entitled to temporary total disability compensation through May 3, 1993 and that he sustained a 20 permanent physical impairment to the left lower extremity. In addition, the administrative law judge found that the claimant was entitled to compensation for rehabilitation expenses in the amount of $9,560.00.

[3] 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 temporary total disability compensation beyond July 22, 1991. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. In addition, we find that the claimant is entitled to compensation for the actual expenses related to his program of rehabilitation, but we find that he failed to prove that he is entitled to any compensation for maintenance during the period of vocational rehabilitation. Therefore, we find that the administrative law judge’s decision must be affirmed as modified. We also find that the claimant proved by a preponderance of the evidence that he sustained a 20% permanent physical impairment to his left lower extremity, so we find that the administrative law judge’s decision in this regard must be affirmed. [4] The claimant was employed by the respondent as an assistant bridge inspector, and his duties involved painting and inspecting bridges. On November 13, 1989, he had climbed onto a scaffold to do some sandblasting, when a strong wind blew a ladder onto the scaffold, knocking the claimant off. He fell approximately 12 to 15 feet. As a result of this incident, he sustained an injury to his left ankle. He was initially treated at the emergency room at Russellville, and, then, he came under the care of his family physician, Dr. Kelley Meyer, who diagnosed an avulsion fracture of the left fibula. Dr. Meyer ultimately treated this condition, and, then, he referred the claimant to Dr. James Kolb, an orthopedic surgeon. [5] Dr. Kolb first examined the claimant on January 30, 1990, and he determined that x-rays showed fractures of the left tibia and of the left talus. However, he also opined that the claimant might have sustained other damage to his left ankle. Consequently, when the claimant’s complaints persisted, Dr. Kolb ordered a MRI, and he performed an arthroscopy. The arthroscopy revealed a large area of articular cartilage that had been damaged on the weight bearing surface of the distal tibia, and he performed a cartilage shave, and partial synovectomy of the left ankle. The claimant was restricted from bearing weight on the extremity for a period of time, and he underwent physical therapy. Dr. Kolb continued to follow the claimant regularly until May 3, 1993, when he released him with a 20% impairment rating to the left lower extremity. Dr. Kolb has opined that the claimant is restricted from any employment involving standing or lifting or carrying for any significant distance. [6] 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 Highwayand 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 he is within his healing period and suffers only a decrease in his capacity to earn the wages that he 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 (6) (1987). 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 his 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). [7] In the present claim, the respondent paid temporary total disability compensation through July 22, 1991. On July 22, 1992, the claimant underwent a one time evaluation by Dr. Joe W. Crow, an orthopedic physician, at the request of the respondent, and, due to the fact that the claimant’s symptoms had been unchanged for one year prior to that examination, Dr. Crow opined that the claimant’s healing period had ended at least one year prior to that examination. However, Dr. Kolb continued to opine that the claimant remained in his healing period until May 3, 1993, when he released him with an impairment rating. Nevertheless, beginning shortly after the arthroscopy in 1990, Dr. Kolb’s reports consistently reflect findings of only minimal swelling and minimal range of motion limitations, and his reports consistently indicate that the claimant walked with a slight limp which increased as he walked faster. The reports also indicate that the claimant experienced increased swelling whenever he engaged in activities which involved increased use of the ankle. In this regard, Dr. Kolb’s May 3, 1993, report contains the following findings:

Shawn has minimal limitation of motion of his left ankle. He has some swelling of the ankle.
This is, again, minimal, but definite. There is tenderness over the anterior aspect of the ankle to palpation.

[8] In addition, this report indicates that x-rays showed characteristics of early minimal post-traumatic arthritic changes. However, as early as November 1, 1990, Dr. Kolb’s report contained the following findings:

He continues to have pain and swelling in the ankle, especially with increased walking or activities which cause him to be on his feet. Today, examination reveals an improved ankle. His range of motion is almost normal and he has only very minimal swelling and tenderness. . . .

[9] Likewise, Dr. Kolb’s January 24, 1991, report contains the following findings:

Examination reveals he has a good range of motion of the left ankle but has pain on extremes of motion. He walks with a slight limp and if he walks faster his limp increases. X-rays reveal the joint space appears normal. There is a questionable cystic area in the distal tibia adjacent to the articular surface.

[10] Also, Dr. Kolb’s April 18, 1991, report contains the following findings:

Exam reveals he is very tender over the ankle joint. There is minimal swelling. He has limited motion with pain on the extremes of motion.

[11] Also, Dr. Kolb’s August 13, 1991, report reflects the following findings:

Examination reveals that he has fairly normal plantar flexion but dorsiflexion is limited to a neutral position. He walks slowly with a fairly normal gait but cannot walk fast. His swelling is minimal today, but he hasn’t been on his feet.

[12] With regard to his improvement since he was examined by Dr. Crow, the claimant testified that he experiences less swelling, but he also testified that he has not been as physically active as previously. Otherwise, his testimony indicates that his condition at the time of the hearing differed little from his condition when he was examined by Dr. Crow. [13] In short, in accord with Dr. Crow’s opinion, Dr. Kolb’s clinical findings as well as the claimant’s own testimony establish that claimant’s condition plateaued well before July 21, 1991. Furthermore, there is nothing in the medical reports to indicate that further improvement can be expected with additional modes of treatment or with time. In fact, both Dr. Kolb and Dr. Crow indicated that the claimant’s ankle will eventually have to be fused, indicating that his condition can be expected to worsen with time. Consequently, we find that the claimant had reached maximum medical improvement at least by July 21, 1991, and, therefore, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. [14] In addition, we find that the claimant is entitled to permanent partial disability compensation based on a 20% permanent physical impairment to the left lower extremity. In this regard, Dr. Crow opined after examining the claimant on July 22, 1992, that he sustained a 6% permanent physical impairment to the left lower extremity. However, on May 3, 1993, Dr. Kolb opined that the claimant sustained a 20% impairment to the left lower extremity. In this regard, the medical evidence establishes that the claimant will indefinitely continue to experience swelling whenever he stands for long periods of time, and his condition will necessitate the wearing of an ankle brace indefinitely. In addition, he will have to receive periodic injections due to swelling related to the injury. Consequently, we find that the preponderance of the evidence establishes that the claimant sustained a 20% permanent physical impairment to the left lower extremity as a result of his injury. [15] With regard to vocational rehabilitation, the claimant began attending college courses at Arkansas Tech University during the summer of 1990. He was majoring in journalism, and he was concentrating on public relations and business management in this field, which would require less work on his feet. He had previously received two semesters of college credit, and, according to his testimony, he began attending classes after his injury to relieve boredom and because a better education might enable him to return to employment not involving manual labor. He was planning on completing the requirements for a bachelors degree during the summer of 1993. [16] The respondent accepted the claimant’s plan of rehabilitation and paid benefits from September 16, 1991, through May 22, 1993. However, the respondent contends that it has paid all that the claimant is entitled to receive, and the claimant contends that he is entitled to additional allowances and benefits for expenses connected with the program of rehabilitation and his maintenance. In this regard, the claimant has submitted into evidence an itemized statement of his costs which includes housing, utilities, groceries, child care, and transportation costs, as well as tuition, textbooks, and fees. These expenses total $16,140.00 for the fall semester of 1992, the spring semester of 1993, and both summer terms of 1993. In addition, the claimant submitted into evidence a statement from the Arkansas Department of Human Services which indicates that the cost of attending Arkansas Tech University and living off campus was $9560.00. [17] Ark. Code Ann. § 11-9-505 (a) (1987) provides the following:

In addition to benefits otherwise provided for by this chapter, an employee who is entitled to receive compensation benefits for permanent disability shall be paid reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee. The employer’s responsibility for additional payments shall not exceed sixty (60) weeks, regardless of the length of the program requested.

[18] In light of the respondent’s acceptance of the claimant’s program of rehabilitation in the present claim, we find that the program of rehabilitation is reasonable in relation to the claimant’s compensable injury. Consequently, the claimant is clearly entitled to compensation for all actual expenses of the program, such as tuition, textbooks, fees, and travel. However, with regard to “maintenance,” as used in this statute, the Arkansas Court of Appeals has found that the statute “contemplates rehabilitation at an institution or place away from the claimant’s home, thus necessitating `maintenance.'” Model Laundry and DryCleaning v. Simmons, 268 Ark. 770, 596 S.W.2d 337 (1980);see also, Gray v. Armour Co., 268 Ark. 1072, 598 S.W.2d 434 (1980). The Court has also found that maintenance benefits are not paid for expenses that are “in no way unusual or extraordinary in the sense of involving extra expenses related to vocational rehabilitation above and beyond normal living expenses.” Ryan v. Genuine Parts Co.,268 Ark. 1065, 598 S.W.2d 443 (Ark.App. 1980); see also,Gray, supra. Therefore, benefits under the Act “are not paid on the basis of an individual’s claim of need for general family living expenses.” Ryan, supra; see also,Gray, supra; Simmons, supra. [19] In the present claim, we find that the claimant failed to show that he is entitled to any compensation for maintenance during his course of vocational rehabilitation. Other than the expenses for tuition, textbooks, fees, and travel, the expenses itemized by the claimant constitute normal living expenses. Likewise, the estimated costs contained on the Department of Human Services statement includes normal living expenses. Notably, the claimant lived in Russellville where he is attending college at the time of the accident, and he still lives in the same location. [20] In short, we find that the claimant proved by a preponderance of the evidence that he is entitled to compensation for actual expenses related to his program of rehabilitation, such as tuition, textbooks, fees, and travel, during the 60 weeks allowed by the statute. However, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any compensation for maintenance expenses. [21] Finally, Dr. Kolb’s records indicate that the claimant experienced elevated liver enzymes as a result of medication he was taking for the compensable injury. As a result of this problem, certain diagnostic procedures were performed on the claimant, and he received some treatment. We find that these expenses are causally related to the compensable injury and the liability of the respondent. [22] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary total disability compensation beyond July 21, 1991. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is reversed. However, we find that the claimant proved by a preponderance of the evidence that he sustained a 20% permanent physical impairment to the left lower extremity and that he is entitled to permanent partial disability compensation based on that impairment. Therefore, we find that the administrative law judge’s decision in this regard must be, and hereby is affirmed. We also find that the claimant proved by a preponderance of the evidence that he is entitled to compensation for the actual costs of his program of vocational rehabilitation, including the costs of tuition, textbooks, fee, and travel. However, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to compensation for maintenance expenses during the period of vocational rehabilitation. Therefore, the administrative law judge’s decision in this regard is affirmed as modified. Finally, we find that the respondent is liable for any expenses related to the claimant’s elevated liver enzyme levels, so the administrative law judge’s decision in this regard is affirmed. [23] 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 Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809
(1987). For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (b) (1987). [24] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[25] Commissioner Humphrey concurs.