PRIDE v. EUDORA GARMENT, 2001 AWCC 135

CLAIM NO. E912671

MARY E. PRIDE, EMPLOYEE, CLAIMANT v. EUDORA GARMENT, EMPLOYER, RESPONDENT, GAB ROBINS NORTH AMERICA, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 14, 2001

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 BRUCE D. ANIBLE, Attorney at Law, Little Rock, Arkansas.

Decision of administrative law judge: Affirmed.

OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed January 18, 2001. The administrative law judge found that the claimant proved by a preponderance of the evidence that she was entitled to temporary total disability compensation from April 19, 2000 to June 29, 2000. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.

I. HISTORY

The parties stipulated that Mary Pride, age 36, sustained a compensable scheduled injury on August 23, 1999. Ms. Pride testified that she had begun working with a new machine which required manually lifting heavy rolls of material off a cart and placing the rolls onto a cradle. A physician diagnosed right elbow tendinitis on August 24, 1999 and returned the claimant to modified work duties. The physician’s notes appear to indicate that the claimant was not to lift or pull with her right upper extremity. Dr. Joe Pulliam diagnosed “Lateral epicondylitis” on August 31, 1999.

Dr. Pulliam instructed the claimant on September 1, 1999 to refrain from any use of her right hand; Dr. Pulliam wrote on September 3, 1999 that the claimant “may return to regular duties next week.” Dr. Randy Dishongh wrote on October 11, 1999:

Comes in with recurrent epicondylitis of the right elbow. . . .In the right forearm, she is doing a good bit of heavy work.

IMPRESSION: Tendonitis, right elbow.

PLAN: Go ahead and put her on light duty with job rotation if possible. . . .we will refer her to orthopedics, the company orthopedic doctor later this week.

Dr. Michael M. Moore began treating the claimant on October 11, 1999. Dr. Moore diagnosed “right lateral epicondylitis” and treated the claimant conservatively. Dr. Moore reported to the carrier on October 20, 1999:

Ms. Pride is a 35-year-old, right-hand dominant female who has worked at Eudora Garment on and off for approximately three years. She reports that in August of 1999, she began work on a new machine. Apparently, she performed work which required her to lift rolls of material above her head. In addition, Ms. Pride reports her job requires her to pull and spread material. She noted the insidious onset of pain over the lateral aspect of the right elbow.

***

It is my opinion Ms. Pride’s clinical history and physical examination are consistent with a right lateral epicondylitis.

I discussed treatment options at length with Ms.

Pride. It was my opinion she may benefit from conservative treatment. She underwent an injection over the right lateral epicondyle. She has been advised to wear a wrist splint and Froimson band continuously for one month. Ms. Pride can perform light duty work. She cannot use her arm for any work activity. . . .
I had a long discussion with Ms. Pride regarding her medical condition as it relates to work. It is my opinion she may have difficulty performing her current job on a regular basis. If possible,
I would recommend that she be considered for a job transfer. If she could perform work which required less gripping and lifting using her arms,
I suspect she would benefit from conservative treatment. Any consideration she could be given regarding this matter would be appreciated.

Dr. Moore indicated in a note that the claimant could return to work on October 21, 1999, “no use right arm, wear splint.” The claimant testified, however, that she was “off work” near the end of October, 1999 because of her compensable injury. The claimant testified that she would have been working for the respondents as a “spreader,” which position required manual labor with both upper extremities. The claimant said she began receiving temporary total disability compensation at about this time. (The record does not clearly indicate the precise dates of temporary disability paid by the respondents).

Dr. Moore wrote on November 17, 1999:

It is my opinion Ms. Pride’s clinical history and physical examination are consistent with a right lateral epicondylitis and right radial tunnel syndrome.

I discussed treatment options at length with

Ms. Pride. It was my opinion she would benefit from surgical treatment. . . .Ms. Pride felt her symptoms were significant; she has elected to proceed with a right lateral epicondylectomy, extensor carpi radialis brevis release, and right radial tunnel release. She understands the healing period for this treatment is approximately 4 to 6 months. In addition, she understands the surgery is being performed to improve her symptoms on a daily basis. She understands that she may not be able to return to work which requires significant lifting or gripping using her arm.

Dr. Moore again indicated, however, that the claimant could continue light duty, “No work for one hand only.” The record indicates that Dr. Moore did not perform surgery until February 3, 2000. Dr. Moore wrote on February 16, 2000:

Ms. Pride will begin therapy treatments to include scar massage, desensitization, and range of motion exercises. She can perform light duty work. She cannot use her right arm for any work activity.

Dr. Moore wrote to Heather Naylor, a vocational counselor, on March 29, 2000:

Mary Pride underwent a right lateral epicondylectomy and radial tunnel release on 02/03/00. She will be able to use her right arm for regular work activities approximately 4 to 6 months following surgery. It is my opinion she may have difficulty performing work activities that require repetitive gripping or lifting using her right arm. It is likely she will have difficulty performing lifting on a regular basis greater than 10 to 20 pounds using her right arm.
Ms. Naylor interviewed the claimant on March 30, 2000. “My main impression,” the vocational counselor testified, “was that she had a lot of good transferable skills and based on her current restrictions she would be able to return to the work force.” Ms. Naylor testified that she used Dr. Moore’s restrictions in identifying jobs for the claimant. Ms. Naylor identified such positions as “sales representative, social services case worker, food management aide, gate guard, parking lot attendant, dispatcher, information clerk, restaurant hostess, retail shop clerk — that’s just to list a few.”
Ms. Naylor stated that she identified several job leads for the claimant which conformed with the claimant’s physical restrictions. The claimant testified that she was not qualified for several of the positions referred by Ms. Naylor. The claimant said she was willing to work and applied at several other places, but was not hired. The respondents stopped paying temporary total disability compensation after April 18, 2000. The claimant testified, “I went to the company and I told the company that, you know, light duty, no repetitive use of right arm. They told me they had nothing for me. And then I got a letter in the mail stating my disability was discontinued.” The claimant testified that she applied for a security guard position with the respondents, but was never offered the position.

Dr. Moore wrote to Ms. Naylor on June 29, 2000:

It is my opinion Ms. Pride has reached her maximum medical improvement following the right lateral epicondylectomy, extensor carpi radialis brevis release, and right radial tunnel release. She can resume regular activities as tolerated. The impairment of her right arm is 5%.

The respondents accepted and paid the anatomical impairment rating but did not offer the claimant a job. The claimant found a job on her own in about July, 2000. She began working for the Arkansas Department of Correction, driving 73 miles daily to Cummins prison.

Ms. Pride contended that she was entitled to additional temporary total disability from April 19, 2000 to June 29, 2000, “during the time Dr. Moore released her for light duty and the respondent-employer would not return her to work.” The respondents contended that they hired a rehabilitation counselor to return the claimant to the work force, but that the claimant declined to participate. The respondents contended that the claimant was therefore not “totally incapacitated from earning wages” and was not entitled to additional temporary total disability.

After a hearing before the Commission, the administrative law judge found that the claimant proved by a preponderance of the evidence “that she remained in her healing period, unable to work, entitling her to temporary total disability benefits from April 19, 2000 to June 29, 2000.” The respondents appeal to the Full Commission.

II. ADJUDICATION
The claimant sustained a compensable injury to her right upper extremity, a scheduled injury pursuant to Act 796 of 1993 as codified at Ark. Code Ann. § 11-9-521(Supp. 1999). The Commission has determined that an employee with a scheduled injury must establish two requirements by a preponderance of the evidence in order to be entitled to temporary total disability compensation: 1) that she remains within her healing period; and 2) that she has not returned to work. Armstrong v. Wheeler Construction Company, Workers’ Compensation Commission E615744 (May 26, 2000).

In the present matter, the respondents argue that the Full Commission has erred as a matter of law in our interpretation of Ark. Code Ann. § 11-9-521 with regard to temporary total disability compensation. The respondents assert that the Commission must apply the standard announced in Arkansas State Highway andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981) for non-scheduled injuries in determining the claimant’s entitlement to temporary total disability. In an opinion delivered March 14, 2001, however, the Arkansas Court of Appeals stated, “We agree with the Commission’s interpretation of section 11-9-521(a). . . .We hold that the plain meaning of the language employed indicates that an employee who has suffered a scheduled injury is to receive temporary total or temporary partial disability benefits during his healing period or until he returns to work regardless of whether he has demonstrated that he is actually incapacitated from earning wages.” See, WheelerConstruction Company v. Armstrong, 73 Ark. App. ___, ___ S.W.3d ___ (2001).

Therefore, the Full Commission affirms the administrative law judge’s award of additional temporary total disability compensation from April 19, 2000 to June 29, 2000. The claimant sustained a compensable scheduled injury to her right upper extremity on August 23, 1999, originally diagnosed as “lateral epicondylitis.” The claimant tried to continue working, at least to some extent, after her compensable injury. A physician noted “a good bit of heavy work” the claimant was still performing with her injured right arm in October, 1999. By November 17, 1999, the claimant’s diagnosis included “right radial tunnel syndrome” as well as epicondylitis.

On November 17, 1999, Dr. Moore opined that the claimant would benefit from surgical treatment. Clearly, the claimant remained within her healing period at this time, and the claimant testified that the respondents began paying temporary total disability compensation. Although Dr. Moore essentially stated that the claimant could work with one hand, the record shows that no one-handed work was available in the respondent-employer’s clothing plant. The Commission notes that the claimant was paid “on production.” Dr. Moore did not perform surgery until February 3, 2000.

The respondents subsequently brought in a vocational counselor, Ms. Naylor. Dr. Moore told the counselor in March, 2000 that the claimant remained within her healing period, and “It is my opinion she may have difficulty performing work activities that require repetitive gripping or lifting using her right arm. It is likely she will have difficulty performing lifting on a regular basis greater than 10 to 20 pounds using her right arm.” Ms. Naylor interviewed the claimant and began lining up such jobs as sales representative, Department of Human Services case worker, and parking lot attendant. From the record before the Commission, we must conclude that these jobs would require two functional upper extremities. In any event, the preponderance of evidence indicates that the claimant cooperated with Ms. Naylor. The claimant did not immediately acquire work, but the record indicates the claimant was motivated to find work and followed up on Ms. Naylor’s referrals. “But the majority of them were just turning me down because I didn’t have the skills,” the claimant testified.

The respondents stopped paying temporary total disability after April 18, 2000. Although the preponderance of evidence indicates that the claimant remained within her healing period for the compensable injury, she applied for work with the respondents as a security guard, but she was not hired. Dr. Moore pronounced maximum medical improvement on June 29, 2000. The Full Commission affirms the administrative law judge’s award of temporary total disability compensation from April 18, 2000 until June 29, 2000.

Based on our de novo review of the entire record, the Full Commission finds that the claimant remained within her healing period and had not returned to work from April 19, 2000 to June 29, 2000. We therefore affirm the administrative law judge’s finding that the claimant proved by a preponderance of the evidence that she was entitled to temporary total disability compensation from April 19, 2000 to June 29, 2000. We find that the respondents are entitled to an offset for the unemployment benefits received by the claimant during this period, pursuant to Ark. Code Ann. § 11-9-506 (Supp. 1999). In this regard, the claimant recalled receiving two checks for unemployment benefits during the period for approximately $108 or $118 each. We award the respondents an offset for two weeks of unemployment benefits paid at $108 per week.

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 (Repl. 1996).

For prevailing 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 (Repl. 1996).

IT IS SO ORDERED.

________________________________ ELDON F. COFFMAN, Chairman
________________________________ SHELBY W. TURNER, Commissioner