PULLEY v. TRANSCO LEASING, INC., 2000 AWCC 96

CLAIM NO. E805918

JIM R. PULLEY, EMPLOYEE, CLAIMANT v. TRANSCO LEASING, INC., EMPLOYER, RESPONDENT and CREDIT GENERAL INSURANCE CO./GALLAGHER BASSETT, INSURANCE CARRIER, TPA, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 29, 2000

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

Claimant represented by the HONORABLE M. KEITH WREN, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE WILLIAM C. FRYE, 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 September 9, 1999. The administrative law judge found that the claimant’s healing period ended on or before May 19, 1999, and that the claimant has shown that he is entitled to additional temporary total disability from November 7, 1998 through May 19, 1999. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.

The claimant, age 61 and educated through the eighth grade, began full-time work as a truck driver beginning in approximately 1963. The claimant had a prior injury and back surgery in 1982, after which he returned to full employment. The claimant testified that he did not seek further medical treatment for the 1982 back injury, and he went to work for the respondent-employer in approximately 1992. The record indicates that the claimant was treated in 1993 for Bell’s palsy and otolaryngological difficulties, and possible bronchitis in 1994. The claimant complained of headaches in 1995. The record includes a progress note, dated September 1995 and attributed to Dr. Roxanne Marshall. The diagnosis is “Left otitis media. DOT physical. . . .Please see the chart for the details of his DOT physical.” The chart is not included in the record before the Commission.

In 1996, the claimant was assessed with status-post back fusion with recent trauma and chronic back pain, recent fracture of the right ankle, resolving slowly, hypertension, and obesity. In addition, in 1996 the claimant was treated for a deep malignant melanoma on his back. In September, 1997, the claimant again presented to Dr. Marshall for a United States Department of Transportation physical. Dr. Marshall’s diagnosis was “Full DOT physical. Hypertension.” In December, 1997, the claimant presented to Dr. Marshall for yet another physical examination, at which time she wrote, “I did do a full DOT physical. He is fit for duty for a year. Please see the chart for the details, as I have put the physical form in the chart.”

The parties stipulated that the claimant sustained a compensable injury on April 1, 1998, which the claimant described at hearing:

I was driving a Kenworth conventional. To clean the windshield you have to tilt the hood forward on it and crawl up on top of the steering axle and the frame, then turn around. Your right foot is
standing on top of the steering axle, your left foot is on the frame of the truck. I slipped, and when I come down, my right hip caught the weight on the tire. I was coming down straddle the tire, mostly on the right hip. The feet would not reach the ground, so there was nothing to catch my fall except the buttocks when I come down on the steering wheel.

The respondents initially provided conservative medical treatment for the claimant’s compensable injury in addition to temporary total disability compensation. The carrier sent the claimant to Dr. Thomas Fletcher for a neurosurgical evaluation, and Dr. Fletcher began treating the claimant on April 23, 1998. Dr. Fletcher’s examination suggested “lumbar disc syndrome with nerve root irritation”, and he kept the claimant off work. A lumbar MRI taken April 30, 1998 showed diffuse lumbar disc bulging at L3-4 and also a disc bulge at L4-5. “These are significant findings relating to the recent work injury,” Dr. Fletcher reported.

By May, 1998, the claimant’s condition secondary to his work-related injury had worsened, in that he was having chronic and severe lower back and right leg pain. Dr. Fletcher reported “marked paraspinal muscle spasm” and thought surgery was indicated. The claimant was hospitalized June 4-5, 1998 to undergo an extensive decompressive lumbar laminectomy and discectomy at L4-5. Following surgery, Dr. Fletcher instructed the claimant to increase his walking up to one mile a day in one month and two miles a day in two months. On August 11, 1998, Dr. Fletcher noted that the claimant had followed the prescribed walking and exercise program, and was walking one and one-fourth miles daily. The claimant still had a great deal of stiffness and soreness, though, and Dr. Fletcher wrote that “some of the delay in his feeling better is due to the fact that he had considerable arthritis along with his disc problem as well as being a diabetic, which tends to slow healing as well.”

Dr. Fletcher corresponded with the carrier on October 15, 1998:

Jimmy R. Pulley was seen for examination regarding his lumbar disc problem on October 13, 1998. He underwent an extensive decompressive lumbar laminectomy which was carried out along with his discectomy. He has been slow in his recovery and describes daily constant pain with pain in the right leg and numbness on the inside of the right thigh. He has difficulty sleeping at night and sitting also bothers him after a short period of time. He has been walking about one mile a day in his exercise program. Pain is primarily in the lumbosacral area and extends into the buttock and down the right leg. With driving he experiences paresthesias of pins and needle sensation in the right foot and this is worse with activity also.

***

I again went over a stretching and strengthening exercise program for the back and legs with him, and believe his recovery will eventually be satisfactory but it is slow due to the fact that he had considerable arthritis associated plus the fact that he is a diabetic which tends to slow healing. At the present time he does not feel he is able to return to work and also is not sure he will be returned to his job. The company where he works cancelled his insurance and he is afraid he will be fired when he tries to return to work.

The respondents conducted surveillance of the claimant at his home for a short period on October 28-29, 1998. Charles Pipes, a risk manager for the respondent-employer, testified that he “had an idea” and decided to “swing by and get a little video” of the claimant. The primary focus of the resulting film includes scattered, rambling footage of trees, shrubs, and leaves. For intermittent clips of several seconds, an individual identified as the claimant is seen riding a tractor. The primary physical activity seen involves use of his hands and arms to turn the steering wheel. No twisting movement of the back is observed. Twice, the claimant is seen slowly bending over. On October 29, 1998, an individual is viewed from a distance walking with a guarded gait and appearing to bend over one time.

With regard to the dissent’s and the respondents’ “litany of excuses” argument, we note that the dissent quotes the claimant as stating, “If the videotape shows me doing things I told my doctors I could not do, it was because I was just having a really good day.” Actually, the claimant testified that “I was feeling better than average, and I just thought I’d get on the tractor and see if I could without it putting me into pain. . . .” The claimant estimated that he rode the tractor for 10-15 minutes, after which he felt severe pain; consequently, “I just walked around in my yard, just walked around and tried to walk it off.” The record also includes a series of six still photographs apparently relating to Mr. Pipes’ secret observation of the claimant’s activities. The first picture shows a gasoline station with a bulldozer parked in the grass. Pictures two and three show the claimant driving a vehicle that does not appear to be the same piece of machinery shown in the first photo. Number four shows the claimant bending at the waist, five shows the claimant driving. Finally, number six shows the claimant slightly bending at the waist.

The respondents opted to cease paying temporary total disability compensation after November 6, 1998, without offering the claimant any restricted-duty employment. Nevertheless, on December 1, 1998, Dr. Fletcher expressly stated that the claimant was still disabled from performing work activities. Dr. Fletcher examined the claimant on December 15, 1998 and found paraspinal muscle tightness and spasm. Concerned that the claimant may have suffered a recurrent disc, Dr. Fletcher recommended a repeat MRI for clarification. Nevertheless, the respondents refused to authorize the treating physician’s recommended diagnostic testing.

The parties deposed Dr. Fletcher on February 23, 1999. Dr. Fletcher stated that he performed surgery in order to accomplish relief of the claimant’s pain and “get him back to the preexisting activity level,” although he would not have recommended heavy lifting and straining. Dr. Fletcher stated that in order to better recover post surgery, patients such as the claimant “have to push themselves. Even though it hurts, they have to do more, exercise more, walk more, and at the same time they’re doing it, I realize it does hurt them, but they need to try to be more active, but he was having a lot of symptoms at the last time I saw him” in December, 1998. Dr. Fletcher opined that the normal healing time for the claimant following surgery would be between six to nine months.

Counsel queried Dr. Fletcher regarding the claimant’s home activities:

Q. And is that the type of thing that you would encourage him to get out and try to do to make a better recovery?
A. That is one of the things. I mean, I would — walking, exercising, and just trying out various activities.
Q. So, if I represent to you, Doctor, that there exists a videotape of Mr. Pulley riding a tractor for some 20 to 40 minutes, is that the type of activity that you would encourage him to get out and try?

A. Yes, sir.

Q. And also, Doctor, if , for example, Mr. Pulley represented that he had attempted to do that, would that necessarily cause you to release him to return to work full-time as a truck driver?
A. Well, it would — more things would have to be considered than that one thing.
Q. It’s fair to say, is it not, Doctor, that riding a tractor for 20 to 40 minutes is a substantially different level of activity than driving a truck 40 hours a week, is it not?

A. Yes, sir.

***

Q. And you stated, Doctor, that recovery, normal recovery time for someone similar to Mr. Pulley would be six to nine months for this type of injury?

A. Yes, sir.

Q. At this time would you say that Mr. Pulley’s recovery time is totally out of the ordinary?
A. Well, it’s slowed, yes. It slowed from what I would expect, but in the presence of the arthritis and the diabetes both, I would not be surprised.

Dr. Jim J. Moore, a neurological surgeon, independently evaluated the claimant for the respondents on May 19, 1999. Noting that the claimant complained of chronic pain, Dr. Moore stated that he agreed with Dr. Fletcher’s recommendation for a post-operative MRI. On May 20, 1999, Dr. Moore wrote that the claimant’s post-operative MRI was confusing and thought further clarification would be necessary with a myelogram and contrasted CT scan.

The employee claimed entitlement to additional worker’s compensation, contending that his healing period had not ended, and that he was entitled to additional temporary disability compensation from the date controverted by the respondents through a date to be determined. The respondents contended that the claimant had reached the end of his healing period, and that he was not entitled to additional temporary total disability. The parties agreed that the sole issues for determination were whether the claimant’s healing period had ended and whether he was entitled to additional temporary disability. The claimant reserved the issue of permanent disability.

Meanwhile, Dr. Moore noted on July 27, 1999:

The myelogram and contrasted CT was carried out 7-9-99. . . .This showed defects primarily posterior lateral especially at the L4/5 level and the L3/4 level greater right than left. The extradural deformity at L4/5 was improved by exaggerated flexion so the bending process did suggest capability of improvement. The contrasted CT confirmed the evidence of spinal stenosis at both L3/4 and L4/5. . . .I pursued a bone scan and this study showed evidence of increase uptake of mild nature
in the right sided facet at the L3/4 level, some arthritic uptake in both knees. The patient is seen today in re-examination as indicating. I have discussed with him his findings. In my mind, although the patient has considerable problems present in the diagnostic studies, I am inclined to think that additional surgery would not necessarily be of any great value to him. He does have a trigger in the right sacroiliac that could be treated more conservatively with injection therapy. Based upon AMA Guidelines, 4th Edition, Table 75, it would be felt that this patient’s disability level would be 13% permanent partial to the body as a whole. The patient tells me that his case has been referred to Dr. Anthony Russell by Dr. Fletcher’s office who has since retired. The diagnostic studies as accomplished would be of value to Dr. Russell if he continues to follow the patient neurosurgically.

Following a hearing before the Commission, the administrative law judge stated that “the medical evidence is replete with objective evidence of continuing injury and that there is no competent evidence that Dr. Fletcher kept the claimant from returning to gainful employment based solely upon persistent complaints of pain.” The administrative law judge found that the respondents were not justified in terminating the claimant’s benefits solely on the video surveillance. The administrative law judge determined:

Dr. Fletcher never found the claimant’s healing period to have ended, and, in fact, restricted the claimant from returning to his regular employment while, at all times, recommending additional diagnostic studies which were delayed and frustrated by respondents’ course of conduct. The studies recommended by Dr. Fletcher were never authorized until May 19, 1999, when Dr. Moore, the physician selected by the respondents, corroborated the recommendations of Dr. Fletcher and the repeat diagnostic studies were performed at the time of Dr. Moore’s evaluation, May 19, 1999. There is no medical evidence whatsoever that claimant’s healing period had ended when respondents terminated indemnity benefits. Based upon a review of the entire record, including, but not limited to the medical evidence, I find that claimant has shown, by a preponderance of the credible evidence, that he is entitled to temporary total disability through May 19, 1999, when the additional diagnostic studies originally recommended were performed.

***

It is herein concluded that claimant’s condition had become stable as of May 19, 1999, and that no further treatment was provided after that date. Although additional studies were carried out to confirm the final diagnosis, the additional medical did not extend the healing period. While the claimant may be entitled to ongoing reasonably necessary medical treatment, he is not entitled to temporary total disability beyond May 19, 1999. It appears claimant’s persistent complaints are permanent in nature. Permanent disability has been specifically reserved.

The administrative law judge therefore directed the respondents to pay additional temporary total disability compensation from November 7, 1998 and continuing through May 19, 1999. Respondents appeal to the Full Commission.

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). 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(12) (Supp. 1999). 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. The claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, persistent pain does not suffice, 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).

In the present matter, the parties stipulated that the claimant sustained a compensable injury on April 1, 1998. The claimant was unable to work following the compensable injury, and the respondents initially provided temporary total disability compensation. Dr. Fletcher, a neurosurgeon, examined the claimant on April 23, 1998; Dr. Fletcher diagnosed lumbar disc syndrome and kept the claimant off work. A subsequent MRI showed disc bulging at L3-4 and L4-5, which abnormalities Dr. Fletcher causally related to the compensable accidental injury. In June, 1998, Dr. Fletcher performed an extensive decompressive lumbar laminectomy and discectomy at L4-5, which treatment was accepted and paid for by the respondents. Dr. Fletcher instructed the claimant to remain active following surgery, which activities included walking and exercise. Dr. Fletcher later opined that the required healing time following the claimant’s surgery would be at least six to nine months. The Full Commission affirms the administrative law judge’s determination that the claimant remained within his healing period and totally incapacitated to earn wages as of the time the respondents terminated temporary total disability in November, 1998, until May 19, 1999, at which time the treating physicians opined that the claimant’s underlying condition had become stable.

It is exclusively the function of the Workers’ Compensation Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). We are not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony deemed worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1997). In the present matter, the Full Commission expressly finds the claimant to be a credible witness, and we attach significant weight to his testimony. In reaching this conclusion, we are not swayed by the “litany of excuses” which the dissent attributes to the claimant after being confronted with the amateur home video footage relied on by the respondents to cease providing temporary disability compensation in November, 1998. The administrative law judge acknowledged that the claimant may have appeared to be more active on the 20-minute videotape than his treating physicians may have expected, even though Dr. Fletcher had encouraged such activity as part of the claimant’s treatment for his compensable injury. Further, we are persuaded that the videotape evidence propounded by the respondents does little more than demonstrate that the claimant was not bedridden; such a condition is not a sine qua non for an award of temporary total disability. See, Stansell v. AMINational Park Medical Center, Full Workers’ Compensation Commission, March 10, 1997 (E507183).

Further, we are unable to glean from the record a single instance where the claimant “has previously misrepresented his back problems,” or that he “has financial motive to do so again.” The Department of Transportation reports by Dr. Marshall do not indicate that the claimant was hiding his prior back injury and surgery; we note that the records of the actual physical examinations are not before the Commission. Our award of temporary total disability compensation is based on a finding that the claimant remained within his healing period and totally incapacitated to earn wages. The respondents’ speculation that their employee was earning more through temporary disability than his regular wages is of no moment in our determination. Speculation and conjecture can never be substituted for credible evidence, no matter how plausible. Dena Construction Co. v.Herndon, 264 Ark. 791, 575 S.W.2d 155 (1980).

Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the claimant proved by a preponderance of the credible evidence that he remained within his healing period and totally incapacitated to earn wages from November 7, 1998 through May 19, 1999. We thus affirm the opinion of the administrative law judge.

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.

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ELDON F. COFFMAN, Chairman

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PAT WEST HUMPHREY, Commissioner

Commissioner Wilson dissents.

DISSENTING OPINION
I must respectfully dissent from the majority’s opinion finding that the claimant is entitled to temporary total disability benefits for the period November 7, 1998 to May 19, 1999. In my opinion, the claimant has failed to meet his burden of proof.

The evidence fails to support a finding that the claimant remained within his healing period after November 7, 1998. Considerable evidence is in the record that showed the claimant was able to physically do more than he told his physician that he could do. When confronted with this evidence, the claimant gave a litany of excuses: 1.) The videotape has the wrong date, no matter what the evidence is to the contrary; 2.) I did not have any chronic back problems and I don’t remember telling my doctors about those problems before I got hurt in 1998; 3.) My arthritis is no worse than anyone else’s so it’s ok for me to tell my health insurer I don’t have arthritis; 4.) If the videotape shows me doing things I told my doctors I could not do, it was because I was just having a really good day. Besides, my back hurt real bad after I rode the tractor; and 5.) The wage record showing that I’ll make more money by drawing TTD than working is not right. My records show I’d make more by working. I did not bring my records because I did not know about the employers wage records, even though my attorney got those records long before the hearing. The claimant obviously was seeking to avoid telling the truth and his credibility is zero. His testimony is entitled to little if any weight.

The claimant suffered a significant lumbar spine injury in the early 1980’s which required him to undergo surgery in 1982. The claimant testified that he experienced no problems with his lower back between 1982 and 1998 and that he had never sought medical treatment for that injury in the intervening period. The medical evidence clearly rebuts the claimant’s testimony.

In October of 1997, Dr. Roxanne Marshall noted the claimant had complaints of right hip and leg pain. On cross-examination, the claimant said he could not recall saying that to Dr. Marshall. Dr. Dennis Berner, in May of 1995, listed chronic arthritis in the back as one of the claimant’s ongoing complaints. The claimant did not remember making that complaint to Dr. Berner, either.

In May 1996, Dr. Berner made the following notation:

He does have a history of having an old back fracture and fairly progressive surgical procedure for fixation of the back. This gives him trouble from time to time and since the fall in December he has never quite gotten over the back problem as well.

Not surprisingly, the claimant said he could not remember giving Dr. Berner that history. Dr. Berner’s assessment at that time was that the claimant was post-back fusion with recent trauma and chronic back pain.

On June 13, 1996, Dr. Berner noted the claimant’s complaints of neck and shoulder stiffness, which suggested degenerative arthritis, “which we know is present elsewhere in his body and back.” Dr. Berner recommended a trial of the anti-inflammatory drug Relafen. The claimant said he did not remember that happening, either.

In addition to misrepresenting the severity of his preexisting condition after the 1998 injury, the claimant has demonstrated a pattern of omitting the information when it was in his economic interest to do so. The claimant was confronted with two prior Department of Transportation (DOT) physical reports during the hearing. He denied telling the examining physician that he had no prior back problems. He admitted, however, that both a September 29, 1997 report and a December 26, 1997 report had “no” answers marked to the question about prior spinal injuries. The claimant admitted those answers were not correct, but excused the discrepancy by saying he did not sign off on the forms. The DOT exams were required for the claimant to work as a truck driver.

The claimant was also confronted with a Blue Cross-Blue Shield information sheet, which he had signed. He admitted that he had marked down “no” to a question asking whether he had arthritis in the past. His explanation for the false answer was the he did not have any more arthritis in his body than the average man. Again, the claimant misrepresented his physical problems for financial gain. Specifically, he failed to disclose a significant chronic preexisting condition to a health insurer.

Having previously failed to disclose the severity of his back problems when it was to his financial advantage, the claimant has now turned to exaggerating his present condition for financial gain. The claimant nets more money on temporary total disability than he did while working as a truck driver.

The majority states that the claimant does not have to be bed ridden to receive temporary total disability benefits. I agree. However, the evidence shows that the claimant has previously misrepresented his back problems and has financial motive to do so again. The claimant has the ability to be much more physically active than he wants his physician to know.

Accordingly, I would reverse the decision of the Administrative Law Judge. Therefore, I respectfully dissent from the majority opinion.

______________________________ MIKE WILSON, Commissioner