CLAIM NO. E513736
JUDY RATCHFORD, EMPLOYEE, CLAIMANT v. BELDEN WIRE CABLE COMPANY, EMPLOYER, RESPONDENT and CRAWFORD COMPANY, CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 23, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID McCORMICK, Attorney at Law, Russellville, Arkansas.
Respondent represented by THOMAS DIAZ, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed March 18, 1997, finding that claimant has failed to prove by a preponderance of the evidence entitlement to additional temporary total disability benefits. Based upon our de novo review of the entire record, we find claimant has failed to meet her burden of proof. Therefore, we affirm the Administrative Law Judge’s decision.
[3] Claimant sustained a compensable injury to her right elbow and cervical spine during the course and scope of her employment. Claimant’s injury was accepted as compensable and medical benefits, temporary total disability benefits through May 1, 1995, and a 5% anatomical impairment rating to the body as a whole have been paid. At the hearing held on November 22, 1996, claimant contended entitlement to additional temporary total disability benefits from February 20, 1996, through the end of her assigned physical therapy as well as medical expenses, and attorney’s fees. In addition, claimant alleged that she was wrongfully terminated as a result of filing her workers’ compensation claim. In the opinion filed March 18, 1997, the Administrative Law Judge found claimant failed to prove entitlement to additional benefits for temporary total disability benefits and found that she failed to meet her burden of proof on the retaliatory discharge issue. On appeal, claimant only argues that the decision of the Administrative Law Judge should be reversed with regard to the temporary total disability and medical benefits. Claimant has not appealed the finding regarding a failure to prove claimant was wrongfully terminated.
[4] The record reveals that claimant was released to full-duty in May of 1995. However, claimant was placed in a light-duty status. In August of 1995 the light-duty work ended and as opposed to working full-time, claimant was off work from August of 1995 through November of 1995. On November 22, 1995, respondent received a medical report from Dr. Kevin Collins indicating that claimant had reached maximum medical improvement back in May of 1995 and was capable of performing full-duty work at that time. While claimant had previously received temporary total disability benefits from August 18, 1995, through November 30, 1995, respondent reclassified these benefits and credited them towards the permanent partial disability benefits for claimant’s 5% impairment rating to the body as whole. On appeal to the Full Commission, claimant argues that it was error for respondent to reclassify these benefits when it was respondent who held claimant off work during this period of time. We are not persuaded by claimant’s argument. First, we note that the prehearing order made part of the record indicates that the only temporary total disability benefits to be litigated at the hearing were claimant’s entitlement to benefits from February 20, 1996, through a date yet to be determined. Thus, we find that claimant’s entitlement to temporary total disability benefits from August 18, 1995, through November 30, 1995, was not an issue to be litigated at the hearing. Although claimant’s attorney tried to elicit evidence regarding temporary total disability benefits during this time frame through respondent’s witness, Cathy Tessin, respondent’s attorney objected to the Administrative Law Judge considering claimant’s entitlement to benefits during this time frame as it was not an issue listed on the prehearing order. Nonetheless, the Administrative Law Judge appears to have considered claimant’s entitlement to benefits during this time frame as noted by the exchange between the Administrative Law Judge and counsel at the conclusion of the hearing. In fact, the Administrative Law Judge ordered the parties to submit documentation at the close of the hearing on this issue.
[5] Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept. v. Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). The healing period continues until the employee is a far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker,
4 Ark. App. 124,
628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized.
[6] Even assuming that the issue of temporary total disability for August through November 1995 was a proper issue at the hearing, from our review of the evidence, we cannot find that claimant has proven by a preponderance of the evidence that she remained within her healing period and totally incapacitated from earning wages between August 18, 1995, and November 30, 1995. First, we note that the medical evidence indicates that claimant reached maximum medical improvement as of May 1, 1995. Although claimant was off work between August 18, 1995, and November 30, 1995, we cannot find that claimant has proven by the evidence of record that she was within her healing period at this time or that she was required to be off work as a result of her compensable injury by respondent. While claimant does allege in her brief that it was respondent who prevented claimant from working during this time frame, such has not been proven in the record. We see nothing in the record indicating with clarity why claimant was off work during this time frame. Accordingly, we find that claimant has failed to meet her burden of proof of entitlement to benefits from August 18, 1995, through November 30, 1995. The mere fact that claimant testified that light-duty work was no longer available after August 18, 1995, is not sufficient. If light-duty work was not available, and since the medical records indicate that claimant was capable of performing full-duty work as of May 1, 1995, claimant has failed to present sufficient evidence indicating why she was not working full-time. The burden of proof rests with the claimant. In our opinion it would be impermissible speculation to assume based upon the evidence presented that respondent refused to allow claimant to work after the light-duty job expired. Although Ms. Tessin admitted that claimant was off work during this time frame while the company waited for a doctor to say what the problem was, this is not enough evidence to estop respondent from crediting TTD as PPD. Claimant has previously been released to full-duty. Claimant was no longer within her healing period and there was no evidence that it was the respondent and not the claimant that insisted on the word from a doctor regarding claimant’s work status. Claimant has failed to explain why respondent would insist she remain off work when respondent already possessed a release to return to work on a graduated time scale back in May of 1995 by Joseph Sheppard. By the middle of May claimant had been released to full duty, full time. If not for claimant’s insistence that she could not work, why would respondent ignore this release?
[7] Claimant next argues on appeal that she is entitled to temporary partial disability benefits for those days that she was attending physical therapy at Health South. The record reflects that in February of 1996 claimant was scheduled to attend physical therapy in Little Rock three days a week. On the days claimant was scheduled to attend physical therapy, she was not scheduled to work. However, claimant was scheduled to work on the two days each week on which she was not scheduled to attend physical therapy. Regardless of the fact that claimant was scheduled to attend physical therapy, there is nothing in the record to indicate that claimant remained in her healing period or had re-entered her healing period while she was scheduled to undergo physical therapy. As set forth above, temporary total disability benefits (or temporary partial disability benefits) are not payable unless a claimant remains within her healing period. As of February, 1996, it had previously been determined that claimant had reached maximum medical improvement in May of 1995. Claimant had been assigned a 0% physical impairment rating by Dr. Shepard and a 5% impairment rating by Dr. Collins. At the time Dr. Collins recommended physical therapy he did not elaborate on the status of claimant’s healing period. Dr. Collins made no changes in claimant’s work status nor did he provide claimant with any report excusing claimant from work. Conceivably, Dr. Collins intended for claimant to both work and attend physical therapy. It has long been recognized that a healing period can end although a claimant may continue to require medical treatment in the form of medical maintenance. It appears that the physical therapy ordered by Dr. Collins in February of 1996 was just that, medical maintenance. Since claimant no longer remained within her healing period, we cannot find that she has proven entitlement to either temporary total or temporary partial disability benefits.
[8] Finally, claimant contends that she is entitled to receive additional medical treatment for her compensable injury. The Administrative Law Judge did not address claimant’s entitlement to such benefits in her opinion. After reviewing the record, it is readily understandable why the Administrative Law Judge did not address this issue. Aside from claimant’s complaints of continued headaches, there is no evidence in the record that claimant is actually in need of additional medical treatment. Claimant did not introduce any outstanding medical bills nor did she avidly contend that she has been deprived of additional medical treatment. However, since it is clear that claimant sustained a compensable injury in January of 1995, we find that claimant is entitled to additional reasonable and necessary medical treatment for her compensable injury. However, as it appears that respondent has not actually controverted claimant’s entitlement to such medical treatment since none has actually been requested and denied, we cannot find that claimant’s attorney is entitled to a fee on this award.
[9] Accordingly, for those reasons stated herein, we find that the decision of the Administrative Law Judge should be and hereby is affirmed.
[10] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[11] Commissioner Humphrey dissents.
