CLAIM NO. E701101.
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 28, 2000.
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by J. STEPHEN HOLT, Attorney at Law, Little Rock, Arkansas.
Respondent represented by BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as Modified
OPINION AND ORDER
The respondent appeals a decision of the Administrative Law Judge filed on August 19, 1999, finding that the claimant proved by a preponderance of the evidence that she was entitled to temporary total disability benefits from the date they were last paid continuing through a date yet to be determined. Based upon our de novo review of the record, we hereby modify the decision of the Administrative Law Judge and find that the claimant was entitled to temporary total disability benefits through December 2, 1997.
This claim has a long and varied history. On February 3, 1998, the Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that she was entitled to additional temporary total disability benefits beyond May 8, 1997, and that the claimant was not entitled to past or continued psychological counseling at the expense of the respondents. The Administrative Law Judge found that the claimant’s psychological problems were not causally related to her compensable left knee injury she sustained on January 15, 1997. The Administrative Law Judge also found that the incident on May 31, 1997, was an independent intervening cause and the claimant was entitled to temporary total disability subsequent to May 31, 1997. The claimant filed an appeal to the Full Commission on the issue of additional temporary total disability benefits only. The Full Commission affirmed and adopted the opinion of the Administrative Law Judge. The claimant then appealed to the Arkansas Court of Appeals. On April 14, 1999, the Court of Appeals reversed and remanded the case to the Full Commission. The Full Commission, by an opinion dated May 26, 1999, found that the May 31, 1997, incident was not an independent intervening cause and remanded the case to the Administrative Law Judge to make further findings with regard to the claimant’s entitlement to temporary total disability benefits subsequent to May 31, 1997. By an opinion dated August 19, 1999, the Administrative Law Judge awarded the claimant temporary total disability benefits from the date the benefits were last paid to a date yet to be determined. It is from this Administrative Law Judge’s opinion that the appeal is currently before the 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 she is within her healing period and totally incapacitated to earn wages.Arkansas State Highway Transportation Dept. V. Breshears, 272 Ark. 244, 613 S.W.2d (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) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of her 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).
The evidence shows that the claimant is not entitled to temporary total disability benefits beyond December 2, 1997. The claimant ultimately came under the care of Dr. Scott Bowen. On May 2, 1997, Dr. Bowen authorized the claimant to remain off work for an additional two weeks. On May 13, 1997, he recommended three additional weeks of physical therapy. By a letter dated May 20, 1997, Dr. Bowen wrote that the claimant could finish an additional two weeks of physical therapy and then she was to obtain a functional capacity evaluation. Dr. Bowen was of the opinion that the claimant could return to modified desk duty.
Since Dr. Bowen was of the opinion that the claimant could return to duty on May 5, 1997, the Little Rock Police Department advised the claimant that she must be examined by Dr. James Moneypenny, a psychologist, regarding her fitness for duty. This is part of an evaluation from the Commission on Law Enforcement Standards and Training for a police officer in order to determine if the officer is fit for duty. Dr. Moneypenny opined that the claimant was not psychologically fit to return to her job as a police officer.
Stewart Thomas, Assistant Chief of Police, testified at the January 1998 hearing that the claimant was advised prior to suspension of her temporary total disability benefits that a desk job with clerical duties was available to her. However, Assistant Chief Thomas testified that the claimant would not have been allowed to return to duties after the receipt of Dr. Moneypenny’s May 8, 1997, report recommending that the claimant not be certified to perform any duties as a police officer at that time. The claimant was not fit for police duty from a psychological standpoint that was totally unrelated to her compensable injury. Although light-duty had been offered the claimant, she would have been unable to perform this duty based upon her psychological evaluation by Dr. Moneypenny. The respondents made light-duty available for the claimant within her restrictions identified by Dr. Bowen. However, she was unable to return to her work due to her psychological limitations which were not related to her compensable left knee injury. It is of note that the claimant never appealed the finding of the Administrative Law Judge initially that her psychological problems were not causally related to a work-related injury.
The evidence shows that Dr. Bowen released the claimant to light-duty on May 20, 1997, and certainly by December 2, 1997. A review of a December 2, 1997, report by Dr. Bowen shows that Dr. Bowen released the claimant from his care on that date. Dr. Bowen specifically stated that the claimant had reached maximum medical improvement from an orthopedic perspective. The report reads as follows:
Ms. Rowe is now nine months following her left knee orthoscopic surgery and over a year following her injury. She has continued pain in the area on a daily basis and is having near-falls and uses a cane. She does state she feels popping and catching in her knee.
On examination, she does have parapatellar tenderness and pain on attempted flexion and extension. I cannot determine any crepitus today.
She has undergone a work capacity assessment by Healthsouth, which notes significant limitations on page 6 of the evaluation. With these limitations, I don’t think that she can return to the police force, and at best would be in a sedentary position. She has some other issues going on that may worsen this, such as her low back problem and also I think she does have either some rheumatologic disorder, possibly a fibrosis, and I think needs to be under the care of a rheumatologist. There is really not much else I can do and I would release her from my care. I think she has reached her maximum improvement from my prospective. Based on the data from the work capacity evaluation, if necessary, a rating could be provided.
There is nothing within Dr. Bowen’s December 2, 1997, report to suggest that the claimant was still within her healing period. The claimant did not introduce any medical records past that showed that she was still within her healing period past December 2, 1997. In order for the Administrative Law Judge to have found that the claimant was within her healing period to a date yet to be determined required conjecture and speculation on his part. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v.Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). The evidence clearly shows that the claimant was not totally incapacitated from engaging in employment activities as a result of her knee injury after December 2, 1997. Therefore, based upon our de novo review of the record, we would find that the claimant is entitled to temporary total disability benefits though December 2, 1997.
IT IS SO ORDERED.
_______________________________ MIKE WILSON, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion’s finding that the preponderance of the evidence establishes that the healing period for the claimant’s work-related knee injury ended on December 2, 1997, when Dr. Bowen released the claimant as having reached maximum medical improvement. I write separately to point out that the claimant’s knee injury is a scheduled injury and that the injury occurred after July 1, 1993. Therefore, this claim is subject to the amendments of Act 796 of 1993.
A majority of the Full Commission recently interpreted the amendments of Act 796 of 1993 to have changed the law of temporary benefits for a scheduled injury. See, Armstrong v. WheelerConstruction Company, Full Workers’ Compensation Commission, Opinion filed May 26, 2000 (W.C.C. No. E615744). In the present case, the principal opinion cites Arkansas State HighwayTransportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981) for the proposition that an injured worker is entitled to temporary benefits while the worker is (1) within her healing period and (2) totally incapacitated to earn wages. I agree with the principal opinion’s interpretation of Breshears. However, a majority of the Commission found in Armstrong that the amendments of Act 796 to Ark. Code Ann. § 11-9-521 (a) indicate that theBreshears test is no longer applicable to scheduled injuries. Under the amendments of Act 796, an injured worker with a scheduled injury must now establish by a preponderance of the evidence that (1) she remains within her healing period and (2) she has not returned to work. In the present case, there is no question that the claimant had not returned to work during any period at issue in this claim. Consequently, I concur that the claimant is entitled to temporary benefits continuing until her healing period ended on December 2, 1997.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
While I agree with the concurring opinion that pursuant to the standard set forth in Armstrong v. Wheeler ConstructionCompany, Full Commission Opinion filed May 26, 2000 (E615744), claimant is entitled to benefits for temporary total disability at least until December 2, 1997, I must respectfully dissent from the denial of benefits beyond that date.
_____________________________ PAT WEST HUMPHREY, Commissioner