SANDERS v. COOPER TIRE RUBBER COMPANY, 1997 AWCC 333

CLAIM NO. E410502

TONY SANDERS, EMPLOYEE, CLAIMANT v. COOPER TIRE RUBBER COMPANY, EMPLOYER, RESPONDENT and SEDGWICK JAMES OF ARKANSAS, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 20, 1997

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

Claimant represented by KELLY M. TIDWELL, Attorney at Law, Texarkana, Texas.

Respondents represented by WILLIAM G. BULLOCK, Attorney at Law, Texarkana, Texas.

[1] OPINION AND ORDER
[2] The above-captioned claim is before the Full Commission upon a remand from the Arkansas Court of Appeals issued June 11, 1997.

[3] An Administrative Law Judge issued an opinion and order in the instant claim on May 10, 1995, finding that claimant had sustained a compensable injury on February 10, 1994, in the form of an “exacerbation” of a previous compensable injury which occurred on September 15, 1993. The Administrative Law Judge further found that claimant was entitled to an award of thirty (30) days of temporary total disability benefits commencing April 24, 1994. [4] Respondents appealed the decision of the Administrative Law Judge to the Full Commission, and we issued a majority opinion on May 2, 1996, finding that on February 10, 1994, claimant did sustain a compensable recurrence of his prior work-related injury. Our majority thus affirmed the decision of the Administrative Law Judge and awarded “all accrued benefits” at the conclusion of our opinion. [5] Respondents thereafter appealed to the Arkansas Court of Appeals, apparently challenging both the compensability of the February 10, 1994, event and the award of temporary total disability benefits. In an opinion not designated for publication, the Court of Appeals determined that our award of “all accrued benefits” was insufficient and that we had “failed to make findings of fact regarding appellee’s entitlement to temporary total disability benefits . . .” The Court went on to remand the claim with instructions for the Commission to make findings of fact regarding appellee’s entitlement to temporary total disability benefits. [6] Our previous treatment of this claim was predicated upon the assumption that the issue of temporary total disability benefits had been abandoned, since neither party presented us with any arguments relating to that topic. Bradford v. Arkansas StateHospital, 270 Ark. 99, 603 S.W.2d 896 (1980). We also took note of the following passage from respondents’ brief, in which they expressly defined the issue we were asked to consider on appeal:

In this case, the issue is whether the knee injury of February 10, 1994, sustained when Claimant passed out, was the result of an “idiopathic fall,” i.e., a fall occurring for a reason personal to claimant, for which the employer should not be liable.

[7] Under these circumstances, we were reluctant to explore an issue which no one had endeavored to develop for our review. We would, of course, appreciate the courtesy of receiving a factual and legal analysis of all issues intended for our consideration. [8] With regard to claimant’s entitlement to temporary total disability benefits, we note that he underwent a right knee arthroscopic debridement on April 26, 1994, performed by Dr. Mark Young. On May 13, 1994, Dr. Young informed a representative of respondent employer that:

Presently, the patient is doing well. He is doing quadriceps strengthening exercises and convalescing with his right knee.

[9] Ten days later, on May 23, 1994, Dr. Young recorded that claimant exhibited no “residual effusion and minimal medial joint line tenderness.” While Dr. Young went on to recommend that claimant continue his strengthening exercises, he also stated that “patient is to return to full work capacity.” [10] Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highway and Transp. Dep’t. v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period itself continues until the injured employee is as far restored as the permanent character of the injury will permit, and will end once the underlying condition has become stable and nothing further in the way of treatment will improve the condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id. Finally, the question of when the healing period has ended is factual determination that is to be made by the Commission. Id. [11] Claimant entered a post-surgical healing period on April 26, 1994, which we find extended until at least May 23, 1994, in light of Dr. Young’s foregoing reports. Also, because it does not appear that Dr. Young released claimant to return to work until that same date, we find that claimant remained totally incapacitated to earn wages until May 23, 1994. Finally, in reaching this conclusion, we note and have taken into account claimant’s credible testimony acknowledging that he remained off work for some thirty days following his surgery. [12] Because we find that claimant remained in his healing period and was totally incapacitated to earn wages from April 26, 1994, through May 23, 1994, we specifically find that claimant is entitled to an award of temporary total disability benefits from April 26, 1994, through May 23, 1994. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed as modified. [13] 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). [14] Because we have previously awarded claimant’s attorney an additional attorney’s fee for prevailing on this appeal (seeTony Sanders v. Cooper Tire Rubber Co., Full Workers’ Compensation Commission, Opinion Filed May 2, 1996 (Claim No. E410502)), we do not duplicate that award here. [15] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[16] Commissioner Wilson dissents.

[17] DISSENTING OPINION
[18] I respectfully dissent from the majority’s opinion finding that claimant is entitled to temporary total disability benefits. It is my opinion that the claimant failed to prove by a preponderance of the evidence that the incident on February 10, 1994 was a compensable exacerbation of a previous work-related knee injury that occurred on September 15, 1993. In my opinion the claimant failed to prove by a preponderance of the evidence that his fall on February 10, 1994 was anything other than an idiopathic fall. Because I find that the claimant’s February 10, 1994 injury was not compensable, I would therefore not allow the claimant to recover any temporary total disability benefits.

[19] In my opinion, the claimant had a new injury on February 10, 1994 which is not causally related in any way to his February 15, 1993 compensable knee injury. Moreover, it is my opinion that the claimant has failed to prove by a preponderance of the evidence that his fall on February 10, 1993 was anything other than idiopathic. Subsequent to the September 15, 1993 compensable injury and prior to the February 10, 1994 incident, the claimant was examined by both Dr. Craig Ditsch and Dr. Mark Young. The examinations by these physicians, which did include an MRI, failed to reveal any instability in the claimant’s knee. Although the claimant experienced swelling and tenderness, there was no inter-articular pathology prior to the February 10, 1994 incident. [20] Form AR-N signed by the claimant on the day of his injury simply describes the cause of the claimant’s injury as “past out”. In the AR-N completed by he claimant for his September 15, 1993 injury the claimant went into great detail when asked to briefly describe the cause of his injury. Such detail is lacking from the February 10, 1994 AR-N Form. The claimant merely described the cause of his right knee injury as passing out. Moreover, the February 29, 1994 medical record of Dr. David Fisher provides a history of the February 10th incident as follows: “Additionally, the patient relates that on 2-10-94 he passed out and fell to the ground striking his right knee.” In addition, the March 4, 1994 medical record of Dr. Ditsch states, “[H]e claims that on the 10th of February, about three weeks ago, he `passed out’ at work and fell on his right knee. This is the same knee that was bothering him before. Apparently, it was not his [blood sugar] causing him to pass out. Mr. Sanders says it was stress.” [21] The claimant made absolutely no mention of his knee buckling when relating the history of the February 10, 1995 injury on either the AR-N or during his visits with Dr. Fisher and Dr. Ditsch. Moreover, the testimony of Lionel Joe Thomas, the claimant’s supervisor, revealed that the claimant advised Mr. Thomas that he passed out due to his failure to take his medicine. Thus, the credible evidence of record clearly reveals that the claimant’s fall was idiopathic in nature and not related to his previous injury. In Nu-Way Laundry Cleaners v. Palmer, 12 Ark. App. 31, 670 S.W.2d 464 (1984), the Arkansas Court of Appeals held that an idiopathic fall is not compensable unless the employment circumstances significantly added to the risk of the fall from the idiopathic condition. Clearly, the claimant’s employment circumstances did not significantly add to the risk of the claimant passing out while at work. It was not until the claimant began seeking compensation for his knee condition subsequent to the February 10, 1994 that he began asserting that his right knee buckled. There is simply insufficient evidence in the record to support the claimant’s contention. Moreover, the claimant’s condition subsequent to the February 10, 1994 incident are significantly different than the claimant’s condition prior to that fall. It was not until after the February fall that the claimant required arthroscopic surgery. Both Dr. Fisher and Dr. Young noted medial meniscal pathology as a result of the February injury. (See Dr. Fisher’s notes dated March 29, 1994 and Dr. Young’s notes dated April 18, 1994). These new findings after February 10, 1994 cannot and have not been related in any way to the claimant’s compensable September 15, 1993 injury. For all these reasons, I find that the claimant has failed to prove by a preponderance of the evidence that the February 10, 1995 incident is compensable. Therefore, I respectfully dissent from the majority opinion. [22] MIKE WILSON, Commissioner