CLAIM NO. F011017
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 22, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE CONSTANCE CLARK, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appeals a July 17, 2001 opinion of the Administrative Law Judge finding that he is not entitled to additional benefits for temporary total disability.
On September 6, 2000, claimant sustained an admittedly compensable back injury while unloading a desk. Respondent paid benefits for temporary total disability from September 8 to October 12, 2000. Relying on a report by Dr. Luke Knox indicating that claimant needed surgery and was unable to work, respondent began paying additional benefits for temporary total disability on May 6, 2001. Thus, the issue on appeal is whether claimant is entitled to benefits for temporary total disability from October 13, 2000 to May 5, 2001.
Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Swift-Eckrich, Inc. v.Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). Temporary total disability for unscheduled injuries is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark.State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v.Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). After our de novo review of the entire record, we find that claimant has met his burden of proof and, accordingly, reverse the opinion of the Administrative Law Judge.
Respondent accepted claimant’s September 6, 2000 back injury and began paying appropriate benefits. Claimant first presented to Dr. David L. Beeman on September 7, 2000. Dr. Beeman placed claimant on light duty for two weeks. On September 21, 2000, he extended claimant’s light-duty status for an additional two weeks. On October 9, 2000, Dr. Beeman again opined that claimant could return to light-duty work for a period of two weeks. It appears that respondent was either unable or unwilling to accommodate claimant’s work restrictions, because the parties stipulated that temporary total disability benefits were paid through October 12, 2000.
Dr. Beeman ordered an MRI scan, which was performed on October 11, 2000. The MRI revealed abnormalities (herniated discs) at L4-5 and L5-S1. Thereafter, Dr. Beeman referred claimant to Dr. Raben, who first examined claimant on October 31, 2000. Dr. Raben noted that claimant “went back to Mosers on workmen compensation restrictions and was terminated.” Dr. Raben ordered epidural steroid injections and was considering surgical intervention as a viable option. In a report dated November 28, 2000, Dr. Raben noted that claimant had not been working and plans were discussed to proceed with surgery.
Thereafter, respondent apparently scheduled an evaluation with Dr. David A. Davis, a neurologist. Dr. Davis saw claimant on January 26, 2001 and after noting objective findings of abnormalities at L4-5 and L5-S1, reported that “[g]iven the duration of his symptoms, it would not be unreasonable to proceed with laminectomy for [sic] diskectomy.” However, Dr. Davis recommended a follow-up MRI scan.
Pursuant to another referral by respondent, claimant was examined by Dr. Luke Knox, a neurosurgeon, on April 4, 2001. The follow-up MRI scan was performed. Since there was a difference of opinion concerning which of the two herniations was the more significant, Dr. Knox recommended a discogram in an effort to isolate the most likely culprit of claimant’s difficulties. After reviewing the MRI scan, Dr. Knox scheduled surgery. On Commission Form AR-3, dated May 6, 2001, Dr. Knox indicated that claimant was unable to return to work. Respondent reinstated benefits for temporary total disability as of May 6, 2001.
There is really no serious dispute about whether claimant remained within his healing period during the time in question. His entitlement to additional benefits for temporary total disability appearS to turn on whether he was totally incapacitated from earning the same or any part of the wages he was receiving at the time of the compensable injury. Ark. Code Ann. § 11-9-102(8) (Repl. 2002); Breshears, supra.
As noted above, claimant was initially released to return to work on light duty. Instead of allowing claimant to return to work, respondent paid temporary total disability benefits through October 12, 2000. Respondent suspended the payment of benefits effective October 12, 2000 because of respondent’s alleged inability to ascertain claimant’s work status. Apparently, respondent was contacted about claimant by a prospective employer in Oklahoma. Respondent indicated that several attempts to contact claimant were unsuccessful. Claimant testified at the hearing that he was not aware of any problems respondent may have had in contacting him. Claimant specifically denied that he had worked anywhere or had even applied for a job in Oklahoma. There is certainly insufficient evidence in the record that claimant has worked in any capacity since the injury.
Respondent points out that the physicians who treated claimant failed to address his capacity to work until Dr. Knox did so in May 2001. However, Dr. Raben may have deemed this unnecessary since claimant informed him of the employment separation. In any event, there is insufficient evidence that claimant was capable of returning to full duty. In fact, Dr. Knox excused claimant from all work. Even if some of the physicians may have believed claimant could perform light-duty work, respondent was either unable or unwilling to allow claimant to return to work with restrictions. Moreover, there is insufficient evidence that claimant had the ability to earn the same or any part of the wages he was receiving at the time of the compensable injury. Breshears, supra. Accordingly, we find that claimant has proven by a preponderance of the evidence that he suffered a total incapacity to earn wages during the relevant period of time.
Finally, we find that respondent has controverted claimant’s entitlement to additional benefits for temporary total disability from October 13, 2000 to May 5, 2001 and that claimant’s attorney is entitled to the maximum statutory attorney’s fees based thereon.
For the foregoing reasons, we reverse the opinion of the Administrative Law Judge. We find that claimant has proven by a preponderance of the evidence that he is entitled to additional benefits for temporary total disability from October 13, 2000 to May 5, 2001. Claimant’s attorney is entitled to the maximum statutory attorney’s fees based on benefits awarded herein, one-half of which is to be paid by claimant and one-half by respondent in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996); Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990) and Chamness v. Superior Industries, Full Commission Opinion filed March 4, 1992 (E019760). 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. 2002). 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.
______________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
JOE E. YATES, Commissioner
I concur in the principal opinion’s findings. I write separately in response to the dissent’s observation that (1) there are no medical opinions placing the claimant off work during the period in question between October of 2000 and May of 2001, and (2) the last relevant report of Dr. Beeman in October of 2000 released the claimant to light duty, if light duty was available.
The evidence which most persuades me that the claimant was incapacitated from earning wages during the disputed period from October 2000 through May 2001 is the following:
(1) The Commission Form AR-3 prepared by Dr. Knox on May 6, 2001 indicating that the claimant was not capable of returning to work at that time;(2) Dr. Knox’s April 24, 2001 report and April 10, 2001 report indicating that he has reviewed the claimant’s October 11, 2000 MRI, and Dr. Knox’s June 4, 2001 report indicating that the claimant has now undergone a discogram and post-discogram CT and confirming that the claimant is a surgical candidate; (3) Dr. Raben’s October 31, 2000 assessment that the claimant had low back pain, with a probable L4 and/or L5 radiculopathy with herniated nucleus pulposus at L4-5 greater than L5-S1 and his plan proposing epidural steroid injections and consideration of diskectomy or fusion, and (4) Dr. Raben’s November 28, 2000 report indicating that he would set the claimant up for a hemilaminotomy/diskectomy at the L4/5 inner space.
These reports and the claimant’s two MRIs all indicate to me that the claimant had the abnormality causing him to be a surgical candidate during the entire period in question, and that he has not undergone any type of change of physical condition after the respondents cut off TTD in early October 2000 when they lost contact with the claimant apparently due to an incorrect mailing address. Moreover, if the nature and extent of the claimant’s injury rendered him incapacitated to earn as of the date of Dr. Knox’s Form AR-3 on May 6, 2001, then it would appear to me under these circumstances that the claimant was also rendered incapacitated to earn during all relevant periods prior to that date, since the claimant has only sustained one injury of surgical significance, and that same injury was obviously present in October of 2000.
As the dissent essentially notes, one potential problem with the claimant’s request for additional TTD is the fact that Dr. Raben did not produce any off-work status reports between October 9, 2000 and May 6, 2001 advising whether the claimant was or was not incapacitated from work. As the principal opinion points out, this is consistent with the fact that Dr. Raben took a history from the claimant that he had already been terminated by the respondents when Dr. Raben first saw the claimant in October of 2000, and therefore it is likely that Dr. Raben saw no need to make any comment, one way or the other, regarding return to work, since the claimant was no longer employed by the time that Dr. Raben saw the claimant. After reviewing the medical evidence, particularly the claimant’s MRI tests and the diagnoses of his various physicians, and considering the fact that the respondents concede that the claimant is entitled to additional TTD beginning on the date that Dr. Knox filled out the Form AR-3 on May 6, 2001, I concur that a preponderance of the credible evidence (i.e., the medical evidence) indicates that the claimant was also TTD during all relevant periods between October of 2000 (when the respondents cut off TTD) and May of 2001 (when Dr. Knox filled out the Form AR-3 that started TTD payments back up).
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Yates dissents.
DISSENTING OPINION
COMMISSIONER
I respectfully dissent from the majority’s opinion finding that the claimant was entitled to temporary total disability benefits from October 13, 2000, to May 5, 2001. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
In order to be entitled to temporary total disability benefits, the claimant has the burden of proving by a preponderance of the evidence that he remained within his healing period and that he suffered a total incapacity to earn wages. I concede that the claimant remained within his healing period. However, the claimant has failed to prove by a preponderance of the evidence that he suffered a total incapacity to earn wages between October 13, 2000, and May 5, 2001. The claimant was released to return to work by Dr. Beeman on light duty as of October 9, 2000. There is insufficient evidence in the record indicating that the claimant suffered an incapacity to earn wages prior to the date he was taken off work by Dr. Knox on May 5, 2001.
The evidence shows that Dr. Beeman completed the Commission’s AR-3 form on September 6, September 26, and again on October 9, 2000. On each of these medical reports, Dr. Beeman indicated that the claimant could return to work performing light duty. Further, Dr. Raben’s medical reports reference the fact that the claimant is not working and mentioned a termination. However, it should be noted that there was no testimony offered at the hearing regarding whether the claimant was terminated by the respondent. The medical reports of Dr. Raben do not indicate that he was of the opinion that the claimant was totally incapacitated from working during this period of time. Further, Dr. Beeman has indicated that the claimant was capable of working light duty. The claimant was also evaluated by Dr. David Davis on January 26, 2001. It is of note that Dr. Davis did not address the claimant’s ability to work in either a consultation report or letter of that date. Simply put, I find that the claimant has failed to prove by a preponderance of the evidence that he suffered a total incapacity to earn wages between the period October 13, 2000, and May 5, 2001. Accordingly, I must dissent from the majority’s opinion awarding temporary total disability benefits for this period.
_______________________________ JOE E. YATES, Commissioner