STEGALL v. LAND O’FROST, INC., 1995 AWCC 58

CLAIM NOS. D919260 E110217

BOBBY STEGALL, EMPLOYEE, CLAIMANT v. LAND O’FROST, INC., SELF INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 1, 1995

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

Claimant represented by the HONORABLE WILLIAM A. McLEAN, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE MARK A. PEOPLES, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on February 16, 1994. In that opinion and order, the administrative law judge found that the claimant was entitled to temporary total disability compensation from the date of his injury through May 24, 1991. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary disability compensation beyond November 9, 1990. Therefore, we find that the administrative law judge’s decision must be reversed.

[3] The claimant sustained admittedly compensable injuries on April 6, 1989 and December 6, 1989. He began working for the respondent as a meat cutter in September of 1987, and his duties required him to use his left hand repetitively to grasp the turkeys to be cut. At some point in 1989, he began to experience pain and swelling in his left wrist, and he subsequently began to also complain of problems with his arm, neck, shoulder, and back. He was first treated for these problems by Dr. Dale Asbury, a general practitioner, on December 8, 1989. Dr. Asbury caused x-rays to be taken, but these x-rays did not reveal any abnormality. Consequently, Dr. Asbury diagnosed tendonitis, and he treated the claimant conservatively with steroids and anti-inflammatories. [4] When the claimant continued to complain of problems, Dr. Asbury referred him to Dr. James R. McCoy, an orthopedic surgeon. Dr. McCoy first examined the claimant on January 4, 1990, and his clinical examination revealed negative results to all diagnostic tests. Based on these findings, Dr. McCoy reached the following conclusions:

My impression is that this patient has vague left upper extremity pain of uncertain etiology. More than likely, it’s just an overuse type of phenomenon.

[5] In addition, Dr. McCoy made the following comments:

. . . It may just be that he needs to seek a different type of employment. At the present time I don’t see anything specific that I have to offer the gentleman. . . .

[6] Nevertheless, Dr. McCoy saw the claimant again on February 8, 1990. Although he was still unable to determine the etiology of the claimant’s complaints, Dr. McCoy offered to perform a carpal tunnel release. This recommendation apparently was based solely on the continuation of the claimant’s subjective complaints. However, the claimant decided to think about it, and the plant nurse convinced him to obtain chiropractic treatment instead of surgery. However, the claimant again returned to Dr. McCoy on March 6, 1990. At that time, Dr. McCoy made the following comments:

My impression is that this patient may be malingering. I obviously can’t prove that since I’m not a psychiatrist, but his symptoms are so vague and nonspecific that I, in good conscience, cannot recommend surgical treatment for him.

[7] In addition, Dr. McCoy made the following comments:

I recommended to him that he consider either finding a different job or going back to work at his old job, and just try to do the best that he can. I don’t have anything further to add to his treatment, so I’ve discharged him and will see him back as needed. The only thing that he might consider doing of course, would be to get another opinion .

[8] The medical records indicate that the claimant came under the care of Dr. Ronald Williams, a neurologist, at some point. However, none of Dr. Williams’ office notes or records were submitted into evidence. Dr. Williams did order electrodiagnostic tests, and the report of those tests indicates that the results were within normal limits. Other medical reports also indicate that Dr. Williams ordered a cervical MRI, which showed only minimal degenerative changes. [9] Dr. Williams referred the claimant to Dr. Thomas Kovaleski, at the Arkansas Arthritis Clinic. Dr. Kovaleski first examined the claimant on July 10, 1990, and, Dr. Kovaleski’s clinical examination also failed to reveal any positive findings. Consequently, Dr. Williams reached the following conclusion:

I believe he has an overuse syndrome.

[10] In addition, Dr. Kovaleski made the following statements after his first examination of the claimant:

I do not think he will ever return to his former state of employment. I recommended he pursue his GED which he is thinking about doing.

[11] Dr. Kovaleski also saw the claimant on November 9, 1990. His records indicate that the claimant had a full range of motion of his cervical and lumbar spine and that the claimant was not taking any medication, although he still complained of some episodes of pain. Dr. Kovaleski released the claimant to return to work at this time, but the claimant indicated that he was unable to tolerate work. In May of 1990, Dr. Kovaleski ordered a work capacity assessment, and this assessment indicated that the claimant had the capacity to return to work with no restrictions. However, Dr. Kovaleski made the following comments regarding the claimant’s reaction to the recommendation that he return to work:

Mr. Stegall returns. He passed the functional capacity assessment with flying colors. I suspected that he would. They have made the recommendation that he can return to work, and I concur. I discussed this briefly with Mr. Stegall. However, he was not too interested in hearing it, and he hit the door after I made the recommendations that I think he can return to work.

[12] Dr. Kovaleski has opined that the claimant reached maximum healing as of June 1, 1991, but he also concedes that he treated the claimant primarily for pain during the entire course of his care of the claimant. [13] 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 Highwayand 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(6) (1987). 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, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his 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). [14] In the present claim, we find that the preponderance of the evidence establishes that the claimant’s healing period ended on November 9, 1990, when Dr. Kovaleski initially released him to return to work. Although the claimant continued to complain of pain after that time, Dr. Kovaleski offered no treatment directed toward improving the claimant’s condition. Instead, his treatment was directed primarily at managing the claimant’s complaints of pain. Consequently, we find that the claimant’s condition had become stable and that no further treatment would improve that condition by November 9, 1990. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary total disability compensation beyond that date. [15] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the preponderance of the evidence establishes that the claimant is entitled to temporary total disability compensation through November 9, 1990. Therefore, we find that the administrative law judge’s decision must be reversed. To the extent the respondent paid temporary disability compensation beyond that date, it is entitled to a credit against future liability. [16] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[17] Commissioner Humphrey dissents.