STRANGE v. PIGGLY WIGGLY, 1997 AWCC 145

CLAIM NO. E516248

LEATRECIA STRANGE, EMPLOYEE, CLAIMANT v. PIGGLY WIGGLY, EMPLOYER, RESPONDENT and WAUSAU INSURANCE CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 19, 1997

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

Claimant represented by KENNETH A. HARPER, Attorney at Law, Monticello, Arkansas.

Respondent represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed June 26, 1996 finding that the claimant is entitled to additional temporary total disability benefits through January 9, 1996. Based upon ourde novo review of the entire record, we find that the claimant has failed to prove entitlement to temporary total disability benefits subsequent to November 20, 1995.

[3] The claimant sustained an admittedly compensable injury on October 21, 1995 when she tripped over a box of meat landing on her knees and falling on her bottom. Claimant reported the injury to her supervisor and to the store manager. However, claimant did not immediately seek medical attention. Claimant worked for one hour the following day before advising the manager that she was no longer physically capable of working. The injury occurred on a Saturday and claimant first sought medical attention from Dr. Scott on the following Monday. There are no medical records introduced from claimant’s visit with Dr. Scott. Claimant testified that Dr. Scott examined her, x-rayed her and sent her home. Claimant further testified that approximately two days later she returned to Dr. Scott with complaints of pain in her lower back and in her neck. At that time, Dr. Scott made an appointment for claimant to see Dr. John Lytle, an orthopaedic specialist. Dr. Lytle’s records were introduced into evidence and reveal that the claimant was seen in his office on October 30, 1995. At the time of her examination by Dr. Lytle, claimant complained of pain in her neck, at the base of her cervical spine and in her lumbar spine. Dr. Lytle’s examination reveals the following:

She is a normal appearing white female who is moderately obese. She has no obvious demeanor of pain at this time. She can toe and heel walk well with good control and strength, although she continues to complain that she cannot do that or that it causes pulling and pain in her lumbar spine. She has complete symmetric ROM of her neck with rotation to the R causing discomfort at the base of the cervical spine. Side bending of her lumbar spine to the L causes pain in the cervical region. She has complete symmetric ROM of both shoulder w/o limitations or increase of her discomfort. Forward bending is 90°, extension is 15°, side bending is 40°, and rotation is 60°. SLR and sciatic stretch tests are negative. DTRs at the knee, ankle, elbow, wrist, and hand are all normal, 2+ symmetric and reactive.

[4] Dr. Lytle diagnosed the claimant with cervical strain and lumbar strain and released her to return to limited duty at work with no lifting heavier than ten pounds, no twisting, turning, climbing, bending, or stooping. [5] Claimant’s testimony reveals that despite Dr. Lytle’s release to return to work, she did not return to work at that point. Claimant testified that she returned to Dr. Scott’s office and Dr. Scott kept her off work. Claimant further testified that she returned to Dr. Scott’s office two or three days later with complaints of pain in her neck and lower back and Dr. Scott referred her to Dr. P.B. Simpson at that time. Dr. Simpson’s medical records were introduced into evidence and reveal that claimant was seen in his office on November 13, 1995. After a complete examination, Dr. Simpson concluded:

I do not feel that she has any evidence of any radiculopathy or any nerve root compression syndrome. She certainly has no long track signs such as hyperreflexia in her upper and lower extremities. I feel that she just has cervical strain and things will resolve with time. I do not feel that anything else needs to be done at this point. I will keep her off work the rest of this week and let her return to her normal activities on Monday.

[6] Thus, according to Dr. Simpson, claimant was released to return to regular duties on Monday, November 20, 1995. Dr. Simpson prepared a release to return to work letter on November 13, 1995 which states:

Mrs. Strange was in my office today. She may return to her regular duties on Monday, November 20, 1995. I am releasing her from my care to return on an as needed basis. Mrs. Strange has reached full maximum medical benefit and has a 0% PPD to the body as a whole. If you have any questions, please contact my office.

[7] Claimant was asked during the hearing if she returned to work to which she responded “not at that time, no.” When asked if her employer had any work available for her to do, claimant responded, “yes, my regular job.” [8] Claimant’s testimony is inconsistent with the testimony of Benny Waller, her supervisor. Mr. Waller testified by way of deposition that claimant returned to work sometime in November or December and only worked half a day. Mr. Waller further testified that claimant was not required to do any lifting when she returned to work nor was she required to do anything strenuous. Mr. Waller specifically testified that he was willing to accommodate the claimant on whatever her medical restrictions were. According to Mr. Waller, claimant came in and worked for four hours, left for her lunch break, and telephoned stating that she would not return. [9] The medical records indicate that claimant returned to Dr. Simpson’s office on November 21, 1995 stating that she could not go back to work because she was still having pain across her neck. Dr. Simpson ordered an MRI on November 21, 1995 and held the claimant off work until the MRI results could be obtained. On December 5, 1995, claimant returned to Dr. Simpson’s office complaining of neck pain and back pain. Dr. Simpson noted that although Dr. Scott’s office notes show claimant complaining of back pain, claimant had never complained of back pain to Dr. Simpson until December 5, 1995. Dr. Simpson also noted:

It is interesting to me that she is almost able to touch her toes. Lateral bending and lateral turning are excellent. There is no paravertebral muscle spasms in her lumbar area. I know that Dr. Scott had apparently ordered lumbar spine films, but clinically I don’t see anything wrong with her lower back. Range of motion of her back is much more restricted and she is not having any radicular pain with movement of her neck. She still has tenderness all up and down her cervical spine area. Her cervical spine MRI was negative.

[10] However, due to the claimant’s continued complaints, Dr. Simpson order a functional capacity evaluation which was conducted on December 13, 1995. The functional capacity evaluation revealed that the test was “not a valid test.” Specifically, the functional capacity evaluation revealed:

It is felt that the patient’s pain ratings for her cervical region are not in proportion to her current level of functioning. It is noted that the patient have full cervical AROM and demonstrated no guarding of the cervical region with any portion of the of the FCE. The patient’s pre-test pain rating of 9 was totally inconsistent with her functional levels. It is also noted that all tests were stopped by the patient secondary to c/o increased pain. It is felt that the patient was self-limiting due to c/o pain.
It is also noted that the patient had very inconsistent grip bilaterally with positional testing at the 1-5 positions. Studies indicate that if maximal effort is put forth during this test, then there will be a linear curve present which there was not with this test. This indicates inconsistent effort. It is also noted that the patient was capable of performing dynamic lifting with 23 lbs. from floor level to 66″ high. This is inconsistent with the patient’s isometric test result of 20 lbs. Again, this indicates inconsistent effort.

[11] At claimant’s request an independent medical evaluation was performed by Dr. Bruce Safman. After examining the claimant, Dr. Safman stated:

In conclusion, her diagnosis is cervical and lumbosacral strain; and there is a lack of objective pathology. Her symptoms are purely subjective in nature.

[12] After her functional capacity evaluation, claimant returned to Dr. Simpson’s office on December 20, 1995. Dr. Simpson reviewed the functional capacity evaluation report which stated that it was not a valid test and concluded:

I think this points out that there is a lot of functional overlay associated with this problem. I really and truly find no objective findings and her continued complaints are somewhat vague.

***

I’m going to release her from my care and let her go back to work at any time.

[13] Ironically, in his release to return to work correspondence, Dr. Simpson placed a return to work date of December 26, 1995. In our opinion, this specific date of December 26, 1995 is simply an accommodation made by Dr. Simpson to the claimant. In his office note on December 20, 1995 he stated he would release the claimant to return to work “at any time.” However, he placed a specific date of December 26th in his release to return to work form. The release date just happens to be the day after Christmas. [14] The burden of proof rests upon the claimant to prove the compensability of her claim. Ringier America v.Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K.Processing Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224
(1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704 (c) (2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. CCavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowlerv. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [15] 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).J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). 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. [16] Respondent argues that objective medical evidence is lacking, thus claimant is not entitled to temporary total disability benefits. As we stated in Larry Graham v.Chamber Door Industries, Full Commission Opinion filed January 9, 1997 (E400258), we do not agree with this assertion. “Instead, we note that the critical question is whether a claimant’s healing period has `stabilized.’ While the presence of objective findings, or lack thereof, may be a factor in an analysis of this question, it is not determinative.” Id. [17] The record clearly reveals that as of November 20, 1995 the claimant was released by Dr. Simpson without restrictions. The record further reveals that claimant did return to work in either late November or early December but was placed on restricted duty by her employer. Although Benny Waller testified that claimant called in after only working four or five hours stating that she was physically unable to complete her work, there was no medical evidence indicating that the claimant was physically unable to work after November 20, 1995. Claimant was apparently released to return to work on at least three separate occasions, but, according to the claimant’s testimony, she simply could not work. Dr. Simpson kept taking claimant off work to order additional tests in order to accommodate the claimant’s continued complaints. However, all objective tests were unable to substantiate the claimant’s symptoms. The MRI was negative, x-rays were negative and the functional capacity evaluation revealed functional overlay. Dr. Simpson’s November 20, 1995 medical report reveals that the claimant had reached maximum medical improvement. Consequently, we find that the claimant was as far restored as the permanent character of her injury would permit as of November 20, 1995 when she reached maximum medical improvement. It is clear through Dr. Simpson’s and Dr. Safman’s medical records that claimant’s condition was stable and that further treatment would not improve her condition. Claimant’s only complaint was that of pain and has not been substantiated by any objective findings. It has long been held the persistence of pain in and of itself will not prolong one’s healing period so long as the underlying condition has stabilized.Mad Butcher v. Parker, supra. Obviously, as of November 20, 1995, claimant’s condition had stabilized. The only reason claimant was taken off work after that date was due to her unsubstantiated complaints of pain and Dr. Simpson’s willingness to accommodate claimant’s complaints with further testing. All testing confirmed Dr. Simpson’s findings and assessment that claimant had reached maximum medical benefit. [18] Finally, we must note that we find claimant to be a less than credible witness. Throughout claimant’s testimony she was hostile towards respondent’s attorney who did not appear to be provoking claimant. Claimant repeatedly responded to questions from respondent’s attorney by stating, “I don’t know.” When claimant admitted that she was drawing unemployment benefits, she was unable to provide the date or approximate time on when the benefits began. The following colloquy transpired at the hearing:

Q. And you’re currently looking for work?

A. No, I’m not.

Q. Aren’t you required, in order to draw unemployment benefits, to at least represent to the Employment Security Division that you’re looking for work?

A. Yes, I do.

Q. Do you make that representation to them, that you’re looking for work?
A. I do go and inquire about jobs, but I’m not necessarily looking for work.
Q. Does the Employment Security Division know that you’re not looking for work?
A. I do look. I don’t seek out, going out looking for lots of jobs. I have to do two contacts a week, and I do those two contacts a week.

[19] Furthermore, claimant’s testimony regarding returning to work is misleading. If one were to simply read the claimant’s testimony, one would be left with the impression that claimant was not provided with any opportunity to return to light duty work. However, Benny Waller’s testimony clearly shows that accommodations were made for claimant when she was released to return to work. Although it is unclear through Benny Waller’s testimony if claimant was placed on light duty when she, in fact, returned, Benny Waller testified that accommodations were made for claimant so that she would not have to lift, work the meat grinder or cutting machinery or simply do any heavy work. We find claimant’s failure to be forthright during her testimony troubling. In our opinion, claimant’s attempt to hide the truth in her testimony leads us to believe that claimant is trying to work the system and obtain something for nothing. [20] Accordingly, based upon our de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that her healing period extended beyond November 20, 1995 or that she is entitled to any additional temporary total disability benefits. Therefore, we reverse the decision of the Administrative Law Judge. [21] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[22] Commissioner Humphrey dissents.

[23] DISSENTING OPINION
[24] I must respectfully dissent from the majority opinion reversing the Administrative Law Judge’s award of additional temporary total disability benefits.

[25] In my opinion, Dr. P. B. Simpson’s note of December 20, 1995, is controlling:

Ms. Strange was in my office today. She may return to light duties lifting no more than 20 pounds at any time for 10 days. She may return to her regular duties on Tuesday, January 9, 1996. I am releasing her from my care to return on an as needed basis. Ms. Strange has reached full maximum medical benefits and has 0% PPD to the body as a whole. She may begin her light duties on Tuesday, December 26, 1995. If you have any questions, please contact my office.

[26] I would find that claimant is entitled to an award of continued temporary total disability benefits for at least the period of time encompassed by Dr. Simpson’s foregoing note. [27] In addition, I certainly cannot agree with the majority’s forceful denigration of claimant’s credibility and motives for seeking workers’ compensation benefits. [28] For the foregoing reasons, I respectfully dissent. [29] PAT WEST HUMPHREY, Commissioner