CLAIM NO. E910613
Before the Arkansas Workers’ Compensation Commission
ORDER FILED APRIL 5, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE STEPHEN T. ARNOLD, Attorney at Law, Texarkana, Arkansas.
Respondents represented by HONORABLE JEREMY SWEARINGEN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondent appeals and the claimant cross-appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on May 1, 1999, and awarding the claimant temporary total disability benefits for the period beginning September 5, 1999, and continuing through a date yet to be determined. In addition, the Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that the respondents were liable for a penalty for willful and intentional failure to pay benefits pursuant to Ark. Code Ann. § 11-9-802(e) (Repl. 1996). Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge.
1. Background
The claimant worked for the respondent-employer as a bartender. The claimant worked three nights per week, specifically, Thursday, Friday, and Saturday night. The claimant contends that on May 1, 1999, she was lifting a case of beer when she felt a pop in her back. The claimant testified that she reported the incident to her supervisor at the time, an unidentified individual named Darrell “Bucket”. The claimant stated that she took a pain pill, that she had in her purse from when she had an abscessed tooth, and she was able to continue to work the rest of the evening. She testified that on Sunday she laid on a heating pad. On Monday morning she made an appointment with Dr. McCormick, a chiropractor. Dr. McCormick saw the claimant on May 4, 1999, and gave the claimant an adjustment. However, the claimant’s symptoms did not improve and she sought treatment from St. Michael’s Minor Care Clinic. She was diagnosed with sciatica and given pain medication. The claimant was released to return to work.
The claimant continued to work until August 26, 1999, when she was terminated for excessive absenteeism and poor work attitude. However, during this time period, the claimant took a beach vacation with her boyfriend. During this vacation, the claimant went horseback riding on the beach. The claimant testified that the horse did not run, but merely walked.
After the claimant was terminated, she filed an application for unemployment benefits with the Arkansas Employment Security Division. In so doing, the claimant affirmed that she was ready, willing, and able to work. However, the claimant testified that she merely completed those documents in order to be eligible for Medicaid benefits. In order to receive Medicaid, the claimant stated that she must file for unemployment benefits. The claimant testified that she explained to the lady at the unemployment office that she was unable to work because of her back condition. Also, after she was terminated, the claimant worked part-time typing documents and doing spreadsheets for a company called Patterson Engineering.
On September 14, 1999, the claimant filed a workers’ compensation claim with the Commission. She stated on her AR-C that the alleged injury occurred on June 12, 1999.
On September 16, 1999, the claimant underwent an MRI at Wadley Regional Medical Center. The MRI revealed disc degeneration at the lower three levels of her spine and herniations at L3-4 and L4-5. The claimant was seen by Dr. Harold Weems. The claimant reported to Dr. Weems that she had injured herself on or about the end of July, 1999. The claimant was ultimately referred to Dr. Jeffrey DeHaan, who performed surgery on October 15, 1999.
2. Compensability
The claimant’s injury occurred after July 1, 1993, thus, this claim is governed by the provisions of Act 796 of 1993. To establish compensability of an injury, a claimant must satisfy all the requirements set forth in Ark. Code Ann. § 11-9-102 as amended by Act 796 of 1993. When a claimant alleges that she sustained an injury as a result of a specific incident, identifiable by time and place of occurrence, she must prove by a preponderance of the evidence that she sustained an accidental injury causing internal or external harm to the body which arose out of and in the course of her employment and which required medical services or resulted in disability or death. See Ark. Code Ann. § 11-9-102(5)(A)(i) and § 11-9-102(5)(E)(i) (Supp. 1999). She must also prove that the injury was caused by a specific incident and is identifiable by time and place of occurrence. See Ark. Code Ann. §11-9-102(5)(A)(i). Finally, Ark. Code Ann. § 11-9-102(5)(D) requires that a claimant must establish a compensable injury “by medical evidence supported by `objective findings’ as defined in §11-9-102(16).” If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury, she fails to establish the compensability of the claim, and compensation must be denied.
In the present case, the claimant has given several dates of injury. The AR-C filed by the claimant on September 14, 1999, gives an injury date of June 12, 1999. However, two weeks after filing her AR-C, the claimant reported to Dr. Weems on September 25, 1999, that she injured herself two months prior, which would put the injury date sometime around the end of July. The claimant ultimately confirmed her injury date of May 1, 1999, after she called to find out when her medical treatments were.
The record also reflects that the claimant took a beach vacation in May of 1999 with her boyfriend. At the time of the vacation, the claimant rode a horse. However, the claimant insisted that she thought at the time of her vacation she was only suffering from sciatica and that the horseback riding did not cause her any pain. The evidence also indicates the claimant continued to work through August 26, 1999, when she was terminated for excessive absenteeism and a bad attitude. Further, she testified that she had health insurance starting September 1st and was waiting to have her problem diagnosed until her health insurance kicked in.
Respondent also points to a minor back injury claimant sustained in 1995 while employed with Pizza Hut in Stuttgart. Claimant was off approximately three months and was released to return to work without any permanent disability or restrictions. Claimant testified that her physician at that time indicated that there was nothing wrong with her back. Further, this injury was characterized as a strain. There is no evidence that claimant had any herniated disc in her lumbar spine.
We find that the claimant has established by a preponderance of the evidence that her current back injury occurred on May 1, 1999, and not later as the respondents assert. In reaching that conclusion, we are persuaded by the fact that this issue turns on witness credibility, and by the fact that the Administrative Law Judge, who observed the demeanor of the witness, found the claimant’s explanation as to “what happened” to be credible. In addition, we are persuaded by the fact that Dr. DeHaan opined that claimant’s lower back difficulties are causally related to the accident in May, 1999. Based on this opinion, together with claimant’s credible testimony, we find that claimant has met her burden of proving by a preponderance of the evidence that she sustained a compensable injury on May 1, 1999.
3. Temporary Disability Benefits
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. 1999). 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 demonstrates that the claimant worked during the first week of September of 1999 for Patterson Engineering. The claimant testified that her sister went out and picked up work from Patterson Engineering and brought it to the claimant’s home for her to complete. However, the claimant’s deposition testimony is different from the account she testified to at the hearing. The claimant’s deposition states that she picked up the contracts herself to bring home to input on her computer and that the reason she could not continue her employment with Patterson Engineering was because “I couldn’t drive anymore.”
The record also reflects that the claimant applied for unemployment compensation benefits shortly after she was terminated by the respondent-employer. The claimant testified at the hearing that she had expectations of receiving such benefits. However, upon further questioning, the claimant then indicated that the only reason she applied for the benefits was so she could get Medicaid.
Dr. DeHaan testified in his deposition that as of February 24, 2000, the claimant could perform moderate duty job and could probably find work in the range of 25 to 30 pound lifting limit. Dr. DeHaan testified that the only reason he did not release the claimant to light duty was that he did not think she had a job. He was also under the mistaken impression that the claimant’s case was a workers’ compensation case.
Q: What about Claimant’s condition, or for what reasons did you not release her to light duty within the four to six week time period after her surgery?
A: . . .She didn’t have a job, first of all. If you don’t have a job, then there’s no reason to bring it up.
Q. Doctor, if this had been a workers’ comp [injury] in your opinion and in your understanding, if you were treating this as a workers’ comp related injury. Would you have given her a light duty release?
A: If they had light duty open, if she could do something, at six weeks I would let her go back at light duty.
We affirm the Administrative Law Judge’s award of benefits for temporary total disability from September 5, 1999 to an uncertain future date. Dr. DeHaan clearly testified that claimant’s healing period had not ended, and that he had not released claimant to work in any capacity.
Respondent points to claimant’s limited work for Patterson Engineering in late August and early September, 1999. However, claimant testified that she only worked a total of 30 hours and that she could no longer continue to perform these limited duties on her home computer because of her inability to drive to Patterson Engineering to pick up the work. Further, there is insufficient evidence that the claimant had any other work available to her within the restrictions indicated by Dr. DeHaan after surgery, or that any employer would have employed the claimant as of the time of the hearnig in this case. Therefore, under these circumstances, we find that the preponderance of the evidence in the record establishes that the claimant remained within her healing period and totally incapacitated from working during the entire period in question.
4. Average Weekly Wage
The wage records introduced by respondent-employer indicate that during her 18 weeks of employment prior to the alleged injury, the claimant made $2,043.40, including tips. If any extra tips were earned by the claimant, they were not reported. This equates to an average weekly wage of $114.00, with a compensation rate of $76.00 per week.
On the other hand, the claimant testified that she took home on average no less than $100.00 per night in wages and tips. She introduced the testimony of a former co-worker, Ms. Jody Taylor, to support her contentions. Jodi Taylor, a co-worker, testified that each worker earned $2.19 per hour plus tips and averaged approximately $100 per night in tips. Taylor added that the W-2 she received from this employer did not accurately portray her earnings. However, Ms. Taylor admitted that she did not personally know what wages the claimant made or reported. The only evidence that we have to support the finding that the claimant was making $293.00 per week for temporary total disability purposes is the claimant’s testimony. There are no records introduced other than those wage records introduced by the respondent.
Mike Butler testified that the bartenders earn $2.13 per hour, that the minimum wage at the time was $5.15, and that the employer declares the difference as tips. He added that the employee can declare more in tips, but some don’t because they want to avoid paying taxes.
Based on the above evidence, the Administrative Law Judge found claimant’s testimony to be credible. He arrived at his figures by multiplying $22/hour X 20 hours/week for an average weekly wage of $440, which computes to a total disability rate of $293. 75% of $293 yields a partial disability rate of $220. We find that a preponderance of the evidence supports this finding by the Administrative Law Judge.
In reaching this decision, we note that in Linda J. Brown v.Hay, Inc., d/b/a Travelaire Motel, Full Commission Opinion filed December 27, 1995 (E410404), the Commission discounted claimant’s testimony as to the amount of tips she averaged each day and relied on claimant’s W-2 forms, paycheck stubs, and “other evidence.” However, in the present case, claimant’s testimony is corroborated by Jodi Taylor. We have not located claimant’s W-2 forms in the record of the present case; there is no evidence as to how much claimant actually claimed in tips for tax purposes, and clearly the alternative wage records offered into evidence by the respondents in this case do not accurately reflect tips actually received. We accord no weight to the wage records offered by the respondents in this case.
5. Penalty.
We also affirm the denial of a penalty per Ark. Code. Ann. § 11-9-802(e). It is clear that the respondents conduct in this case does not form the basis for a statutory penalty. The respondents controverted the claim which they are legally entitled to do. Controversion was well within the respondent’s legal rights under the Arkansas Workers’ Compensation laws.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, the respondents are hereby ordered and directed to pay the claimant temporary total disability benefits at the weekly compensation benefit rate of $293.00 for the period covering September 5, 1999, to the end of her healing period, or until such time as she is released to return to work, as a result of the claimant’s May 1, 1999, compensable injury. Said sums accrued shall be paid in lump sum without discount. The respondents are further ordered and directed to pay all reasonable related medical, hospital, nursing, and other apparatus expenses, to include medical related travel, growing out of the claimant’s compensable injury of May 1, 1999, to include satisfying a lien of $8,929.54 by the Arkansas Department of Human Services in this claim.
Maximum attorney fees are herein awarded to the claimant’s attorney, the Honorable Stephen T. Arnold, on the controverted portion of this Award, pursuant to Ark. Code Ann. § 11-9-715, and, in accordance with Holiday Inn-West v. Coleman, 31 Ark. App. 224, 792 S.W.2d 345 (1990).
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).
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) for prevailing in part on appeal.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson concurs in part and dissents in part.
MIKE WILSON, Commissioner
I respectfully concur in part and dissent in part from the majority opinion. Specifically, I dissent from the finding that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on May 1, 1999, and awarding the claimant temporary total disability benefits for the period beginning September 5, 1999, and continuing through a date yet to be determined. I also dissent from the majority’s finding on the claimant’s average weekly wage. However, I concur in the finding that the claimant failed to prove by a preponderance of the evidence that the respondents were liable for a penalty for willful and intentional failure to pay benefits pursuant to Ark. Code Ann. § 11-9-802(e) (Repl. 1996).
In my opinion, the record fails to support a finding that the claimant sustained a compensable injury on May 1, 1999. First of all, the claimant has given several dates of injury. The AR-C filed by the claimant on September 14, 1999, gives an injury date of June 12, 1999. However, two weeks after filing her AR-C, the claimant reported to Dr. Weems on September 25, 1999, that she injured herself two months prior, which would put the injury date sometime around the end of July. The claimant ultimately decided on an injury date of May 1, 1999, after she called to find out when her medical treatments were. The claimant’s inability to pinpoint a date on which the actual injury occurred until she needed to in order to get her benefits paid for is suspect at best.
The record also reflects that the claimant took a beach vacation in May of 1999 with her boyfriend. At the time of the vacation, the claimant rode a horse. However, the claimant insisted that she thought at the time of her vacation she was only suffering from sciatica and that the horseback riding did not cause her any pain. It is hard for me to fathom someone with two herniated discs going horseback riding without pain, regardless if the horse merely walked. The evidence also indicates the claimant continued to work through August 26, 1999, when she was terminated for excessive absenteeism and a bad attitude. Further, she testified that she had health insurance starting September 1st and was waiting to have her problem diagnosed until her health insurance kicked in. If the claimant had a workers’ compensation injury, why did she want to wait until she had health insurance to do something about it? In order for me to find that the claimant sustained a compensable injury in the course and scope of her employment on May 1, 1999, would require me to resort to conjecture and speculation. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. ofCorrection 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).
Even if I were to find that the claimant sustained a compensable injury on May 1, 1999, which I do not find, I would find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to temporary total disability benefits from September 5, 1999, to a date yet to be determined. 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. 1999). 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 demonstrates that the claimant worked during the first week of September of 1999 for Patterson Engineering. The claimant testified that her sister went out and picked up work from Patterson Engineering and brought it to the claimant’s home for her to complete. However, the claimant’s deposition testimony is different from the account she testified to at the hearing. The claimant’s deposition states that she picked up the contracts herself to bring home to input on her computer and that the reason she could not continue her employment with Patterson Engineering was because “I couldn’t drive anymore.” In my opinion, this calls into question the claimant’s credibility.
In addition, the record reflects that the claimant applied for unemployment compensation benefits shortly after she was terminated by the respondent-employer. The claimant testified at the hearing that she had expectations of receiving such benefits. However, upon further questioning, the claimant then indicated that the only reason she applied for the benefits was so she could get Medicaid.
After surgery, the evidence indicates that the claimant had reached the end of her healing period by February 24, 2000. Dr. DeHaan testified in his deposition that as of February 24, 2000, the claimant could perform moderate duty job and could probably find work in the range of 25 to 30 pound lifting limit. Dr. DeHaan testified that the only reason he did not release the claimant to light duty was that he did not think she had a job. He was also under the mistaken impression that the claimant’s case was a workers’ compensation case.
Q: What about Claimant’s condition, or for what reasons did you not release her to light duty within the four to six week time period after her surgery?
A: . . .She didn’t have a job, first of all. If you don’t have a job, then there’s no reason to bring it up.
Q. Doctor, if this had been a workers’ comp [injury] in your opinion and in your understanding, if you were treating this as a workers’ comp related injury. Would you have given her a light duty release?
A: If they had light duty open, if she could do something, at six weeks I would let her go back at light duty.
The record clearly shows that the claimant should have been released to moderate duty employment at least as of February 24, 2000. Therefore, I find that the claimant is not entitled to any temporary total disability benefits after February 24, 2000.
I also find that the claimant’s average weekly wage as calculated by the majority is incorrect. The wage records introduced by respondent-employer indicate that during her 18 weeks of employment prior to the alleged injury, the claimant made $2,043.40, including tips. If any extra tips were earned by the claimant, they were not reported. This equates to an average weekly wage of $114.00, with a compensation rate of $76.00 per week.
The claimant testified that she took home on average no less than $100.00 per night in wages and tips. She introduced the testimony of a former co-worker, Ms. Jody Taylor, to support her contentions. However, Ms. Taylor admitted that she did not personally know what wages the claimant made or reported. The only evidence that we have to support the finding that the claimant was making $293.00 per week for temporary total disability purposes is the claimant’s own self-serving testimony. There are no records introduced other than those records introduced by the respondent that were authenticated wage records. Accordingly, I find that the claimant’s average weekly wage was $114.00, thereby entitling her to a temporary total disability rate of $76.00 per week.
Therefore, for all the reasons set forth herein, I respectfully concur in part and dissent in part from the majority opinion.
_______________________________ MIKE WILSON, Commissioner
Commissioner Turner concurs in part and dissents in part.
SHELBY W. TURNER, Commissioner
I concur with the principal opinion’s findings that claimant proved by a preponderance of the evidence that she sustained a compensable injury on May 1, 1999; that claimant is entitled to benefits for temporary total disability from September 5, 1999 to an uncertain future date; and that claimant’s weekly benefit rate for total disability is $293.00. However, I must respectfully dissent from the failure to impose a penalty pursuant to Ark. Code Ann. § 11-9-802(e) (Repl. 1996).
______________________________ SHELBY W. TURNER, Commissioner