CLAIM NO. E806310
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 15, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JOHN L. KEARNEY, Attorney at Law, Pine Bluff, Arkansas.
Respondent represented by HONORABLE A. GENE WILLIAMS, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed and adopted in part; affirmed as modified in part.
OPINION AND ORDER
The claimant appeals and the respondents cross-appeal from a decision of the Administrative Law Judge filed September 11, 2001. The Administrative Law Judge entered the following findings of fact and conclusions of law:
The employee-employer-carrier relationship existed at all relevant times.
The temporary total disability rate is $256.00, and the permanent partial disability rate is $165.00.
The claimant sustained a compensable right upper extremity arm injury on May 5, 1998, below the elbow, and a compensable mental injury.
Appropriate medical benefits have been paid.
The 25% scheduled injury, permanent impairment rating, was accepted by the respondents and paid.
The preponderance of the evidence reflects that the claimant is not permanently and totally disabled.
The preponderance of the evidence reflects that the claimant is not entitled to any additional permanent impairment rating above the 25% rating assessed for his right upper extremity.
The preponderance of the evidence reflects that the claimant was within a healing period and totally incapacitated from earning wages, and is entitled to temporary total disability from May 27, 1988 through July 12, 1999, when he reached maximum medical improvement and was released by Dr. Rutherford.
The preponderance of the evidence reflects that the claimant is entitled to an attorney’s fee for controversion of the TTD benefits.
We have carefully conducted a de novo review of the entire record herein, and it is our opinion that the Administrative Law Judge’s Findings No. 1-7 are supported by a preponderance of the credible evidence, correctly apply the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that these findings of fact made by the Administrative Law Judge are correct, and they are, therefore, adopted by the Full Commission.
With regard to Finding No. 8, we note that the claimant sustained a scheduled injury. Consequently, the claimant is entitled to temporary disability during the period that he is within his healing period and has not returned to work. See Wheeler v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). In the present case, there is no dispute over when the claimant did or did not work during the relevant period. The critical issue is when the claimant’s healing period ended. We affirm the Administrative Law Judge’s finding that the claimant’s healing period ended on July 12, 1999, when he reached maximum medical improvement and was released by Dr. Rutherford.
With regard to Finding No. 9, the Commission received correspondence from the claimant’s attorney dated November 15, 2001, clarifying that the claimant was in fact paid temporary disability benefits for the period from May 28, 1999 through January 12, 1999. Consequently, we find that the respondents did not controvert temporary total disability benefits for this period. Therefore, we modify finding No. 9. The claimant’s attorney is entitled to an attorney’s fee for controversion of temporary disability benefits which should have been paid from January 12, 1999 through July 12, 1999.
Thus, we affirm and adopt the decision of the Administrative Law Judge, including all findings and conclusions except as specifically noted herein, as the decision of the Full Commission on appeal.
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).
For prevailing in part on this appeal before the Full Commission, the 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.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
_______________________________ SHELBY W. TURNER, Commissioner