CLAIM NO. E609024
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 30, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by JAMES M. LLEWELLYN, JR., Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondent appeals from a decision of the Administrative Law Judge filed on November 12, 1997 finding that claimant is entitled to temporary total disability benefits from May 7, 1997 to a date yet to be determined. [3] Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be, and hereby is, reversed. [4] At the hearing held on July 31, 1997, claimant contended that he sustained a compensable injury on July 1, 1996, is entitled to medical treatment, permanent partial disability benefits for a 10% physical impairment rating and temporary total disability benefits commencing on May 7, 1997, to a date yet to be determined. After initially controverting claimant’s claim, at the hearing respondent stipulated to the compensability of claimant’s low back injury and to claimant’s entitlement to a 10% permanent partial impairment rating as assessed on February 24, 1995. However, respondents contended that claimant was not entitled to additional temporary total disability benefits from May 7, 1997, through a date yet to be determined nor was he entitled to additional medical treatment. [5] 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 392 (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. 1997). 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). [6] The evidence reveals that claimant sustained his injury on or about July 1, 1996. As a result of claimant’s injury, he underwent surgery on September 6, 1996. Claimant was released to return to work in November of 1996 and was assigned a permanent impairment rating approximately 5 1/2 months after undergoing surgery. A permanent impairment rating cannot be assessed until the permanent nature of a claimant’s condition is known. The permanent nature of one’s condition is not known until one has reached a point of stability in the healing from which additional medical treatment will unlikely improve the condition to a greater extent. We cannot find based upon the evidence presented that claimant entered a new healing period in May of 1997. The evidence reflects that as of May 1997, claimant’s condition was virtually identical to his condition in February of 1997 when he was assigned a permanent impairment rating. Claimant’s treating physician declared claimant maximum medically improved in February of 1997. Simply because claimant continued to experience pain is not evidence that claimant has re-entered a second healing period. As previously noted, pain, in and of itself, is insufficient to extend one’s healing period once a period of stability has been reached. In our opinion, claimant’s claim that he was unable to work after May 7, 1997, goes towards a claim for any wage loss disability, not temporary total disability benefits since claimant’s compensable injury had reached a point of maximum medical improvement three months earlier. We simply cannot find that claimant has proven that he was within his healing period in May of 1997. [7] Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that he remained in his healing period, and totally incapacitated from earning wages after having reached maximum medical improvement in February of 1997. Therefore, we find that claimant has failed to prove by a preponderance of the evidence entitlement to temporary total disability benefits as awarded by the Administrative Law Judge. Consequently, we reverse the decision of the Administrative Law Judge. [8] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[9] Commissioner Humphrey dissents. [10] DISSENTING OPINION[11] I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to an additional period of temporary total disability benefits. [12] Claimant sustained a compensable injury on July 1, 1996, and eventually underwent an L4-5 disc excision on the right side on September 6, 1996 (performed by an osteopath, Dr. Robert G. Bebout). However, claimant’s difficulties did not subside, and on November 15, 1996, Dr. Richard A. Dotson noted a “definite loss of the lordotic curvature of the lumbar spine.” Subjectively, claimant still presented with “pain in his low back and into his legs, mostly the right side, with intermittent numbness and tingling, and the leg does give away with him on occasion, actually causing him to fall.” (Emphasis added.) Prior to his surgery, on August 19, 1996, claimant had mentioned similar complaints:
[13] A repeat MRI of November 19, 1996, suggested that claimant’s ongoing symptoms still had an objective basis:On his spine evaluation form, he complains of pain in the lower spine, radiating down both lower extremities, the right side worse than the left.
1. Degenerative disc disease L4-5 and L5-S1.
[14] Claimant’s pre-surgical MRI in July, 1996, had detected indications of an L4-5 herniation, “centrally and slightly eccentric toward the right.” (Emphasis added.) Despite the subsequent findings in November, Dr. Bebout pronounced claimant to be at MMI on February 7, 1997 (even though claimant still complained of “sticking and stabbing pains in the lower back . . .”). Nevertheless, Dr. Richard A. Dotson noted the continued presence of lumbar muscle spasms as late as May 7, 1997. Owing to claimant’s ongoing pain, Dr. Dotson removed him from work at that time, “until further notice.” [15] Temporary total disability is that period within the healing period in which an employee is totally incapacitated from earning wages. Arkansas State Highway and Transp. Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). There seems to be little question that claimant has been rendered incapacitated from earning wages as of May 7, 1997, in light of Dr. Dotson’s instructions for him to remain off work at that time. In my opinion, claimant clearly remains in his healing period as well. Not only has claimant continued to present with symptoms that are similar to his pre-operative complaints (e.g., low back pain with radiation into the extremities, particularly the right side), his post-operative MRI indicated at least some continued presence of the right-side L4-5 herniation originally found on July 22, 1996. It should thus not be surprising that claimant still suffers from right-side complaints. I would point out that his entire lumbar curvature reflects a state of considerable spasm given Dr. Dotson’s observations of November 15, 1996. [16] I would also point out that the date a physician rates claimant’s permanent anatomical impairment is not determinative but merely a factor to consider in deciding when the healing period ends. It is not uncommon in claims before us to have a physician assign such a rating prior to, or far after, the end of the healing period. This Commission must look to all the evidence when deciding this issue. [17] Given claimant’s consistent presentation of ongoing symptoms to his medical care providers, and the extensive objective indications of a continuing injury, I would find that claimant remained in his healing period as of and beyond May 7, 1997. Accordingly, I would find that claimant is entitled to a period of additional temporary total disability from May 7, 1997, until a date yet to be determined. Likewise, because claimant remains in his healing period, I would find that he is entitled to continued medical benefits as well. [18] For the foregoing reasons, I dissent. [19] PAT WEST HUMPHREY, Commissioner2. Findings compatible with laminectomy and prior discectomy, L4-5, right side.
3. Probable small disc protrusion or herniation, right side, L4-5.
4. Small right posteriorlateral herniated nucleus pulposus L5-S1. (Emphasis added.)