CLAIM NO. F007310
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 26, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MURREY L. GRIDER, Attorney at Law, Pocahontas, Arkansas.
Respondents represented by the HONORABLE RICHARD A. REID, Attorney at Law, Blytheville, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and modified in part.
OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an Administrative Law Judge’s opinion filed July 9, 2001. The Administrative Law Judge found that the claimant sustained a compensable injury on January 28, 1999. The Administrative Law Judge found that the claimant’s physical problems and need for medical treatment were directly and causally related to the January 28, 1999, injury. The Administrative Law Judge also found that “The claimant is entitled to temporary total disability benefits beginning December 6, 1999, and continuing through December 6, 2000, pursuant to Ark. Code Ann. § 11-9-505(a)(1) (Repl. 1996).”
After de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant sustained a compensable injury on January 28, 1999, for which the claimant is entitled to reasonable, necessary, and related medical treatment. The Full Commission vacates the Administrative Law Judge’s finding that the claimant is entitled to benefits pursuant to Ark. Code Ann. §11-9-505(a)(1). However, we find that the claimant proved by a preponderance of the evidence that she was entitled to temporary total disability compensation from February 1, 2000 until a date to be determined. The Full Commission therefore affirms, as modified, the opinion of the Administrative Law Judge.
I. HISTORY
Angela Marie Winters, age 26, became employed with Maverick Tube Corporation in September, 1994. Ms. Winters eventually became a “Hurco operator” for the respondent-employer, a position which duties included lifting a large pipe to chest level in order to tighten down clamps on a machine. The claimant testified that she sustained an accidental injury on January 28, 1999:
Q. Would you tell the Judge what happened that caused you to injure your back?
A. I was — we were running some ten inch DON pipe, and —
Q. Now, explain what that is.
A. It’s round ten-inch diameter pipe. . . . I picked up a sample, and Donnie Wages was to my left. She was at the door smoking a cigarette, and I went to pick it up there and I couldn’t pick it up. Something started burning, and it fell down on me, and she come running over there. I asked her to please help me, and we put it up in the machine, and I went on ahead and got it set and started cutting it. Well, I sat down on a bucket for maybe four or five minutes, and my left leg and back was just burning so bad. So, she told me that I had better go in and tell Kenny. So, I went and told Kenny White what had happened.
Q. Well, now who is Kenny White?
A. Kenny White was my supervisor at that time. He was the day shift supervisor.
Donnie Wages corroborated the claimant’s testimony. The claimant testified that her supervisor, Kenny White, directed her to continue working until the end of her shift. An Injury Report Form completed by Mr. White essentially corroborates the claimant’s testimony. In addition, the claimant signed a WCC Form N on January 28, 1999, writing, “I was lifting a 10″ x 535 sample which weighs about 100 pds. I went to put it in the clamps. I felt something pull in my back and dropped the sample.”
The claimant testified that she continued to work full duty for the respondents. However, “as that month progressed, I was — it just started hurting really bad.” Another co-worker, Steven Pearson, testified that he noticed the claimant “walking strange,” and that the claimant told him she had injured her back on the job. The claimant testified that the respondents sent her to Dr. Ronald D. Smith, who diagnosed “lumbosacral strain” on February 22, 1999. Dr. Smith was concerned about a possible abnormality in the claimant’s lumbar spine, so he referred her for an x-ray. However, the impression from an x-ray taken February 23, 1999 was “No significant abnormality.”
Dr. Smith assigned work restrictions. The claimant testified that she returned to work, “And I was told for any other heavy samples to get help, you know, get somebody to help me. But it’s kind of hard to pull somebody off their own job to help, you know, to help me do my job.” Danny Harris, the respondents’ loss control manager, testified that the claimant attempted to work on February 24, 1999 but was unable. Mr. Harris testified, “I told her just go on home until her next doctor’s examination and rest up, and by then she should be feeling fine, I hoped.”
Dr. Smith wrote on February 26, 1999, “She should be able to resume normal activity by Monday.” Mr. Harris testified that the claimant was released to return to unrestricted work as of March 1, 1999. Mr. Harris testified that he did not hear from the claimant for several months after that time. The claimant testified that she still missed additional days from work, not for her back, but “because of my stomach.” Dr. John S. Williams reported on December 3, 1999:
24 year old WF, comes in today with recurrent stomach troubles. . . . She has episodes of diarrhea and constipation. She has typical symptoms for IBS. . . . She’s missed a whole lot of work recently. She needs to be off for several weeks so she won’t get in anymore trouble at work. Give her a note to be off work for 3 weeks and see if we can get her better.
Dr. Williams assessed “Irritable bowel syndrome” and “Fibrocystic breast disease.” Dr. Williams subsequently kept the claimant off work until January 4, 2000. Dr. Williams assessed “Diarrhea” and “Abdominal pains — atypical” on January 24, 2000, and he took the claimant off work “for a few more days.” On February 1, 2000, Dr. Williams reported that the claimant was “having a lot of pain with lifting of the steel.”
Dr. Williams referred the claimant to a gastroenterologist, Dr. Raif Elsakr, who reported on February 8, 2000:
She is having diffuse abdominal pain right and left upper quadrant area with constipation. She works in a place where she has to carry and push heavy weights and her constipation has been going on for 4 months. She had CT scan of the abdomen and pelvis which was normal. Chest x-ray was normal. She is concerned about the constipation and abdominal pain.
The following findings resulted from an MRI taken February 17, 2000:
No previous studies are available for comparison. At the L5-S1 level, there is a small central HNP. There is disc desiccation of this level. There is also a small central spur at the inferior endplate of L5. The remainder of the lumbar disc levels appear negative for HNP or pronounced stenosis. There is noted to be benign and plate deformity of the L2 vertebral body related to Schmorl’s node formation. Images of the thoracic spine appear negative for HNP or pronounced stenosis. Thoracic spinal cord appears normal. Thoracic vertebral body height and alignment are maintained. Bone marrow simply appears normal.
IMPRESSION: Small central HNP L5-S1 level.
Dr. Williams kept the claimant off work after reviewing the diagnostic studies. The claimant was eventually referred for treatment with Dr. Allen S. Boyd and Dr. Lance J. Wright. Dr. Wright noted on April 26, 2000, “I have given her a letter for work saying that she should be put in a position with limited physical activity and limited lifting of only light weights. From what I could tell, it sounds like her employer may not have such a position opened.” The claimant indeed testified, “they had nothing for me.” The claimant further stated, “I found out by closure of my 401K that I was terminated August 9th of 2000 without any knowledge, without knowledge, and that was by closing out my 401K.”
Dr. Boyd reported on or about October 13, 2000 that the claimant “has never been allowed to return to work because of the restrictions we had on her.” Dr. Boyd arranged additional diagnostic testing, but the record does not indicate that this testing was carried out. Dr. Boyd opined that the claimant had not reached maximum medical improvement.
Ms. Winters claimed entitlement to worker’s compensation. The claimant contended that she sustained an accidental injury on January 28, 1999 as the result of a specific incident identifiable by time and place of occurrence. The claimant contended that her physical problems were directly and causally related to her injury, and that she was entitled to reasonable and necessary medical treatment. The claimant contended that she was entitled to temporary total disability compensation until such time as her healing period was determined to have ended.
The respondents contended that the claimant could not prove that she sustained a compensable injury on January 28, 1999. The respondents specifically asserted that there were no objective medical findings. The respondents contended that the claimant’s physical problems beginning in January, 2000 were unrelated to the alleged January 28, 1999, injury or to the claimant’s employment.
The parties agreed to litigate the following issues:
(1) Whether the claimant sustained a compensable injury on January 28, 1999; and
(2) Whether the claimant’s physical problems beginning January, 2000, are related to a work-related injury.
After a hearing before the Commission, the Administrative Law Judge found that the claimant sustained a compensable injury on January 28, 1999, for which the claimant was entitled to reasonable and necessary medical treatment. The Administrative Law Judge found that the claimant was entitled to temporary total disability compensation “beginning December 6, 1999, and continuing through December 6, 2000, pursuant to Ark. Code Ann. § 11-9-505(a)(1) (Repl. 1996).” The respondents appeal to the Full Commission.
II. ADJUDICATION A. Compensability
A claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2001). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that the accidental injury caused internal or external physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens TruckLines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
The Administrative Law Judge found in the present matter that the claimant sustained a compensable injury as the result of a specific incident occurring January 28, 1999. The Full Commission affirms this finding. It is within the Commission’s sole discretion to determine the credibility of each witness and the weight to be given her testimony.Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). The claimant, who we find to be credible, testified that she felt a “burning” in her back after lifting a large pipe at work on January 28, 1999. The preponderance of evidence indicates that the claimant informed her supervisor, and at least two co-workers corroborated the claimant’s onset of back pain. In addition, the claimant signed a WCC Form N on the date of injury, which document detailed the specific workplace incident.
Commissioner Yates’ Concurring and Dissenting Opinion would find that if the claimant sustained a compensable back injury in January 1999, then the injury had “resolved” by March 1999. It is true that the claimant was returned to work on March 1, 1999 after her compensable lumbar strain, but there is no medical opinion of record indicating that the claimant’s compensable injury had resolved. The record does show that lifting of steel at work aggravated the claimant’s low back condition. After the claimant returned to a physician for treatment of her low back pain, the impression from an MRI ordered by Dr. Williams was “small central HNP L5-S1 level.” The Concurring and Dissenting Opinion suggests that this objective medical finding resulted from “chronic constipation,” rather than the workplace injury, but the Full Commission finds that theConcurring and Dissenting Opinion’s assertion in this regard is based on speculation and conjecture. Speculation and conjecture can never be substituted for credible evidence. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980).
Therefore, the preponderance of evidence in this case clearly indicates that there was a specific work-related incident on January 28, 1999, that the claimant suffered physical injury to her body as a result of same, and that the claimant established the injury with objective medical findings. The opinion of the Administrative Law Judge is affirmed.
B. Temporary total disability
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 andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392
(1981). 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(12) (Supp. 2001). 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. The claimant is no longer entitled to receive temporary total disability compensation, regardless of her physical capabilities.
In the present matter, the Administrative Law Judge found that “The claimant is entitled to temporary total disability benefits beginning December 6, 1999, and continuing through December 6, 2000, pursuant to Ark. Code Ann. § 11-9-505(a)(1).” This statute provides that any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of such refusal, for a period not exceeding one (1) year. Nevertheless, the claimant did not contend that she was entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1), and the parties did not agree to litigate the issue. The Administrative Law Judge raised the § 11-9-505(a)(1) issue on his own motion. The Full Commission therefore vacates the Administrative Law Judge’s opinion in this regard.
The claimant contended that she was entitled to temporary total disability compensation “beginning on or about January, 2000, and continuing through the present and until such time as her healing period has ended.” We have determined supra that the claimant sustained a compensable injury to her low back on January 28, 1999. The record indicates that the claimant was taken off work in December, 1999 and part of January, 2000, but the claimant was taken off work because of stomach, bowel, and other symptoms not related to her low back injury.
The record shows that the claimant was unable to continue performing her work duties for the respondents, due to her low back condition, beginning February 1, 2000. Dr. Williams ordered additional diagnostic studies and kept the claimant off work. The claimant subsequently began treating with a neurological surgeon, Dr. Boyd, who also kept the claimant off work. Commissioner Yates’ Concurring and Dissenting Opinion
would find that the claimant was not totally incapacitated to earn wages after she began attending Mississippi County Community College in August, 2000. However, Dr. Boyd reported in October, 2000 that the claimant had not been allowed to return to work for the respondent-employer, due to the claimant’s medical restrictions resulting from her compensable injury. Further, Dr. Boyd opined in December, 2000 that the claimant had not reached maximum medical improvement. We are unable to determine from the record that the claimant’s attendance at college beginning in August, 2000 indicates that she was able to resume performing heavy manual labor for the respondents. The Full Commission therefore finds that the claimant remained within her healing period and totally incapacitated to earn wages from February 1, 2000 until a date yet to be determined.
III. CONCLUSION
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant sustained a compensable accidental injury on January 28, 1999, and that the medical treatment the claimant received was reasonable, necessary, and related to the compensable injury. The Full Commission vacates the Administrative Law Judge’s finding that the claimant was entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1). We find that the claimant proved by a preponderance of the evidence that she was entitled to temporary total disability compensation from February 1, 2000 until a date to be determined.
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 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
Commissioner Turners concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I concur with the principal opinion only to the extent that claimant is found to have proven by a preponderance of the evidence that she sustained a compensable injury and is entitled to benefits for temporary total disability from at least February 1, 2000 to a date yet to be determined.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates concurs and dissents.
CONCURRING AND DISSENTING OPINION
JOE YATES, Commissioner
I respectfully concur in part and dissent in part from the majority’s opinion. I concur with vacating the award of 11-9-505(a)(1) benefits. I dissent from the affirmation of the finding that the claimant suffered a compensable specific incident injury to her low back on January 28, 1999. I also dissent from the finding that the claimant is entitled to temporary total disability from February 1, 2000, through a date yet to be determined.
The medical records demonstrate that the claimant was first seen for back pain on January 22, 1999. X-rays of her spine taken that day revealed no significant abnormality. She was diagnosed with “lumboscracial (sic) strain, versus compression fracture of L2,” and was released to return to work with lifting restrictions. A follow-up visit on February 26, 1999, finds the claimant “unquestionably” better, and her doctor thought that “she should be able to resume normal activity by Monday.” The claimant was released and returned to work unrestricted in March and worked until December 2000, when she was taken off work because of problems with Irritable Bowel Syndrome characterized mainly by abdominal pain and constipation. The next record which could possibly be interpreted as suggesting back problems is dated February 1, 2000. This note discusses the claimant’s continuing bowel problems, then notes that, “She also has a lot of pain with lifting of the steel.” It is unspecified where she is experiencing this pain, but the other comments in the note only refer to her colon, stomach, and belly, and her continuing constipation; the note does not refer at all to her back. An MRI report dated February 17, 2000, contains the first specific mention of back pain since February 1999.
I would find that if the claimant sustained a compensable injury to her back in January 1999, it was resolved when she returned to work in March 1999. The small HNP detected by the MRI in February 2000 could have arose at any time in the interim year, possibly being caused by the claimant’s straining in response to her chronic constipation.
Alternatively, I would find that the claimant was not entitled to temporary total disability after August 2000, when she began attending college full-time, as this indicates to me that she is no longer incapacitated from earning wages as required by statute. Therefore, I respectfully concur in part and dissent in part from the majority opinion.
_______________________________ JOE YATES, Commissioner