CLAIM NO. E413860
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 3, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by FLOYD M. THOMAS, JR., Attorney at Law, El Dorado, Arkansas.
Respondents represented by ROBERT D. TRAMMELL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on April 28, 1997, finding that claimant had sustained a compensable injury on January 21, 1993, and was entitled to an award of temporary total disability benefits from January 24, 1993, through March 3, 1993, as well as a 4% permanent anatomical impairment rating to the whole body. Respondents now appeal from that opinion and order.
[8] In the absence of any operable lesion, Dr. Johnson felt that continued conservative therapy would be claimant’s most appropriate treatment option (see Dr. Johnson’s letter of August 3, 1994). Subsequently, claimant came under the care of Dr. Jeffrey Dehaan, a Texarkana orthopedic surgeon. On November 23, 1994, Dr. Dehaan stated that:The cervical and upper thoracic vertebral bodies through T2 are of normal height, signal intensity, and alignment. The intervertebral discs are of normal height and signal intensity without evidence of disc bulge or disc herniation. The axial images reveal no evidence of central canal stenosis, lateral recess stenosis, or intervertebral foraminal compromise. The cervical cord is intrinsically sound. The craniocervical junction is normal. No soft tissue abnormalities are evident.
[9] After a course of physical therapy, Dr. Dehaan again examined claimant on January 19, 1995, and noted that she had not improved. Dr. Dehaan accordingly halted claimant’s physical therapy and recommended a functional capacity evaluation, since he felt it was “unlikely she’ll be able to return to the work force at her prior work level.” However, Dr. Dehaan was reluctant to assess claimant’s degree of permanent impairment:Mechanical cervical and lumbar pain. I think this lady has 2 heavy of a job description for her stature and bony spine structure. I don’t think there’s any formal surgical treatment or other treatment options that are going to help her. I think she needs to get into a back conditioning and rehab program, but given her distance from here it’s impractical. I think her best recourse would be to change job descriptions. This was touched on with her, we’re going to get her on an anti-inflammatory to see if this helps, and I’ll check her back here again in 6 weeks or so.
[10] Despite his original misgivings, Dr. Dehaan did ultimately assign (on April 26, 1996) a permanent impairment rating of 4% “based on 1-level cervical spine problems . . . I think you can close the case with that.” [11] Based on claimant’s credible testimony, we specifically find that she sustained an accidental neck injury arising out of and in the course of her employment on January 21, 1993. Claimant presented a consistent history of such an injury to each of the physicians mentioned herein, and though her co-worker could not recall whether claimant specifically complained of an injury on January 21, 1993, he at least corroborated her description of jumping off a table while at work. [12] Furthermore, while “objective findings” are not necessary to establish compensability in this claim (since claimant’s injury occurred prior to the effective date of Act 796 of 1993), we would point out that claimant’s loss of cervical curvature is an objective indication that her cervical muscles had gone into spasm, thus demonstrating the presence of a soft tissue injury to the cervical spine. See Rusty Risner v. J.C. PenneyConstr. Co., Full Workers’ Compensation Commission, Opinion Filed August 20, 1997 (Claim No. E513459) and Donna Lee Norvell v. J-MarExpress, Inc., Full Workers’ Compensation Commission, Opinion Filed May 24, 1996 (Claim No. E402198). [13] Finally, the mere fact that claimant may have possessed some degree of pre-existing disc disease in her cervical spine does not defeat the compensability of this claim, since an employer “takes the employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable.” See Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992). To the extent that claimant suffered from a pre-existing degenerative condition, we are persuaded that it represented a further objective finding which was aggravated by the incident of January 21, 1993 — a happening which was well within the realm of possibility according to Dr. Dehaan (again, we note that this injury occurred prior to the effective date of Act 796 of 1993, so that we are permitted to rely on medical opinions which speak of “possibilities”; see, for instance, Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992)). [14] We further specifically find that claimant is entitled to an award of temporary total disability benefits from January 25, 1993, through March 3, 1993. Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Arkansas State Highwayand Tranps. Dep’t. v. Breshears, 272 Ark. 244, 613 S.W.2d 392In direct answer to your questions, first of all, she does not have a rateable lesion in her anatomy. A degenerative disc is not a rateable injury when you’re talking about anatomy. A ruptured disc would be. Short of doing an impairment assessment I cannot give a rating based on her MRI scan. In answer to question B — Degenerative disease is a progressive age related, activity related problem. This would not have been a consequence of her jumping off a table. Jumping off the table could have aggravated the condition, but would not cause the condition.
(1981). The healing period itself continues until the injured employee is as far restored as the permanent character of the injury will permit, and will end once the underlying condition has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id. Finally, the question of when the healing period has ended is a factual determination that is to be made by the Commission. Id. [15] Claimant entered her healing period on the day of her injury (January 21, 1993), and received active treatment at Dr. Dehaan’s direction (in the form of medication and physical therapy) as late as November, 1994. After noting claimant’s failure to improve in January, 1995, Dr. Dehaan halted her physical therapy and recommended a functional capacity evaluation, which tends to suggest that claimant’s healing period had ended by that time. However, Dr. Giller permitted claimant to return to work after March 3, 1993, which claimant did until June, 1994. It thus cannot be said that claimant was totally incapacitated to earn wages subsequent to March 3, 1993 (and claimant has not appealed the Administrative Law Judge’s limitation of temporary total disability benefits to early March, 1993). We thus find that claimant is entitled to a period of temporary total disability benefits from January 25, 1993 (the date on which Dr. Griffin removed claimant from work), through March 3, 1993. [16] Finally, based on Dr. Dehaan’s assessment, as well as the objective presence of a permanent degenerative condition which has been aggravated by a work-related injury, we specifically find that claimant is entitled to a 4% permanent anatomical impairment rating to the whole body. We would also point out that Dr. Dehaan’s rating is compatible with that contemplated by the American Medical Associations’s Guides to the Evaluation ofPermanent Impairment, 4th Ed. Though we are not required to utilize the Guides in this claim (again, since this injury occurred prior to the effective date of Act 796 of 1993), we note that § II.B. of Table 75 suggests a 4% impairment to the cervical spine for a disc injury that is “unoperated on, stable, with medically documented injury, pain, and rigidity associated withmoderate to severe degenerative changes on structural tests; includes unoperated on herniated nucleus pulposus with or without radiculopathy.” (Emphasis added.) A footnote to this section further states that:
[17] Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she sustained a compensable injury on January 21, 1993, and is entitled to an award of temporary total disability benefits from January 25, 1993, through March 3, 1993, and to a 4% permanent anatomical impairment rating to the whole body. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed as modified. [18] All accrued benefits shall be paid in 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 (1987). [19] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (1987). [20] IT IS SO ORDERED.The words “with medically documented injury, pain, and rigidity” imply not only that an injury or illness has occurred, but also that the condition is stable, as shown by the evaluator’s history, examination, and other data, and that a permanent impairment exists, which is at least partly due to the condition being evaluated and not only due to pre-existing disease.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[21] Commissioner Wilson dissents.