Opinion
CLAIM NO. E509644
OPINION FILED SEPTEMBER 30, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by the HONORABLE GARY CARSON, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by an administrative law judge on October 11, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the credible evidence that he is entitled to additional temporary disability compensation after January 7, 1996, for his admittedly compensable ankle fracture sustained on June 26, 1995. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that he remained within his healing period until May 29, 1996, and is entitled to additional temporary disability compensation to that date, exclusive of any time during that period that the claimant worked. Therefore, we find that the administrative law judge's decision must be reversed. In addition, we find that the claimant proved by a preponderance of the evidence that he sustained a permanent anatomical impairment equal to 7% rated to the foot as a result of his compensable injury.
The claimant sustained an admittedly compensable ankle fracture on June 26, 1995. Shortly after his June 26, 1995, fall at work, the claimant underwent an open reduction with internal fixation on the right tibia (surgery on a tibia fracture to align bone fragments and to insert a device to hold the fragments in place). The claimant was then placed in a long leg cast for three weeks. After the cast was removed, the claimant was placed in a "cast boot" and physical therapy was initiated to promote active range-of-motion of the ankle.
Dr. Tomlinson, the claimant's treating physician, advised the claimant not to bear any weight on the ankle in July or August. By late September, the claimant was bearing approximately 50 pounds. According to Dr. Tomlinson's September 28, 1995 note, x-rays indicated excellent alignment and Dr. Tomlinson indicated that the claimant may bear weight on the ankle as tolerated. On November 28, 1995, Dr. Tomlinson performed a second surgery to remove the screws inserted in the July ORIF procedure.
A note dated December 11, 1995, indicates that the claimant had returned to non-weight bearing after surgery. Dr. Tomlinson advised the claimant to begin weight bearing to 30 pounds on the right leg and to perform calf stretching exercises 4 times per day. Dr. Tomlinson released the claimant to work on January 8, 1996, with a 30 pound restriction on lifting/carrying and with walking/standing limited to 4 hours per day. On February 7, 1996, Dr. Tomlinson removed the 4 hour walking/standing restriction, but kept the 30 pound lifting/carrying restriction.
The claimant attempted to return to light-duty construction for the respondent for a period in early 1996, and at one point tried to operate a forklift. However, operating a forklift's throttle caused a lot of pain in the claimant's right ankle, and Dr. Tomlinson restricted the claimant to no more than 2 hours of operating a forklift per day as of March 13, 1996. On March 29, 1996, Dr. Tomlinson again indicated that the claimant was not to stand/walk more than 4 hours per day.
Although Dr. Tomlinson initially indicated that x-rays taken March 13, 1996, indicated excellent alignment and good healing of the intra-articular fracture component, Dr. Tomlinson re-evaluated those same March 13, 1996, x-rays on April 24, 1996, and concluded that the x-rays showed a possible comminution (fragmentation/crushing) of the articular surface over the lateral ankle mortise. At that time, Dr. Tomlinson opined that the claimant cannot be on his leg for 4 hours, cannot climb ladders, and cannot carry more than 20 pounds. In addition, Dr. Tomlinson ordered a functional capacity evaluation and recommended vocational retraining for the claimant (whose work experience is apparently exclusively in construction).
Following a functional capacity evaluation performed May 1, 1996, Dr. Tomlinson indicated in a note dated May 29, 1996, that the claimant had recovered normal range-of-motion in his right ankle, but had sustained a slight joint space narrowing. Based on table 62 on page 83 of the AMA Guides (4th Ed.) (Arthritis Impairments Based on Roentgenographically Determined Cartilage Intervals), Dr. Tomlinson assigned the claimant a 7% impairment to the foot (or 5% impairment to the lower extremity) on May 29, 1996.
Since the claimant's injury occurred after July 1, 1993, the provisions of Act 796 of 1993 are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, 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 and Transportation Department 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) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of his 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.
In the present case, we find that the greater weight of the evidence indicates that the claimant remained within his healing period until May 29, 1996, when he received his permanent impairment rating from Dr. Tomlinson. In reaching that conclusion, we note that Dr. Tomlinson's records indicate that the claimant continued to experience a rather slow and difficult recovery even after Dr. Tomlinson released the claimant to light duty, as substantiated by the comminution indicated on the claimant's March 13, 1996, x-rays.
With regard to the claimant's ability to earn wages, Mr. Paschal testified that his construction business was slow when Dr. Tomlinson released the claimant to work with restrictions on January 8, 1996. In addition, Mr. Paschal testified that there is very little light-duty in construction. Moreover, Mr. Paschal testified that he and the claimant mutually agreed that the claimant would no longer attempt to work for Paschal Construction after March of 1996. Mr. Paschal testified that he put the claimant to work for the following number of hours for the following pay periods in early 1996:
Hours Pay Period
12 January 26, 1996
8 February 1, 1996
32.5 March 1, 1996
8 March 7, 1996
20 March 15, 1996
After the claimant stopped working for Paschal Construction, Mr. Paschal sent the claimant a $400 check on April 30, 1996, a $500 check in May of 1996, and a $300 check in June of 1996.
With regard to the nature of his payments to the claimant, Mr. Paschal testified:
When he was released to work on the 1st of January, I quit sending him the $270 a week, which I had started doing some time in September. At first I went to $293, and then I found out in December that the maximum was $270 a week. So somewhere in December or the first of January I realized I only had to pay him $270. But then he started coming back to work, and I thought, well, he'll be all right. He's going to work. And then I found out that I had to compensate him for the four hours that he couldn't work each day. And then he got worse instead of better, and couldn't even work after March. And so at that point in time, my funds were very, very, very low, and whenever I could come up with an extra few hundred dollars, I would send it to him.
With regard to the payments in April, May, and June, Mr. Paschal testified:
That was just — that was not for work, that was just I knew the guy needed money and I sent him some money. And I knew I owed him money, so I sent him money.
We find that the greater weight of the evidence also establishes that the claimant is entitled to additional temporary total disability compensation from January 8, 1996 to May 29, 1996, exclusive of any time during that period that the claimant worked. In this regard, the record indicates that the claimant's work experience is primarily in construction, and Mr. Paschal acknowledged that there is very little light-duty in construction. Moreover, the testimony of the claimant and Mr. Paschal considered in light of Dr. Tomlinson's records, indicate that Mr. Paschal had very little light-duty work for the claimant and that the claimant attempted to perform those duties with significant difficulties. Moreover, although Dr. Tomlinson had released the claimant to light duty in January, there is no evidence in the record indicating that the claimant had the capacity to earn wages in construction (or in any other line of work) as he was recovering from his ankle fracture, except to the extent that Mr. Paschal was able to provide minimal light-duty work. As noted in the administrative law judge's decision, the claimant is also entitled to be paid the difference between $234.64 and $270.00 during the period from December 23, 1995 through January 5, 1996. The respondents are entitled to a credit for an erroneous overpayment of $23.20 per week during the prior 10 week period, and the respondents are entitled to a credit against the benefits awarded herein for any wages paid between January and March of 1996, and for the compensation paid to the claimant during April, May and June of 1996.
Finally, we note that Dr. Tomlinson's impairment rating is supported by objective medical (x-ray) findings and is based on the AMA Guides. Consequently, we find that the claimant proved by a preponderance of the evidence that he has sustained a permanent anatomical impairment equal to 7% rated to the foot as a result of his compensable injury.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the preponderance of the evidence in the record establishes that the claimant is entitled to additional temporary total disability compensation from January 8, 1996, to May 29, 1996, exclusive of any time during that period that the claimant actually worked and with the adjustments and credits indicated herein. In addition, we find that the claimant proved by a preponderance of the evidence that he is entitled to compensation for a permanent anatomical impairment equal to 7% rated to the foot.
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). The claimant's attorney is entitled to a fee at the maximum rate for the benefits awarded herein. In addition, 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 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant is entitled to additional temporary total disability benefits through May 29, 1996. In my opinion, claimant is not entitled to any additional temporary total disability benefits subsequent to January 8, 1996, when he was released to return to work by his treating physician. Although restrictions were placed upon claimant at that time, claimant was not prohibited nor prevented from working so long as he stayed within the restrictions placed upon him by his physician. When claimant's attempt to return to work for respondent full-time failed, in part due to the nature of construction work slowing down in the winter time, claimant did not attempt to secure further employment within his restrictions. We have previously held that a claimant's failure to diligently attempt to secure further employment after being released to light-duty is a factor to consider in determining whether claimant is entitled to temporary total disability benefits while on light-duty or restricted work status.Tommy Davis v. Instrument Control Service, Inc., FC Opinion April 11, 1997 ( E510863). Accordingly, I would find that claimant has failed to prove entitlement to additional temporary total disability benefits after being released to return to light-duty on January 8, 1996, by his treating physician. Therefore, I must respectfully dissent from this finding.
However, I concur with the majority opinion finding that the payments made to claimant which were not for specific wages were in fact advance payment of compensation for which respondent is entitled to a credit.
MIKE WILSON, Commissioner