Opinion
CLAIM NO. E220848
OPINION FILED OCTOBER 23, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ROBERT MONTGOMERY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE KEVIN STATEN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals the decision of the Administrative Law Judge dated January 24, 1996. In that decision the Administrative Law Judge found the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability benefits. After carefully conducting a de novo review of the entire record in this matter, we affirm the decision of the Administrative Law Judge.
The claimant suffered an admittedly compensable injury on May 9, 1991. As a result of the injury, she underwent spinal fusion surgery at the C4-5 and C5-6 levels of her spine in January of 1993. Subsequent studies revealed the fusion at the C5-6 level failed to heal properly and she underwent a second fusion surgery at that site in July of 1993. Her post-operative course was unremarkable except for some continued complaints of pain and she was released to return to work with a 15% permanent partial disability rating on November 18, 1993. Her release called for her to engage in light-duty work for approximately six weeks and then return to full duty status.
The claimant works in an aluminum manufacturing plant where her regular duties as lead person include lifting and manipulating large pieces of aluminum. She testified that on occasion the pieces of aluminum she was required to manipulate could way as much as 100 lbs. It appears from her testimony that the average piece she was required to lift weighed only about 15 lbs. She further testified that she had to be able to lift these pieces of aluminum over her head in order to load them into the machines. After her release to return to work in November of 1993, the claimant returned to a light-duty position as called for by the above noted terms of her medical release. According to the claimant, she was given what was considered to be the easiest job in the factory. The claimant worked in this position through March of 1995 at which time she left her position. According to the claimant, she left her job because her condition worsened to the point that she was physically unable to perform her duties. The claimant alleges that she is entitled to additional temporary total disability benefits from March 1, 1995, when she left her position, until October 23, 1995.
Regarding the claimant's prognosis, Dr. Wilbur Giles has stated the following in November of 1993:
"I do anticipate that she will have occasional inflammatory episodes in the future which may necessitate the need for mild analgesic muscle relaxants and occasional possible physical therapy. . . Her EMG and nerve conduction studies are normal and do not show any evidence of nerve dysfunction or muscular dysfunction in the extremity.
The claimant, however, testified that she has experienced continuous discomfort and pain from the time of her release to return to work. In January of 1994 she was seen by Dr. Giles and reported that her pain had steadily increased since she had used a forklift at work to move some materials. Dr. Giles did x-rays at that time which were unremarkable and diagnosed an "inflammatory episode." The claimant was given an over-the-door traction device to use at home and released with no restrictions on her working ability. In June of 1994, the claimant again saw Dr. Giles who ordered a repeat MRI because of the claimant's continued complaints of pain. Dr. Giles noted that all x-rays and the MRI study revealed nothing out of the ordinary and diagnosed the claimant as suffering from "chronic pain syndrome." He stated that there was nothing more he could do for her from a surgical standpoint and referred her to a pain clinic.
In July of 1994, the claimant was seen by Dr. Jeffrey Ketcham at the Little Rock Pain Clinic. At that time, the claimant reported that her "pain [was] present about 50% of the time." After examining her and reviewing her records, Dr. Ketcham proposed treatment consisting of epidural steroid injections and a TENS unit. He also stated that "overall, I expect that she should probably do fairly well." Dr. Ketcham also noted that her MRI's and x-rays did not reveal any changes since the surgeries and other studies were normal. In September the claimant spent approximately 1 week undergoing a series of epidural steroid injections at the pain clinic and receiving some physical therapy.
In October of 1994 the claimant was again seen by Dr. Ketcham at the pain clinic. At that time it was noted that her neck pain was "somewhat better" and that her stretching exercises helped alleviate her pain. Dr. Ketcham also notes in his records that the claimant needed to continue on light-duty work for the time being. However, it is also reported that the claimant was upset and felt she was the victim of "subtle discrimination" at work by her bosses who wished her to return to full duty status. Finally, Dr. Ketcham stated that inactivity was the claimant's "worst enemy" and that she should continue to try and work.
The claimant was also seen in October and again in November by Dr. Marcia Hixson at the Hand and Microsurgery Center for treatment of suspected carpal tunnel syndrome in her right hand. Dr. Hixson notes that the claimant's pain in her right arm and hand are primarily related to her cervical injury, nerve damage and ulnar neuritis. She states that release of the carpal tunnel might help a little bit, but that the claimant is still going to have pain that the surgery cannot relieve. Dr. Hixson also notes the claimant is "having a hard time adjusting to the disability" and that she has "totally decompensated for [the] problem." However, Dr. Hixson also released the claimant to return to light-duty work.
In January of 1995 the claimant began seeing Dr. Thomas Ward at the Little Rock Physical Medicine Clinic. Dr. Ward's records indicate the claimant continued to complain of a great deal of pain in her right arm and neck area, but also that "after Dr. Ketcham did blocks the muscles were getting better." On March 1, 1995, the date the claimant ceased working, Dr. Ward notes the claimant "about decided she wants to quit work." Subsequently, Dr. Ward excused the claimant from work for one month. On April 3, 1995, Dr. Ward extended the work excuse for 30-60 days. He also placed the claimant on a rigid walking program. In May of 1995 the claimant again saw Dr. Ward who noted continued complaints of pain. Based on the claimant's continued complaints of pain, Dr. Ward referred the claimant for a functional capacity assessment by Georgia Abner, an occupational therapist.
The report from the functional capacity assessment done in May of 1995 states that:
"Ms. Shackleford did not pass a validity profile. There were inconsistencies in her grip strength testing of the right hand and during the manual muscle testing. She self limited her performance based on her perception of the symptoms which she indicated she was experiencing. At no time were signs of maximum physical exertion noted. Therefore, the results of the FCA should not be considered this client's maximum tolerances. More likely the results are the safe minimum level at which Ms. Shackleford could perform on a consistent basis.
Despite this report, in August of 1995, Dr. Ward noted in a letter that he had classified the claimant as temporarily totally disabled as of March 1, 1995, and that the disability would continue until at least October 23, 1995. He notes that the attempt to return the claimant to work was:
not satisfactory, either for Mrs. Shackleford's pain or for her ability to cope with the rest of her life in the duties that are required of her as homemaker and wife.
Finally, in October of 1995, the claimant was again seen by Dr. Hixson who continued her diagnosis of nerve damage in the right arm and related the pain primarily to the claimant's prior neck surgery. Also, Dr. Ward reported on a repeat EMG nerve conduction study which showed some possible nerve damage. Dr. Ward recommended vocational rehabilitation training and stated the claimant's abilities were limited, particularly in her upper extremities, by the acute onset of pain. He stated that he did not think that she would ever be able to perform tasks involving her upper extremities in the manner she had before due to the pain.
At the hearing, the claimant contended that she could not lift things over her head without a great deal of pain and that therefore it was impossible to adequately do her job. However, the respondents introduced photos and a surveillance report from December of 1994. The photos clearly showed the claimant holding her right arm, in which she held a sack of groceries she was lifting out of a shopping cart, straight up over her head. The surveillance report indicates that the claimant was able to lift these bags of groceries over her head and use her right arm with no apparent discomfort and in a smooth, fluid movement. It was also pointed out at the hearing that the claimant ceased working at approximately the same time as her permanent partial disability benefits ran out.
In order for a claimant to be entitled to temporary total disability benefits she must demonstrate that she was within her healing period for the time claimed and that she was suffering, due to her injury, an incapacity to earn wages. See, Arkansas State Highway and Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981) and J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The "healing period" is the period of time needed for the healing of an injury resulting from an accident which continues until the claimant's condition is as medically stable as the permanent nature of the injury will permit. See, Shepherd v. Van Ohlen Trucking, 49 Ark. App. 36, 895 S.W.2d 945 (1995). As noted, the claimant was released to return to work in November of 1993 and she did in fact return to her job at that time on a light duty basis. She continued to work for the respondent employer for over a year prior to leaving her position in March of 1995. However, the claimant and her witnesses testified that throughout 1994 as she attempted to work, her condition grew progressively worse until it necessitated her leaving her job. However, the medical reports belie this assertion. Multiple medical tests done during 1994 showed that her condition had not changed from the time of her release to return to work in November, 1993. Neither is there any mention of an incident which may have aggravated her condition or caused any sort of recurrence. At the time of the claimant's release in November 1993, it was noted that she would continue to have episodic periods of increased pain. The medical reports submitted indicate that the claimant's job was an irritant to her condition and probably contributed somewhat to her symptoms. However, there is no indication that from a medical standpoint her job duties worsened her condition. Additionally, the fact she worked for over a year indicates that she was not incapacitated from earning income. By all accounts, the healing period for her injury ended in November 1993. Clearly Dr. Giles knew what the claimant's job entailed at the time of the release. However, other than a brief period of light duty, Dr. Giles did not restrict her from doing her old job at that time. The problems she describes experiencing in 1994 are the natural consequences of her injury and permanent partial disability. They are not the result of another condition growing out of the initial injury and its resultant care. She is experienced, by all medical accounts, that which the doctors indicated she would experience as the result of her injury. There was no new injury in need of treatment or care which incapacitated her. In fact, the claimant testified that she was suffering about the same degree of pain at the time she quit working in March of 1995, as she was when she returned to work in November of 1993. In short, by her own testimony, her condition stayed the same during 1994 instead of getting progressively worse as she contends. Finally, the claimant also stated that not working was "helping her mentally" since she did not have to concern herself with getting fired. Clearly a referencing of the "subtle discrimination" and "job pressure" she stated she was exposed to during her time back on the job.
In addition to the above, we find that the claimant's credibility is highly suspect. As noted, the results of the functional capacity assessment were not valid due to the claimant's self-limiting and inconsistent performance. She refused to put forth the effort needed to properly evaluate her ability to perform. Additionally, there are the surveillance photos of the claimant lifting items over her head which directly contradicts her testimony that she is unable to do that. There is also the fact that she quit working and made this claim for additional temporary total disability benefits at the same time her permanent partial disability benefits ran out. Likewise, there are notes in her doctor's records which indicate that she felt her employer was giving her a hard time because of her injury. She also stated she felt they were discriminating against her and that she did not get along with her supervisors. Finally, while she denies having said it, there is the above noted statement in Dr. Ward's notes that she had "about decided to quit work" which was made on the day she did in fact leave her job.
We find that, based on the foregoing, the preponderance of the evidence indicates that the claimant's condition has remained essentially unchanged from the time she was released from care and given a permanent partial disability rating in November of 1993. Consequently, we find that the claimant has failed to establish by a preponderance of the evidence that she was within her healing period and incapacitated from earning wages from March 1, 1995, until October 23, 1995. Therefore, she has failed to establish by a preponderance of the evidence that she is entitled to additional temporary total disability benefits for that period. The decision of the Administrative Law Judge denying those benefits must be, and hereby is, affirmed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.