Opinion
CLAIM NO. E704960
OPINION FILED OCTOBER 28, 1999
Upon review before the FULL COMMISSION, in Little Rock, Pulaski County, Arkansas.
Claimant appeared pro se.
Respondents represented by the MICHAEL MAYTON, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part, vacated in part.
OPINION AND ORDER
[2] Claimant appeals an opinion and order filed by the Administrative Law Judge on January 11, 1999. In that opinion and order, the Administrative Law Judge determined that claimant failed to prove entitlement to additional benefits. The Administrative Law Judge also found that claimant's arthritis is not causally related to her compensable carpal tunnel syndrome. Based on our de novo review of the entire record, the Full Commission affirms in part and vacates in part the decision of the Administrative Law Judge.In his opinion, the Administrative Law Judge stated: "The preponderance of the evidence suggests that Claimant's arthritis in her hand, as described by Dr. Rutherford, is not causally related to her compensable carpal tunnel injury while working for the Respondent." At the hearing, counsel stated that respondents were accepting liability for all reasonably necessary treatment provided by Dr. Rutherford. Claimant sought temporary total disability benefits and rehabilitation benefits, and respondents controverted claimant's entitlement to these benefits. Claimant's entitlement to additional medical treatment for the arthritic condition diagnosed by Dr. Rutherford was never controverted based upon an absence of causation or any other grounds. Factual and legal issues must be raised at the hearing level. Carrold Boyette v. Potlatch Corp., Full Commission Opinion filed April 15, 1999 ( E219256). Thus, we must vacate the Administrative Law Judge's finding regarding causation for it was not raised at the hearing.
Claimant testified that she was diagnosed with carpal tunnel syndrome by a physician with St. Vincent Infirmary Medical Center's Emergency Department. Respondents accepted claimant's right carpal tunnel syndrome as compensable. She was treated by Dr. Michael Moore. Conservative treatment was unsuccessful, and Dr. Moore performed surgery. This was done in July of 1997. Claimant testified that following surgery, Dr. Moore prescribed a course of physical therapy. In a letter to respondent carrier dated October 16, 1997, Dr. Moore released claimant to return to regular duty, and opined that no basis existed for the assignment of an anatomical impairment rating.
Claimant testified that she remained symptomatic, and Dr. Moore made a referral to Dr. Reginald J. Rutherford. According to a letter dated December 18, 1997, Dr. Rutherford advised Dr. Moore that he was scheduling a triphasic bone scan. According to a clinic note authored by Dr. Rutherford on December 22, 1997, the bone scan showed ". . . moderate diffuse increased uptake, right wrist, of indeterminate etiology but compatible with inflammation or arthritis, which presumptively serves to account for [claimant's] current complaints." Based on the results of the test, Dr. Rutherford prescribed anti-inflammatory medication. Claimant testified that she remains under the care of Dr. Rutherford.
Claimant testified that she began receiving Unemployment Insurance benefits about one week after Dr. Moore released her to return to work. These benefits ceased on April 17, 1998. Before being released to return to work by Dr. Moore, claimant entered school so that she could pursue a Master's Degree in the field of secondary education. Claimant testified that she worked as a graduate assistant, a position for which she was issued biweekly checks totaling $198.00, and received a tuition discount of 50%. Claimant stated that her duties ceased when the semester ended. However, she testified that she has the option of resuming her work as a graduate assistant when the fall semester commences.
Claimant seeks temporary total disability benefits beginning October 16, 1997, until a date yet to be determined. Pursuant to Ark. Code Ann. § 11-9-506(a) (Repl. 1996), the receipt of unemployment insurance benefits serves as a bar to an award of temporary total disability benefits. The evidence establishes that claimant received unemployment benefits from October of 1997 until April of 1998. Accordingly, she is not entitled to temporary total disability benefits during this time period.
This does not end our inquiry, however, for claimant seeks an open-ended award of benefits. Entitlement to temporary total disability benefits requires claimant to satisfy a two-prong test: (1) claimant must be within her healing period; and (2) completely incapacitated from earning wages. Arkansas Highway Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for healing the injury, which continues until claimant is as far restored as the permanent nature of the injury will allow. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). In the event that the underlying condition has stabilized and there is an additional treatment that will improve claimant's condition, the healing period has ended. Id. This question is one of fact for the Commission to resolve. Temporary total disability is awarded when claimant is incapacitated because of injury to earn the wages she was receiving at the time of the injury. Johnson v. Rapid Die Molding, 46 Ark. App. 244, 878 S.W.2d 790 (1994).
Claimant testified that prior to her medical release by Dr. Moore on October 16, 1997, she returned to graduate school. She stated that she worked as a graduate assistant, and earned $198.00 biweekly. Moreover, claimant testified that she received a tuition discount totaling 50%. Under these facts, we find that claimant is unable to satisfy the Breshears test.
Claimant also seeks rehabilitation benefits. The applicable statutory provision is Ark. Code Ann. § 11-9-505 (Repl. 1996). This section provides that as a prerequisite to claimant's receipt of rehabilitation benefits, she must prove entitlement to permanent benefits. Dr. Moore declined to assign an impairment rating based on a lack of objective findings. Based on claimant's failure to satisfy the statute, we must conclude that an entitlement to rehabilitation benefits exists.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that claimant has failed to prove, by a preponderance of the evidence, that she is entitled to receive additional benefits. We further find that the portion of the Administrative Law Judge's opinion addressing the cause of claimant's hand condition must be vacated. We thus affirm in part and vacate in part the opinion of the Administrative Law Judge, and we hereby dismiss this claim.
IT IS SO ORDERED
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Commissioner Wilson concurs.