Opinion
CLAIM NO. E210541
OPINION FILED JULY 10, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD J. ADAMS, Attorney at Law, Harrison, Arkansas.
Respondents represented by the HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on September 26, 1994. In that opinion and order, the administrative law judge found that the claimant's entitlement to temporary total disability compensation was limited to the 26 weeks of compensation provided for in Ark. Code Ann. § 11-9-523 (1987) for hernia occurrences.
After conducting a de novo review of the entire record, we find that the claimant's entitlement to temporary total disability compensation is not limited to the 26 weeks provided in Ark. Code Ann. § 11-9-523. In addition, we find that the claimant has proven by a preponderance of the evidence that he is entitled to additional temporary total disability compensation from August 21, 1993, through November 23, 1993. Therefore, we find that the administrative law judge's decision with regard to this issue must be reversed.
The claimant was employed by the respondent employer in the floor maintenance department. On June 24, 1992, he sustained an admittedly compensable bilateral inguinal hernia while carrying a heavy box down a flight of stairs. On June 30, 1992, Dr. W. K. Flake performed a bilateral inguinal hernioplasty with prolene mesh. Dr. Flake's records indicate that he recovered from this surgery appropriately, and he released the claimant to return to work on August 25, 1992, with no restrictions.
The claimant did return to work, and he performed his employment duties for approximately five months. However, at some point, he began experiencing pain in his right groin. In addition, at times, he also complained of scrotum pain and dysfunction. After examining the claimant on February 1, 1993, and based on these complaints, Dr. Flake indicated that the claimant's ilioinguinal nerve region appeared to be the source of the discomfort, and he took the claimant off work. In addition, when conservative measures did not relieve the claimant's problems, Dr. Flake referred him to Dr. C. R. Magness. Ultimately, both Dr. Flake and Dr. Magness opined that the claimant's problems were caused by an "ilioinguinal neuroma or entrapment problem." The claimant was also evaluated by Dr. Ray E. Stahl for this problem, and Dr. Stahl also indicated that the problem was a "possible neuralgia, right groin."
On July 26, 1993, Dr. Stahl referred the claimant to Dr. John F. Eidt at the University of Arkansas for Medical Sciences. Dr. Eidt agreed with the other physicians' conclusion that the problems were caused by nerve entrapment. Consequently, on August 13, 1993, Dr. Eidt and Dr. David H. Bauer performed an exploration of the right groin with resection of peripheral nerves. Dr. Eidt and Dr. Bauer did find the ilioinguinal nerve trapped in the mesh repair, and they repaired this nerve as well as resecting other small nerves in the area of the repair. In addition, they resected the genitofemoral nerve and another nerve in the area of the lateral abdominal wall. The claimant apparently got some relief from this surgery. However, Dr. Eidt's reports indicate that the claimant continued complaining of some chronic pain and swelling in the right inguinal region and of some right leg and knee weakness and pain. Electrodiagnostic testing of the claimant's right lower extremity revealed normal results. Likewise, clinical procedures did not reveal a cause for the problems.
The claimant contends that he is entitled to additional temporary total disability compensation from August 20, 1993, until a date to be determined. However, Ark. Code Ann. § 11-9-523 limits the compensation payable for work-related hernias to 26 weeks, and the respondents contend that they have paid the claimant all of the compensation he is entitled to receive because they have paid him temporary total disability compensation for 26 weeks. On the other hand, the claimant contends that the 26 week limitation is not applicable because his disability is caused by a complication of the hernia surgery, not by the hernia itself.
Arkansas Workers' Compensation Law provides a special section for the compensation of employees who sustain work-related hernias. Ark. Code Ann. § 11-9-523 (1987); see also, Jobe v. Capitol Products Corp., 230 Ark. 1, 320 S.W.2d 634 (1959); Rash v. Goodyear Tire Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986); Tibbs v. Dixie Bearings, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1983). Consequently, the compensation payable for a work-related hernia is limited to that provided in the statute. Id. This limitation is applicable even where the employee sustains a hernia which is worse in severity than that sustained by most individuals. Id.
Apparently, neither our Courts nor this Commission have ever directly decided whether the limitations of Ark. Code Ann. § 11-9-523 apply to limit the compensation payable for complications caused by the hernia but not directly related to it. Our Courts have considered cases where the employee contended that he was entitled to compensation in excess of that provided by the statute because his hernia was accompanied by complications. However, in each of those cases, the Court concluded that there was no complication other than the fact that the employee suffered a hernia that was more severe than that suffered by most individuals who sustain hernias. In Jobe, supra, the claimant contended that his hernia was accompanied by complications which resulted in a substantial permanent disability, and he sought permanent disability benefits in excess of the benefits provided by the statute. However, the medical evidence showed that the complications alleged were related to a weakness of the fascia, and the Court agreed with the Commission's conclusion that "[t]he very occurrence of hernia denotes a weakness of the fascia." Consequently, the Court concluded that the claimant's disability was "the result of the hernia" and "that the statute does not provide additional benefits because a particular injury in this category happens to be more severe than the usual injury." Likewise, in Smith v. Riceland Foods, 261 Ark. 10, 545 S.W.2d 604 (1977), the claimant sustained five hernias while employed by the respondent, and he contended that he was permanently and totally disabled. However, relying on Jobe, supra, the Court found that the claimant's disability was caused by his susceptibility to the recurrence of hernia due to an inherent weakness of the fascia. Therefore, the Court found that the claimant's disability was the direct result of the hernias and, consequently, that he was limited to the benefits provided by the statute.
In Tibbs, supra, the claimant had four hernias surgically repaired, and he contended that he was entitled to permanent disability compensation which would exceed the limitations of the statute because of complications. In this regard, the claimant was allergic to the silk sutures used in the surgeries, and he experienced multiple stitch infections due to this allergy, resulting in the need for additional surgery to remove the sutures. However, the Court concluded that the infections did not result in any disability separate or distinct for the hernia itself. Consequently, the Court found that the claimant was limited to the compensation provided by the statute. Under similar facts, these decisions were also followed in Rash, supra.
Consequently, the compensation payable for disability resulting directly from a hernia is limited to the compensation provided in the statute. However, in the present claim, the claimant's alleged disability results from the nerve entrapment that occurred during the hernia surgery, not from the hernia itself. Therefore, while the nerve entrapment and the resulting disability were a consequence of the occurrence of the hernia, it is separate and distinct from the hernia itself. Furthermore, the situation presented with this claim is similar to that presented where a injury scheduled in Ark. Code Ann. § 11-9-521 results in an injury which is not scheduled in the statute. While the Courts have consistently held that the compensation payable for injuries scheduled in Ark. Code Ann. § 11-9-521 is limited to the compensation provided by the statute, they have also found that the statute does not limit the compensation that the claimant may be entitled to receive for a nonscheduled injury which is found to be attributable to the scheduled injury. Clark v. Shiloh Tank and Erection Co., 259 Ark. 521, 534 S.W.2d 240 (1976);Milburn v. Concrete Fabricators. Inc., 18 Ark. App. 23, 709 S.W.2d 822 (1986).
Consistent with the principle applicable to other scheduled benefits, we find that the limitations of Ark. Code Ann. § 11-9-523 are not applicable to complications which are a consequence of the occurrence of the hernia but which are separate and distinct from the hernia itself. Therefore, we find that the statute does not limit the claimant's entitlement to compensation for disability resulting from the nerve entrapment. Therefore, we find that the administrative law judge's decision in this regard must be reversed.
We also find that the claimant is entitled to additional temporary total disability compensation. 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 he is within his 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 he is within his healing period and suffers only a decrease in his capacity to earn the wages that he 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 (6) (1987). 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 his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher. Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present claim, the claimant received temporary total disability compensation from June 26, 1992 through August 24, 1992, and from March 5, 1993 through August 20, 1993. The second surgery on the entrapped nerves was performed on August 23, 1993. He continued to return to the UAMS Medical Center for follow-up under the direction of Dr. Eidt. The November 24, 1993, report of his visit at the Medical Center contains the following statements:
Postoperatively, he has done quite well with improvement in his pain and general activity. However in clinic today, he continues to complain that his right groin causes him some discomfort and seems to affect the way he is able to walk. He complains that his knee bothers him and I believe this is because he alters his gait in response to the pain in the groin. He says that he is not able to work at the present time due to this discomfort and he seems to be a reliable person.
The claimant returned to the Medical Center on February 23, 1994. The report of that visit indicates that the claimant was continuing to complain of some chronic pain and swelling in the right inguinal region and with instability and pain in his right leg. In addition, the examination indicated that he was tender in the right inguinal regions and that he appeared to have come component of hernia, although he had lower abdominal laxity all across his abdomen. As a result of these complaints, the claimant was referred to Dr. J. K. Smelz in the Department of Physical Medicine Rehabilitation. Dr. Smelz described his physical examination as follows:
On today's evaluation, mild bulging was noted in an area slightly superior to the right herniorrhaphy scar, and this increased with the Valsalva's maneuver. Palpation in the area was associated with mild tenderness. Sensory examination was not consistent; the patient indicated that temperature, light touch, proprioception, and vibrations sense was decreased in the entire right lower extremity as compared to the left. Manual muscle test showed no weakness in any major muscle group of either lower extremity. There was no atrophy noted, and no fasciculations were absent.
Dr. Smelz also conducted electrodiagnostic tests, which were within normal limits. The claimant began physical therapy in March of 1993, and he was continuing to receive physical therapy at the time of the hearing in August of 1994. This therapy is directed at increasing the claimant's strength and stamina, and the reports indicate that the exercises have done so.
The claimant testified that he is unable to perform the job duties that he was performing for the respondent employer. He testified that his main problems involve his right leg, and he testified that is improving. He also admitted that he is not totally incapacitated. He testified that he has been fishing once since the second surgery, and he testified that he is able to use his right leg and foot to operate the brake and accelerator of an automatic transmission pickup. He testified that his ability to sit for extended periods is limited. However, he testified that he and his wife have traveled by automobile from their home near Harrison to Mississippi on a couple of occasions. He also admitted to helping his wife with the grocery shopping, running errands for her, and helping around the house with the dusting, vacuuming, and whatever else needs to be done. In addition, he admitted to mowing his yard with a riding lawn mower. Moreover, he testified that he has used a chain saw to trim trees that have been cut since the second surgery.
Based on our de novo review of the evidence, we find that the claimant's condition had improved as far as the permanent nature of his injury would permit by November 23, 1993. While he continued to complain of problems at that time which his physicians continued to evaluate, the evidence indicates that these complaints have remained essentially unchanged since that time. Moreover, further evaluation has not revealed any cause of these complaints. Also, although physical therapy has improved the strength in his right leg to some extent, there is no indication that this has had any effect on his complaints which are attributable to the compensable injury. Therefore, we find that the claimant's healing period ended on November 23, 1993, and that he is entitled to additional temporary total disability compensation from August 21, 1993, through November 23, 1993.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that Ark. Code Ann. § 11-9-523 does not limit the claimant's entitlement to compensation for disability resulting from the nerve entrapment to 26 weeks. In addition, we find that the claimant has proven by a preponderance of the evidence that he is entitled to additional temporary total disability compensation for the period extending from August 21, 1993 through November 23, 1993. Therefore, we find that the administrative law judge's decision must be, and hereby is, reversed with regard to these issues. The respondents are hereby ordered and directed to pay temporary total disability compensation in accord with this decision. In all other respects, we affirm the administrative law judge's decision.
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 (1987). 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 (b) (1987).
IT IS SO ORDERED.
Commissioner Humphrey concurs.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant is entitled to benefits beyond the 26 week limitation as set forth by A.C.A. § 11-9-523. The majority has determined that claimant's present disability is caused by complications associated with the hernia surgery and not the hernia itself. I disagree. Therefore, I respectfully dissent from the majority's opinion finding that claimant is entitled to additional temporary total disability benefits.
ALLYN C. TATUM, Commissioner