Opinion
CLAIM NO. E215871
OPINION FILED MAY 24, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by MARK SCHAFER, Attorney at Law, Rogers, Arkansas.
Respondents represented by J. DAVID WALL, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent appeals an opinion of the Administrative Law Judge filed on July 8, 1993.
Respondent acknowledges that on August 21, 1992, claimant sustained a compensable injury in the form of a fractured coccyx and an aggravation of a preexisting Grade II spondylolisthesis of L5 relative to S1. The parties appear to agree that the healing period for the fractured coccyx ended on or about December 8, 1992. Respondent argues that claimant's spondylolisthesis had returned to its pre-aggravation state as of December 8, 1992 and therefore, the healing period for this condition has likewise ended.
Claimant has the burden of proving by a preponderance of the evidence that her current back condition is causally related to the compensable injury.Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974). We find that claimant's spondylolisthesis has yet to return to its pre-aggravation state. Prior to the compensable injury claimant was not disabled as a result of the spondylolisthesis. As a result of the compensable injury, claimant has physical limitations, her daily activities are restricted, she experiences constant pain, and is taking prescription medications. Further, in a report dated February 19, 1993, Dr. Luke Knox indicated that the compensable injury continues to contribute to her spondylolisthesis. Therefore, we find that claimant has proven by a preponderance of the evidence that her continued symptoms and disability are causally related to the aggravation of her preexisting condition.
Additionally, we find that claimant continued to be within her healing period subsequent to December 8, 1992. The healing period ends when the underlying condition causing the disability 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).
In a report dated December 8, 1992, Dr. Vincent Runnels referred claimant to Dr. Knox for a second opinion and indicated that claimant was not a surgical candidate "at this point" until she loses some weight. The treating physicians have recommended that claimant lose weight, stop smoking and continue performing exercises. In a report dated March 31, 1993, Dr. Knox noted that claimant had not lost any weight and had failed to quit smoking. However, Dr. Knox prescribed "a physical therapy program with lumbar stabilization exercises." Thus, even as late as March 31, 1993, the treating physician was still prescribing treatment in an effort to improve claimant's condition. Therefore, we find that claimant remained within her healing period subsequent to December 8, 1992. Further, since claimant has not appealed the Administrative Law Judge's denial of benefits beginning March 31, 1993, we find that claimant is not entitled to temporary disability benefits subsequent to that date.
Claimant has proven by a preponderance of the evidence that she is entitled to benefits for temporary partial disability. Claimant testified that as a result of the compensable injury, her treating physician has restricted her work with the employer to four hours per day, five days per week. Any argument that claimant failed to present corroboration of this testimony is without merit. The record clearly contains a document prepared by Dr. Knox indicating that as of December 11, 1992, claimant was to work no more than four hour days and should avoid lifting, stooping, bending or reaching. Thus, claimant has proven the date on which her temporary partial disability began. That date is December 11, 1992.
Concerning the ending date of her temporary partial disability, Dr. Knox reported on March 31, 1993 that claimant could work a four hour per day schedule. However, claimant has not appealed the Administrative Law Judge's finding that she is not entitled to temporary disability benefits subsequent to March 31, 1993. Thus, the date on which claimant's entitlement to temporary partial disability benefits ends would be March 31, 1993. Therefore, claimant has proven by a preponderance of the evidence that she is entitled to benefits for temporary partial disability from December 11, 1992 through March 31, 1993.
Respondent argues that claimant failed to prove that she had a decrease in her hourly rate of pay. However, it is not a reduction in her hourly rate of pay that entitles claimant to temporary partial disability benefits. Her entitlement is triggered by the reduction in the number of hours claimant can work.
The parties stipulated that claimant's weekly benefit rate for total disability is $177.35. This computes to an average weekly wage on the date of the injury of $266.00. Pursuant to 11-9-520, claimant's rate of compensation for temporary partial disability equals 66 2/3 of the difference between her average weekly wage prior to the accident and her wage earning capacity after the injury. As noted above, claimant's average weekly wage prior to the accident was $266.00. Her wage earning capacity after the injury should be based on her part-time employment with the employer. This calculation is based on four hours per day, five days per week, or in other words, 20 hours per week. In order to calculate claimant's wage earning capacity after the injury, respondent merely has to multiply claimant's hourly rate of pay by 20. Thus, respondent does not have to resort to speculation in order to comply with the Administrative Law Judge's order.
Finally, we find that it is irrelevant that claimant may be earning a small and insignificant amount driving a school bus or riding the bus as a monitor. When a claimant is working at two jobs at the time of the compensable injury, claimant's disability is based on the capacity to earn wages in any employment undertaken in place of the employment where the compensable injury occurred.
In Stephens v. Mountain Home School District, 41 Ark. App. 201, 580 S.W.2d 335 (1993), the court stated that "for the purpose of defining disability, `any other employment' means any other employment in lieu of the one in which the employee was injured. Since appellant was working both jobs when she was injured, the job with HUD was not `any other employment' undertaken in the place of the part-time bus driving job." Thus, the fact that the claimant was able to continue earning wages in her other employment did not preclude her from receiving benefits for temporary total disability. The claimant was unable to perform her job with the employer where the compensable injury occurred and was therefore, entitled to temporary total disability benefits.
The same holds true in the present case. Since claimant cannot earn the same average weekly wage with the employer as she was receiving at the time of the compensable injury, she is entitled to temporary disability benefits. Since her capacity to earn has been decreased, her temporary disability is partial. Thus, it is of no consequence that claimant failed to offer evidence of her earnings through the Bentonville Public Schools.
For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant's current back condition is causally related to the compensable injury. Further, we find that claimant is entitled to benefits for temporary partial disability from December 11, 1992 through March 31, 1993. Respondent is directed to comply with the Commission's award of additional benefits. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
Commissioner Tatum dissents.