Opinion
CLAIM NO. F312557
OPINION FILED MARCH 16, 2006
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Honorable Evelyn Brooks, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by Honorable Curtis Nebben, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal a decision of the Administrative Law Judge filed on August 17, 2005, finding that the claimant is entitled to additional temporary total disability benefits from August 24, 2004, through March 27, 2005. Based upon our de novo review of the entire record, we find that the claimant has failed to meet her burden of proof. Therefore, we find that the decision of the Administrative Law Judge should be and hereby is reversed and this claim for additional benefits is denied and dismissed.
The claimant sustained an admittedly compensable injury on September 26, 2003. This claim was the subject of a previous hearing and order finding that the claimant was entitled to additional medical treatment subsequent to January 9, 2004, and finding that the claimant was entitled to temporary total disability benefits from November 13, 2003, through a date yet to be determined. The respondents issued the claimant a check for temporary total disability benefits for the period November 14, 2003, through August 23, 2004. The claimant contends that she is entitled to additional temporary total disability benefits. Conversely, respondents contend that as of August 24, 2004, the claimant was no longer totally incapacitated from earning wages. We agree with respondents.
It is undisputed that the claimant sustained an injury to her ankle on September 27, 2003. Pursuant to the previous hearing and Opinion, the claimant was awarded temporary total disability benefits from November 13, 2003, through a date yet to be determined. On or about November 12, 2004, the claimant underwent outpatient surgery to remove the hardware from her right heel. The only restrictions placed upon the claimant by her treating surgeon, Dr. Ruth Thomas, which were introduced into evidence appear in the Physician's Orders for the claimant's outpatient procedure. These orders do not restrict the claimant from working. In fact these orders only provide:
1. Discharge when fully alert and has another person available to drive home.
2. Elevate foot above heart level for 48-72 hours.
3. Provide patient a copy of post-op foot care instructions.
4. Crutches or walker needed with instruction.
Weight bearing status: Weight bear as tolerated
5. Provide a post operative wooden shoe for all patients who will be allowed to put full weight on the operated foot after surgery.
6. Medications: Document on Physician Order Sheet.
7. Call 686-5830 for post-op follow-up appointment for Already sched appt
The Physician's Order Sheet, referred to above, did not prescribe any therapy, medications, or laboratory studies. In addition, the Outpatient Surgery Discharge Instructions did not list any work restrictions for the claimant. In fact, these instructions advised the claimant that she would be able to resume most normal activities the day after surgery. The only special instructions provided the claimant on her discharge instructions were: "(1) Weight bearing as tolerated (2) Remove bandages and stitches in 2 wks." Although the discharge instructions reflect that the claimant had a follow-up appointment with Dr. Thomas on April 19, 2005, there is no explanation in the record as to why this post-surgical follow-up visit was scheduled five months after surgery. The only conclusion which can be drawn from this lengthy delay between surgery and the post-surgical follow-up appointment is that the surgery was minor and no complications or other problems required immediate, consistent, or prolonged medical attention. While the record does not contain any medical records or reports of the claimant's post-surgical treatment, the claimant did introduce a letter from Dr. Thomas to the claimant's attorney which is dated April 27, 2005. In this letter, Dr. Thomas writes:
I have reviewed Ms. Fendley's chart. As you know she underwent reconstruction surgery right foot, April 16, 2004. She is employed as a physical education teacher. Ms. Fendley insisted to me that she could not do her work duties because of prolonged weakness following the surgery. Our reports suggest that she worked hard in therapy trying to regain her strength. Even on her last clinic visit of March 27, 2005 she demonstrated 2cm atrophy of the right calf when compared to the non-operative side. I believe Ms. Fendley could have performed some type of employment if it did not require the full strength of her operated calf. Accordingly, sitting and teaching would have been appropriate; demonstrating physical activities such as gymnastics and running would not have been appropriate. I hope this information is helpful.
The burden of proof rests upon the claimant to prove the compensability of her claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is compensable, that the claimant's injury is job-related or that a claimant is entitled to benefits. Crouch Funeral Home v. Crouch, 262 Ark. App. 417, 557 S.W.2d 392 (1977); O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). In determining whether a claimant has sustained her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704(c)(4) (Repl. 1996); Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); andFowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
Since claimant's injury is a scheduled injury, temporary total disability benefits are only appropriate when claimant is still within her healing period and while she has not returned to work.See, Ark. Code Ann. § 11-9-521(a) (Supp. 1999); Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3D 822 (2001). The healing period is defined as that period for healing of the injury resulting from the accident which continues until the employee is as far restored as the permanent character of the injury will permit. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2D 51 (1990). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve the condition, the healing period has ended. Id.
Although the standard for temporary total disability for a non-scheduled injury which is set forth in Ark. State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), which only allows benefits when a claimant is within his healing period and when he suffers a total incapacity to earn wages, was not held to apply for scheduled injuries, the standard set forth in Wheeler Construction Co. v. Armstrong, 73 Ark. App. ___, ___, S.W.3d ___ (2001), cannot be considered in a vacuum. Clearly, that portion of the test for temporary total disability benefits for a scheduled injury which allows for such benefits when a claimant has not returned to work, does not stand alone. Ark. Code Ann. § 11-9-521 provides that a claimant is entitled to temporary total disability benefits "during the healing period or until the employee returns to work, whichever occurs first . . ." Obviously, the employees inability to return to work must be related to the compensable injury. An employees failure to work or return to work cannot extend ones entitlement to temporary total disability benefits, if the reasons for not working or returning to work is not causally related to the compensable injury.
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) (Supp. 1997). The healing period continues until the employee is as far restored as the permanent character of her 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. 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).
With regard to her post surgical medical treatment, the claimant testified that Dr. Thomas placed her in physical therapy in order to strengthen her right leg. The claimant testified that she attended physical therapy, but she did not provide any dates of that treatment, nor did she introduce any medical records confirming the treatment she received during therapy, or evidencing the nature of her healing.
The claimant is a fifth grade history teacher who is responsible for four history classes, one reading class, and one physical education class. Claimant maintains that teaching required her to be on her feet 90% of her time and that she was unable to teach at the time of the hearing. However, the claimant also testified that as part of her rehabilitation of her ankle injury, she runs 25 minutes, walks 25 minutes, lifts weights, performs Pilates, and does toe raises, as well as various other leg strengthening exercises everyday.
There is no evidence in the record that the claimant was ever restricted from working as a teacher during the 2004/2005 school year. The claimant carries the burden of proof with regard to her claim for additional temporary total disability benefits. The claimant was provided a contract of employment to teach for the 2004/2005 school year which ran from August 12, 2004, through May 27, 2005. The claimant's treating physician opined that the claimant could have performed her teaching duties so long as she did not have to demonstrate physical activities during P.E. that required gymnastics or running. In stark contrast to this restriction of no demonstration of gymnastics or running, the claimant admitted during cross-examination that she runs and performs Pilates exercises on a regular basis, thus evidencing her ability to perform these activities. While the claimant testified that she was on her feet 90% of the time at work, there is no evidence that she was required to stand or walk 90% of the time in order to perform her duties as a fifth grade teacher. The claimant was clearly capable of teaching during the 2004/2005 school year. Moreover, there is no credible evidence in the record that the claimant was restricted from working by her treating physician. On the contrary, claimant's treating physician clearly stated that the claimant could have worked. The claimant did not introduce any evidence referencing that she was off work, or that she continued to require medical treatment to improve her condition. While the claimant testified that she continued to under go physical therapy, such testimony does not equate to a finding that the claimant remained within her healing period. Medical maintenance to retain a person at their level of healing does not necessarily mean that the condition has not stabilized. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability benefits from August 24, 2004, through March 27, 2005, as she has failed to prove that she was totally incapacitated from earning wages during that period of time. Therefore, we find that the decision of the Administrative Law Judge should be reversed and this claim for benefits denied and dismissed.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.