Opinion
CLAIM NO. E801565
ORDER FILED AUGUST 5, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CHARLES R. PADGHAM, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] The respondents appeal to the Full Workers' Compensation Commission an administrative law judge's opinion filed September 28, 1998. The administrative law judge found that the claimant sustained a specific incident injury on November 26, 1997, for which he is entitled to temporary total disability and medical expenses. The Full Commission has reviewed the case de novo, and we affirm the administrative law judge's opinion.The parties stipulated that the claimant, age 34, was involved in a work-related "incident" on November 26, 1997. The claimant testified that a co-worker, Margo Bouvier, hit him with a piece of sheetrock:
And the sheetrock, the size of it was, it was about three foot tall, a foot wide, 5/8 thick, and on the bottom of it had a point three inches long.
The claimant testified that the sheetrock "probably weighed twenty pounds" and struck him on the left side, lower back, and that the blow "picked me up." The claimant testified that he grabbed his side in sharp pain and went directly to the company office to report the incident.
Although the claimant testified that no "horseplay" was taking place at the time, Margo Bouvier testified that she and the claimant were engaged in what the administrative law judge called "horseplay-type banter." Ms. Bouvier testified that the claimant was teasingly calling her "Margorilla," and she gave her version of the incident:
I was wheeling a wheelbarrow full of trash, which was sheetrock, studs, and dust, and whatever was on the floor, and I turned around and I picked up a piece of sheetrock about one foot by one foot, and I said, "Hey, catch," and I just tossed it like that. He was about three foot away from me. And he turned around and said "Oh my back," but he laughed and carried on, and he took the wheelbarrow and dumped it on the backhoe.
Ms. Bouvier testified that the claimant exhibited no physical difficulties. Shane Williams, an eyewitness, testified that Ms. Bouvier "barely tossed a little piece of sheetrock at him, and he grabbed his back and said he was hurt, but he was laughing and joking about it the whole time." Mr. Williams testified that the fun and games continued later that afternoon, when he joked with the claimant about "letting a woman treat him that way," and he and the claimant briefly wrestled. The claimant testified that he was off Thanksgiving weekend after the injury and returned to work the following Monday.
The claimant presented to the emergency department at Baptist Health on December 14, 1997. The claimant complained of an injury on the job about two weeks earlier, when he was hit in the "left flank area" by a piece of drywall. The claimant complained of pain in the left ribcage/flank area. X-ray revealed no evidence of rib fracture or other abnormality. Specifically, x-ray taken December 14, 1997 revealed the impression "negative ribs." Dr. Dennis Burrow felt that the claimant had a contusion, "but I explained to him that he possibly could have a crack in the rib that I could not see on the x-rays. I told him he can do whatever he can tolerate pain-wise." Although Dr. Burrow did not take the claimant off work, the claimant testified that he returned to light work duties the next week. Dr. Burrow's diagnosis was "contusion, left side," and he prescribed medication. The respondents began paying medical benefits.
A physician saw the claimant at Malvern Medical Center on January 23, 1998. The claimant reported that he had been hit by sheetrock on November 26, 1997, and that the blow "knocked the breath out of him when it happened; can't get a deep breath, muscle spasms, sore to touch." The doctor wrote that the claimant "had bruising for a few days in lt lumbar area." The physician suspected a soft tissue injury, which "should have cleared," and he ordered medication and physical therapy. The claimant told a physical therapist on January 26, 1998 that he had previously been diagnosed with broken ribs.
Dr. Michael Young, an orthopedist, began treating the claimant on March 17, 1998. Dr. Young's first impression was "Contusion, possible occult fractured ribs on the left posterior costal margin." Dr. Young wrote on April 7, 1998 that a bone scan "showed one healing rib fracture, posteriorly on the left. No other abnormalities." MRI taken on April 20, 1998 showed no frank herniations, but did show evidence of thoracic and lumbar degeneration. Also on April 20, 1998, Dr. Young took the claimant off work, and he referred the claimant to a pain management specialist the next day. On May 4, 1998, Dr. Young kept the claimant off work until June 3, 1998.
The respondents controverted benefits after May 14, 1998. On June 3, 1998, Dr. Young opined that the claimant could return to work after July 1, 1998. Dr. Young corresponded with claimant's counsel on June 18, 1998 and stated, "It does appear that the work injury was the reason for the rib fracture." On July 15, 1998, Dr. Young wrote that the claimant still had pain symptoms, but the doctor would not anticipate an impairment rating. "I do feel that the best course of action would be to let him slowly advance his activity and hopefully return to work in some form or fashion."
The employee filed a claim for additional benefits, contending that he had sustained a compensable injury and was entitled to temporary total disability benefits from March 17, 1998 until a date yet to be determined. After a hearing before the Commission, the administrative law judge found that the claimant sustained a compensable rib fracture from the flying piece of sheetrock, that the claimant is entitled to temporary total disability until the end of his healing period, designated as June 3, 1998, and that the claimant is entitled to medical expenses incurred. The respondents appeal to the Full Commission.
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). Act 796 of 1993 defines the "healing period" 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 his injury will permit. When the underlying condition which is causing the disability stabilizes, and when nothing further will improve that condition, the healing period has ended. The employee is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities. Persistent pain does not suffice, 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 matter, the administrative law judge found that the claimant was entitled to temporary total disability benefits, but he did not specify when temporary total disability would begin. The parties stipulated that the claimant was involved in a work-related incident on November 26, 1997. The claimant testified that he was struck in the left side, lower back, by a large, heavy, pointed piece of sheetrock. The blow lifted the claimant from the ground and caused acute pain. In addition to diagnosing a contusion on December 14, 1997, Dr. Burrow thought the claimant could have a cracked rib. The claimant began performing light work duties, and the respondents paid medical benefits. In January, 1998, a physician suspected a soft tissue injury and ordered physical therapy.
Dr. Young, an orthopedist, began treating the claimant on March 17, 1998, and his impression was contusion, possible occult fractured ribs on the left posterior costal margin. Our review of the record indicates that the claimant worked through March 29, 1998. The claimant testified that the admitted compensable injury simply rendered him unable to work beyond that date, and he was treated for rib pain at St. Joseph's Malvern Medical Center beginning March 30, 1998. The St. Joseph's physician did not expressly take the claimant off work, but Dr. Young reported on April 7, 1998 that a bone scan indeed showed one healing rib fracture, posteriorly on the left. Notably, Dr. Young also indicated on May 4, 1998 that the claimant was incapacitated to work.
In reaching our decision, we note that the dissent asserts that the claimant's pain complaints were not based upon any injuries sustained by him on November 26, 1997. The dissent quotes extensively from hearing testimony regarding the degree of the claimant' complaints to co-workers at the time of, and following the incident at work, and the dissent asserts that the claimant experienced a "relatively minor incident on November 26, 1996, from which he recovered." To the contrary, however, the medical evidence indicates that the claimant in fact had suffered from a traumatic rib fracture from the November, 1997 incident which had not healed prior to the period in question in 1998, as the dissent seems to assert. This conclusion is supported by the objective 1998 bone scan diagnostic test discussed above, by Dr. Young's assessment in 1998 that the claimant's work related injury was the reason for the claimant's rib fracture, and by Dr. Young's various off work recommendations in 1998. Our de novo review indicates that the claimant has established by a preponderance of the evidence that he was in fact within his healing period and totally incapacitated from earning wages from March 30, 1998 through June 3, 1998. In light of Dr. Young's medical reports and in light of the objective bone scan diagnostic test results, we simply cannot agree with the dissent's assertion that the claimant sustained only a relatively minor injury on November 26, 1997, which resolved prior to the period in 1998 for which temporary disability compensation was sought. On this record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the credible evidence that he did in fact remain within his healing period from his compensable rib fracture injury and that he was totally incapacitated to earn wages on March 30, 1998.
The administrative law judge found that the claimant was entitled to temporary total disability compensation continuing until June 3, 1998. The respondents appealed this award to the Full Commission, stating in their Notice of Appeal that the administrative law judge erred in finding that the claimant was entitled to payment of temporary total disability benefits through June 3, 1998. The claimant did not file a notice of cross-appeal, although he concludes in his brief to the Full Commission that his temporary disability award should be extended through July 1, 1998. Since the claimant did not file a cross-appeal in this claim, we must decline to reach any issue presented in his brief which does not relate to the issue specifically framed in the respondents' notice of appeal, videlicet, whether the administrative law judge erred in finding that the claimant was entitled to payment of temporary total disability benefits through June 3, 1998. See, Mills v. The Wright Place, Full Workers' Compensation Commission, opinion filed September 11, 1997 ( E516754).
In declining to reach the issue of additional temporary disability as argued in the claimant's brief on appeal, we are mindful of the case of White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990). In White, the respondents alleged that the employee's claim was barred under the three requirements established in Shippers Transport v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). An administrative law judge concluded that the claim was not barred pursuant to Shippers, finding that the respondents failed to establish the second requirement. The respondents petitioned the Full Commission for review, but the claimant did not file a cross-appeal. Therefore, the Commission confined its review in White to a single issue, viz., the second element of the Shippers defense. However, the Court in White found that the Commission erred in so confining its review, because a final order had not been entered and the respondents had not, in their petition for review, limited the issues for consideration. Cf., Rogers v. Darling Store Fixtures, 45 Ark. App. 68, 870 S.W.2d 776 (1994). The Court in Rogers found that the Full Commission erred in refusing to consider the "issue of the pain clinic" where an administrative law judge had awarded psychological counseling, but not specifically pain clinic treatment, and the claimant did not file a notice of cross-appeal. Nevertheless, the Court in Rogers relied upon the following language from White:
The petition for review in the case at bar called into question the administrative law judge's award and all the findings on which it was based. Although the appellant did not file a petition for cross appeal as he was permitted to under Ark. Code Ann. 11-9-711 (1987), no cross appeal was necessary because the appellant had prevailed before the administrative law judge and sought no affirmative relief before the Commission. White, supra.
In the present matter, the claimant does seek affirmative relief in his brief to the Full Commission. That affirmative relief is an additional period of temporary total disability extended beyond what the administrative law judge awarded. Therefore, we distinguish White and Rogers, and we must decline to reach the issue of additional temporary total disability.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant sustained a specific incident injury on November 26, 1997, for which he is entitled to payment of reasonable and necessary medical expenses through the end of his healing period. We find that the claimant was within his healing period and totally incapacitated to earn wages from March 30, 1998 through June 3, 1998, and that the claimant is thus entitled to temporary total disability benefits for this time period. Therefore, we affirm the opinion of the administrative law judge. 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 (Repl. 1996). 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 (Repl. 1996).
IT IS SO ORDERED.
_______________________________
CONCURRING AND DISSENTING OPINION
[23] I concur in part and must respectfully dissent in part from the majority opinion in this case. I concur in the findings that claimant sustained a specific incident injury on November 26, 1997, for which he is entitled to receive medical benefits. Moreover, I agree that entitlement to temporary total disability benefits commenced on March 30, 1998, and continued until at least June 3, 1998. However, I must respectfully dissent from the finding that claimant is not entitled to temporary total disability benefits after June 3, 1998. In my opinion, claimant's entitlement to temporary total disability benefits did not cease until July 1, 1998.On November 26, 1997, claimant was struck by a piece of sheet rock at a construction site. He initially sought medical treatment on December 14, 1997, at the emergency room. He provided a history of a work-related incident occurring prior to Thanksgiving. The treating physician's report reflected that claimant "possibly could have a crack in the rib." He was given pain medication, and advised to follow-up with his family physician.
As a result of a referral by Dr. Robert White, claimant was examined by Dr. Michael Young on March 17, 1998. Claimant reported rib pain, and back pain. Dr. Young ordered a bone scan, which revealed the presence of a healing rib fracture posteriorly on the left. Dr. Young also ordered a MRI, which failed to show evidence of a frank herniation. However, some degenerative changes were noted.
On April 21, 1998, Dr. Young wrote a letter of referral to Dr. Don Boos, with the Mercy Pain Clinic. In his correspondence, Dr. Young asked Dr. Boos to consider a course of trigger point injections. However, there is no evidence that this course of treatment was pursued. In any event, Dr. Young completed an off-work slip on May 4, 1998, excusing claimant from work until June 3, 1998. On June 3, 1998, Dr. Young reexamined claimant, noting that he continued to have increased pain. Claimant also reported that the medication had been ineffective. Dr. Young changed claimant's medication, and advised him to return in about one month. He indicated that claimant could return to work after July 1, 1998.
In a letter to claimant's attorney dated June 18, 1998, Dr. Young stated he was treating claimant for a healing left rib fracture. He stated that claimant reported "left posterior rib pain and back pain after being involved in an on-the-job injury, 11/26/97." He added that: "It does appear that the work injury was the reason for the rib fracture." Dr. Young outlined his treatment plan stating that: "I think the plan would be to let him slowly advance his activity and return to work on a limited basis initially with a plan of getting him back to working full-time. He may benefit from oral medications, and possibly therapy in the future."
Clearly, the evidence supports a finding that claimant sustained a cracked rib as a result of a specific incident injury occurring on November 26, 1997. As early as December 14, 1997, a cracked rib was suspected. However, claimant only had an x-ray performed in the emergency room. The emergency room physician opined that a rib fracture was possible. When more sophisticated diagnostic testing was performed on March 23, 1998, a fracture was detected. Dr. Young has attributed claimant's fracture to the work-related incident.
In his appeal brief, claimant argues that he is entitled to additional temporary total disability benefits. I agree. I find that claimant's entitlement to temporary total disability benefits did not cease until July 1, 1998. In this regard, I am relying on claimant's credible testimony along with the opinion of Dr. Young.
In reaching this determination, I recognize that the majority has relied on Mills to support a finding that claimant's failure to file a cross-appeal serves as a procedural bar to his claim for additional temporary total disability benefits (i.e., after June 3, 1998). The Mills case supports this finding, and I agreed with our opinion when it was decided. Upon further reflection, I have concluded that Mills was wrongly decided. It is my position that if either party appeals a specific award of benefits, the Commission is free to reduce or increase the award, regardless of whether a cross-appeal was filed. Respondents have properly raised this issue on appeal; therefore, a cross-appeal is not necessary.
Finally, I note that in addition to Mills, the majority has relied on Rogers v. Darling Store Fixtures, 45 Ark. App. 68, 870 S.W.2d 776 (1994). In this regard, the majority argues thatRogers is distinguishable from this case. I disagree. InRogers, the Court of Appeals stated:
Although the Commission has the statutory authority to require that parties specify all the issues to be presented for review, it also has the statutory duty to decide the issue before it on the basis of the record as a whole, and to decide the facts de novo.
Based on the foregoing, I concur in part and respectfully dissent in part.
_________________________________ PAT WEST HUMPHREY, Commissioner
CONCURRING AND DISSENTING OPINION
[36] I must respectfully dissent from the majority's opinion finding that the claimant was entitled to additional medical benefits and temporary total disability benefits through June 3, 1998. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof. However, I must concur in the majority's finding that the claimant is not entitled to any temporary total disability benefits after June 3, 1998, because he failed to appeal the Administrative Law Judge's decision awarding temporary total disability benefits through June 3, 1998.The evidence fails to establish that the claimant is entitled to temporary total disability benefits or additional medical benefits through June 3, 1998. The claimant testified that he was cleaning up the work place with employees of Suspended Systems, the drywall contractor, and IHP Industries, the plumbing subcontractor. The claimant testified that he was placing debris in the bucket of his backhoe when Margo Bouvier struck him in the area of his left kidney with a piece of sheet rock that was three feet tall, one foot wide and 5/8 of an inch thick. Claimant estimated that this sheet rock weighed approximately 20 pounds. The claimant stated that this incident did not occur as a result of horseplay. However, he heard others laughing immediately beforehand and he had occasionally called Ms. Bouvier Margorilla. The claimant testified that after the incident he reported the occurrence to Doug Alhart, the Superintendent, and Brent McAtee, the carpenter foreman. He also testified that he did not work the remainder of the day. However, two witnesses testified that the claimant worked the rest of that day and in addition worked for two weeks thereafter.
The claimant's account of the events of November 26, 1997, are markedly different from what Ms. Bouvier and Mr. Williams testified to at the hearing. Ms. Bouvier testified that on November 26, 1997, she and the claimant were engaged in horseplay immediately prior to the incident. Further, Mr. Shane Williams, who worked for the plumbing subcontractor, testified that at quitting time on that date he and the claimant engaged in a wrestling match.In addition, according to the claimant, on December 14, 1997, he was watching his children play in the yard when he suffered pain so severe it made him fall to his knees. However, the November 26, 1997, accident did not cause such a reaction. The claimant was diagnosed at Baptist with having a contusion to his left side and x-rays were normal. The respondents continued to pay for the claimant's medical treatment until May 14, 1997. At that time, the claimant's subjective complaints of pain were not based upon any injuries sustained by him on November 26, 1997. The claimant's medical histories are replete with inconsistency. His complaints of pain are to the left ribs, lower back, shoulder, and numbing and tingling in his arms and legs. The complaints of pain are different virtually each time the claimant visits a doctor. Further, complaints of pain do not extend the healing period.
The evidence shows that the claimant was struck by a small piece of sheetrock and the claimant worked the remainder of the day and the next two weeks before seeking any medical treatment. The evidence fails to support a finding that the claimant is entitled to any additional medical treatment or temporary total disability benefits. The claimant's credibility is certainly suspect. He testified that the piece of sheetrock was almost three feet long wherein Ms. Bouvier, the person who threw the sheetrock, and Mr. Williams stated that it was less than a foot long. It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).
Therefore, based upon my de novo review of the evidence, I find that the claimant has failed to meet his burden of proof. Accordingly, I respectfully dissent from the majority opinion finding that the claimant is entitled to temporary total disability and medical benefits through June 3, 1998.
______________________________ MIKE WILSON, Commissioner