OPINION AND ORDER
Respondent appeals from a decision of the Administrative Law Judge filed January 21, 1998, finding that claimant was temporarily totally disabled from March 12, 1997, and continuing through the end of claimant's healing period, that respondent has controverted the payment of incurred unpaid medical subsequent to April 11, 1997 and temporary total disability benefits subsequent to April 11, 1997, and finding that claimant has proven entitlement to a functional capacity evaluation as recommended by Dr. Austin Grimes as it is reasonable and necessary medical treatment of claimant's compensable injury. After conducting a de novo review of the entire record we find that the decision of the Administrative Law Judge must be affirmed in part and reversed in part.
The record reveals that claimant was involved in an accident on August 30, 1997, when the tractor he was operating to mow rolled over three times down an embankment. The record reveals that the tractor did have a roll bar and claimant was wearing his seat belt at the time of the accident. Claimant presented to Dr. Sudhir Kumar immediately following the incident where he described injuries to his hand, jaw and lower back. The only injury which is the subject matter of the hearing held on September 18, 1998, and this appeal was the injury to claimant's lower back. The record reveals that with regard to claimant's hand injury, he received treatment from Dr. Guy L'Heureux and underwent surgery to his thumb. As it was obvious that claimant's hand injury was the most severe injury, claimant's initial medical treatment centered around claimant's hand.
On September 26, 1996, almost one month after the accident, claimant reported to Dr. Kumar with pain in his right hip and knees. According to claimant's history, the pain began approximately two weeks ago, or around the middle of September. Dr. Kumar examined claimant's lumbar spine at that time and found ". . . full range of motion present, right hip tender, flexion of the hip is painful, however, no neuro-deficits and DTR's are normal." Dr. Kumar ordered x-rays of claimant's lumbar spine and right hip and diagnosed claimant with right hip sprain at that time. X-rays taken of claimant's lumbar spine on September 26, 1996, revealed a questionable compression fracture of claimant's 12th thoracic vertebral body. As a result of these x-rays, Dr. Kumar re-examined claimant on September 30, 1996, and referred claimant to Dr. Austin Grimes, an orthopedic surgeon.
Claimant was first seen by Dr. Grimes on October 9, 1996. Dr. Grimes reviewed the x-rays of claimant's thoracic lumbar vertebrae and noted:
X-rays reviewed in the office today from Forrest City show a wedging of the T-12 vertebral body, but I could not see a fracture line. This may be just a congenital anomaly. The wedging of the vertebral body is about 25% of the vertebral body height of T-12 compared to the posterior aspect of the vertebral body height and all anterior/posterior plain.
As a result of his examination, Dr. Grimes ordered an MRI of claimant's lumbar spine including the lower thoracic vertebral bodies. The MRI performed on October 21, 1996, revealed the following findings:
The lumbar vertebral bodies as well as the lower thoracic vertebral bodies appear to be intact. Alignment is satisfactory. The marrow signal is unremarkable in the vertebrae. Disc space heights are well maintained with normal signal. No extradural defect suggestive of a disc herniation is seen nor is any nerve root abnormality noted. The distal cord and conus look normal. The size of the spine canal is adequate.
The conclusion reached by the radiologist reading the MRI was that of a normal lumbar spine. In a follow-up visit on November 5, 1996, Dr. Grimes stated that he did not find any justification for epidural steroids or facet injections due to claimant's normal MRI.
On November 21, 1996, Dr. Grimes stated that claimant would be off work for an additional 7 to 10 days but may return to work after that period if claimant was able. It is noted that Dr. Grimes did not place any restrictions upon claimant at that time. On December 10, 1996, claimant returned to Dr. Grimes' office with complaints of pain in his right thigh which Dr. Grimes noted were characteristic of an L3-4 disc herniation. Based upon claimant's complaints, Dr. Grimes ordered an EMG/NCV of the claimant's right leg. The electrodiagnostic studies performed by Dr. David Miles on December 31, 1996, revealed normal nerve conduction studies and electromyographic studies. Dr. Grimes noted the following conclusions:
The electrodiagnostic studies are normal. There is no electrical diagnostic evidence or current irritation in the lumbosacral region on the right side.
Claimant continued to complain of pain, so on claimant's January 27, 1997, visit Dr. Grimes ordered physical therapy for a six week period. At that time, Dr. Grimes held claimant off work for sixty days in order to undergo the physical therapy. On March 10, 1997, Dr. Grimes released claimant to return to light-duty work effective March 11, 1997. At that time, Dr. Grimes imposed restrictions of no repetitive stooping, no lifting over 25 pounds and requiring claimant to take frequent breaks.
In accordance with Dr. Grimes' release to return to light-duty, claimant was provided with light-duty work on March 11, 1997. The light-duty work required claimant to ready an apartment for painting. Claimant was asked to remove the globe light fixtures from the ceiling and to remove the face plates off of the light switch and outlet sockets in the apartments. It is claimant's testimony that he was unable to perform these activities due to an exacerbation of pain. The record reveals that after working for less than three hours, claimant reported to the office and said he could no longer perform the job. At that point, Janet Duncan, the executive director for respondent employer advised claimant to do what he had to do.
On March 27, 1997, claimant was again seen by Dr. Grimes. At that time, Dr. Grimes noted:
I have recommended he go to vocational rehabilitation for job retraining or schooling to get into some other line of work where he will not have the stressors on his back and the neck from the work.
Dr. Grimes held claimant off work for one month following that examination.
Interestingly, there is an office visit note dated April 30, 1997, in which Dr. Grimes stated:
This patient was seen in the office today. He has been working at home gardening. He has a hearing for tests to be done on him in the near future. He is now resolving his herniated disc at L3-4. He still has some muscle spasms.
It is noted that at no time has Dr. Grimes ever diagnosed claimant with a herniated disc at L3-4. As specifically evidenced by claimant's normal MRI and electrodiagnostic studies, claimant's lumbar spine proved normal. Moreover, despite the initial diagnosis of a compression fracture at T-12, Dr. Grimes reviewed the x-ray films and could not confirm a compression fracture. In addition, the MRI failed to confirm a compression fracture. Thus, it is our opinion, that the August 30, 1997, office visit note recording "resolving of the herniated disc at L3-4" and "muscle spasms" is merely a recitation of claimant's reports to Dr. Grimes. This finding is consistent with the two other sentences under the follow-up paragraph where claimant provided a history of working in the garden and of an upcoming hearing. Consequently, we place no weight on the notations in the April 30, 1997, office visit noting a herniated disc and muscle spasms, as clearly there have been no previous findings or diagnosis consistent with a herniated disc or muscle spasms.
Claimant did introduce a document dated March 27, 1997, in which it states claimant is advised to remain off work until "getting a functional capacity exam for specific limitations and recommended for vocational rehab."
Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages.Ark. State Highway Trans. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period continues until the employee is a far restored as the permanent character of his injury will permit. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). If the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Id. The persistence of pain may not of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized.
A thorough review of all the medical records reveal that by at least March 10, 1997, when claimant was released to return to light-duty by Dr. Grimes, claimant's back condition had reached a point of stability from his compensable injury of August 30, 1996. Although claimant continued to complain of pain, Dr. Grimes was unable to locate the basis of claimant's pain by objective medical testing. The MRI proved normal as did the electrodiagnostic studies. By all accounts, claimant did not have a compression fracture, a herniated disc, or any other abnormalities in his lumbar spine which are documented with objective medical findings.
Moreover, the surveillance video introduced into evidence by respondent depicts a very active claimant who can climb in and out of a pick-up truck numerous times throughout the day without any obvious signs of discomfort. The videotape also depicts claimant rotating his entire upper torso in order to look behind him while driving. The movements are not guarded. In addition, the video depicts a claimant lifting his 3 1/2 year old son whom the claimant described as weighing 30 pounds into the pick-up truck no less than seven times over a two day period of surveillance. Finally, the video depicts a claimant who is very active running errands and driving all over town. There are no corresponding medical records for the month of February when the surveillance took place. However, as of March 10, 1997, Dr. Grimes found claimant to be capable of handling light-duty work within the restrictions imposed upon him. In our opinion, the job of readying an apartment for painting is no more strenuous than the activities undertaken by claimant the previous month when claimant was under surveillance. In our opinion, the person depicted on the videotape should be physically capable of handling the light-duty work assigned to him on March 10, 1997. The activities shown on the video of lifting the child, rotating and twisting the upper torso to drive, climbing in and out of the pick-up truck, and stepping up and down on the curb while talking on the phone, are much more inconsistent with claimant's restrictions than removing globes from light fixtures and removing face plates from light switches and outlets. Claimant was not required to stoop or lift to perform these activities.
Moreover, in the first office visit following claimant's return to work, we see nothing in that record which would indicate that the claimant had not obtained a point of stability in his medical healing. Dr. Grimes offered nothing more in the way of treatment to improve claimant's condition. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that he remained in his healing period and totally incapacitated from earning wages after March 10, 1997, when he was released to return to work under restrictions by Dr. Grimes. Therefore, we reverse the finding of the Administrative Law Judge that claimant remained in his healing period and entitled to temporary total disability benefits from March 12, 1997, and continuing through a date yet to be determined.
In reaching this finding, we do acknowledge subsequent medical records which tend to indicate a worsening in claimant's condition. However, as admitted by the claimant he suffered from pain and spasms in his back while on a recreational swimming outing with his family. It is also noted that during this time frame claimant engaged in swimming and diving for muscles as a means of earning extra income. In our opinion claimant's increase in pain did not come about until after these independent from the definition of compensable injury any injury incurred while the employee is engaged in any recreational or social activity for personal pleasure; and Ark. Code Ann. § condition which results from a non-work related independent intervening cause following a compensable injury. Obviously, prior to the swimming and diving claimant's physical condition had stabilized. It was only after these events that additional treatment in the form of medication and a TENS unit was necessary to address claimant's pain. Accordingly, we find that claimant has failed to prove that his increase in pain is related to his compensable injury or that he is entitled to additional temporary total disability benefits after having reached the end of healing in March of 1997. Therefore, we find that the decision of the Administrative Law Judge awarding benefits to the contrary must be reversed.
Likewise, we reverse the finding of the Administrative Law Judge that claimant has proven by a preponderance of the evidence that respondent controverted medical treatment after April 11, 1997, and temporary total disability benefits from that date. While these were claimant's contentions, the record is void of any evidence supporting these contentions. Claimant's contentions, alone, without supporting evidence, do not arise to a preponderance of the evidence. Therefore, we find that these findings must be reversed.
Finally, we affirm the Administrative Law Judge's finding that claimant is entitled to a functional capacity evaluation as recommended by Dr. Grimes. As stated above, we find that claimant's healing period ended on March 10, 1997, when he was released to light-duty work by Dr. Grimes. Since claimant has reached the end of his healing period, a functional capacity evaluation to determine claimant's permanent restrictions is an order. When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., FC Opinion Dec. 13, 1989 ( D512553). In our opinion, a functional capacity evaluation to assess claimant's permanent restrictions is reasonable. Therefore, we find that this finding of the Administrative Law Judge should be affirmed.
Accordingly, for those reasons stated herein, we find that the decision of the Administrative Law Judge should be affirmed in part and reversed in part.
IT IS SO ORDERED.
_______________________________
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner
Commissioner Humphrey dissents.