TRAYLOR v. CLYDE TRAYLOR, INC

OPINION AND ORDER

Respondent appeals from a decision of the Administrative Law Judge filed April 12, 1996 finding that the claimant's correct compensation rate for temporary partial disability benefits was $231.37 and that the claimant was entitled to temporary partial disability benefits from December 17, 1991 through June 6, 1993. The claimant cross-appeals the Administrative Law Judge's decision finding that the claimant was entitled to temporary partial disability benefits from December 17, 1991, through June 6, 1993. The Administrative Law Judge also found that the claimant sustained a 12% anatomical impairment to the wrist and 38% impairment rating to his elbow for which the respondent is liable minus a credit for overpayment of indemnity benefits.

We affirm the Administrative Law Judge's decision finding that the claimant's correct temporary partial disability rate is $231.37. However, we modify the Administrative Law Judge's finding that the claimant is entitled to temporary partial benefits after October 20, 1992, except for the period May 3, 1993 through July 6, 1993. Moreover, we affirm the Administrative Law Judge's finding that the respondent is entitled to a credit for overpayment of indemnity benefits.

The respondent contends that the claimant is not entitled to temporary partial disability benefits after October 20, 1992. The respondent also contends that the claimant's temporary partial disability rate was not $231.37 per week but was $199.80 per week. The respondent paid the claimant temporary partial disability benefits at the rate of $199.80 from March 23, 1992 to June, 1994. The respondent is seeking a credit for the overpayment of temporary partial disability benefits after October 20, 1992. The claimant contends that $231.37 per week is the correct temporary partial disability rate. In addition, the claimant contends that he is entitled to temporary partial disability benefits until August 16, 1994. The respondent acknowledged the anatomical impairment ratings. However, no payments have been made to the claimant because the respondent is seeking a credit for overpayment of temporary partial disability benefits.

The claimant was the owner of a construction company. He testified that he estimates jobs, contracts with subcontractors, supervises the construction jobs, and performs work on the jobs. On December 16, 1991, the claimant was working on a gymnasium in Dover, Arkansas, when he fell approximately ten feet from some bleachers. He sustained injuries to his left wrist and right elbow. He also cut his head and had a collapsed lung. The medical records reflect that the claimant initially received treatment for his injuries at St. Mary's Regional Medical Center and later at Johnson County Regional Hospital. In January of 1992, the claimant began treating with Dr. Joseph Sheppard at Arkansas Hand and Micro Surgery Center. Dr. Sheppard treated the claimant until October 10, 1992. The claimant did not receive any other medical treatment for his injury until May, 1993 when he had surgery performed by Dr. Sheppard.

The claim was accepted as compensable and temporary total disability benefits were paid by the respondent until March 22, 1992 when the claimant returned to light duty work. The respondent also paid the claimant temporary partial disability benefits from March 23, 1992 until June 19, 1994.

The claimant testified that from October 1, 1992 until August 16, 1994, he performed a number of construction jobs for family, friends and himself. This included a half million dollar apartment complex and a gymnastics building. In October of 1992, the claimant decided to build an apartment complex and scale back his business. This was a decision he made on his own and not at the recommendation of any of his doctors. At the hearing, the claimant testified as follows:

Q. In October of `92, you decided to do this apartment complex in [sic] scale back Clyde Traylor, Inc., is that correct?

A. Yes.

Q. And this was something you decided on your own, the doctor make any type of recommendation to that effect?

A. No, I didn't talk to him. (Tr. P. 25)

The claimant testified that he was able to put in 40 hours per week from October of 1992 to June of 1994. In addition, the claimant's wife testified that the claimant was paid whatever she and the CPA determined would be his annual salary. She testified that the claimant was not paid by the hour.

Mr. Joseph Allen, the CPA for Clyde Traylor, Inc., testified that the revenues for the claimant's business declined for the years 1991 through 1994. He also testified that the revenues of a construction company will decrease over time if it does not bid on jobs.

A review of the evidence indicates that the claimant's wages were reduced due to his working on a personal project, not due to a decrease in his earning capacity. The claimant testified that he scaled back his work because of his accident. However, as Dr. Sheppard's medical notes indicate, the claimant's restrictions were self-imposed. The evidence indicates that the claimant started a half of million dollar thirty-two unit apartment complex in October of 1992. Additionally, he built a gymnastics building for his wife and him to rent.

The Administrative Law Judge found that the temporary partial disability rate for the claimant is $231.37. The respondent argues that $231.37 is the maximum weekly amount for total disability for injuries occurring in 1991. The Commission has not specifically identified the maximum amount for temporary partial disability. However, a lower maximum rate is set forth for permanent partial disability. The respondent contends that the permanent partial disability rate is the maximum amount which should have been used to determine the weekly amount for temporary partial disability benefits for the claimant. For injuries occurring in 1991, that maximum amount was $173.53. The respondent argues that based upon the character of temporary partial disability benefits, the maximum rate for permanent partial disability benefits should govern the maximum amount the claimant should have received. Therefore, the claimant's temporary partial disability rate should be $173.53.

We cannot agree with the respondent's argument Temporary disability benefits, whether it be total or partial, are not the same benefits as permanent benefits. Temporary benefits allow the claimant to recover for lost wages during his period of recovery. The term "temporary partial disability" refers to the phase of permanent partial disability where the employee, although able to work at some gainful occupation, is still suffering from the effects of the injury, which in effect may reasonably be anticipated to disappear within the time fixed for compensation. Anchor Constr. Co. v. Price, 252 Ark. 460, 479 S.W.2d 573 (1972) In addition, temporary partial disability is that period within the healing period in which the employee suffers only a decrease in his capacity to earn wages he was receiving at the time of the injury. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).

Permanent disability benefits allow the claimant to recover for any permanent effects that his injury may have caused. The claimant will recover permanent disability compensation when he reaches the end of his healing period. 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. Permanent means lasting the rest of the claimant's life.

Permanent partial disability benefits and temporary partial disability benefits are two separate and distinct types of benefits. The Arkansas Supreme Court inArkansas State Hwy. Trans. Dept. v. Breshears, 271 Ark. 398, 609 S.W.2d 81 (1980), modified on other grounds, 272 Ark. 244, 613 S.W.2d 392, recognized that temporary disability is separate and distinct disability from any permanent disability and may be compensated separately. One cannot be equated to the other. The respondent urges this Commission to compare apples to oranges. Accordingly, we find that the permanent partial disability does not establish the maximum rate that the claimant can receive in temporary partial disability benefits. Therefore, the claimant can collect the maximum temporary total disability rate of $231.37 for his temporary partial disability if he is eligible for the maximum rate.

The next step is to make a determination as to what the claimant's compensation rate is. Temporary partial disability is governed by Ark. Code Ann. § 11-9-520 (1987) which provides:

In case of temporary partial disability resulting in the decrease of the injured employee's average weekly wage, there shall be paid to the employee sixty-six and two-thirds percent (66 2/3%) of the difference between the employees' average weekly wage prior to the accident and his wage-earning capacity after the injury.

The evidence shows that the claimant was entitled to $231.37 per week in temporary partial disability benefits. The claimant was injured on December 16, 1991. The claimant's 1991 W-2 reflects an income of $34,300 which equates to an average weekly wage of $659.62 before the accident. After the claimant returned to work in March of 1992, he was making an average weekly wage of $282.69, which is based upon the claimant's 1992 W-2 which reflects an income of $14,700. Ark. Code Ann. § 11-9-520 (1987) requires that the claimant's wages after the injury ($282.69) be subtracted from the claimant's wages before the injury (659.62) and the claimant is entitled to permanent partial benefits on 66 2/3% of this amount. Applying this statute to the case at bar, the claimant is entitled to receive $259.29 per week which clearly exceeds the maximum temporary rate of $231.37. Therefore, we find that the claimant is qualified to received $231.37 per week in temporary partial disability benefits. Accordingly, the Administrative Law Judge's decision in this regard should be affirmed.

We also find that the evidence clearly shows that the claimant was not entitled to temporary partial disability benefits after October of 1992. In order for the claimant to receive temporary partial disability compensation, he must prove that he is within his healing period and that he suffered a partial incapacity to earn wages. The claimant did not receive any medical treatment for his injuries after October, 1992, with the exception of two months from May 3, 1993 to July 6, 1993. Further, the evidence shows that the claimant requested that the surgery recommended by Dr. Sheppard in October of 1992 be postponed until sometime in 1993. Dr. Sheppard wrote in his October 20, 1992 office note:

Clyde Traylor is seen in follow-up for his right elbow. He has responded satisfactorily to the Relafen. His range of motion is without significant change. His bone scan today shows reduction in the soft tissue uptake of the heterotopic ossification.

I discussed with Mr. Traylor the potential benefits again of resection of the heterotopic ossification accompanied by post-operative radiation therapy. I do not believe that he will require a fascial interposition arthroplasty. He would like to wait until after the first of the year before we do this. He will call when he is ready to schedule it.

The medical records show that the claimant returned to Dr. Sheppard on May 3, 1993 for the resection of a heterotopic ossification. The claimant actively treated with Dr. Sheppard from May 3, 1993 until July 6, 1993. Thereafter, there are no records indicating that the claimant sought additional treatment from Dr. Sheppard or any other physician for his December, 1991 injuries.

It was the claimant who delayed the surgery. The mere existence of one remaining form of treatment does not prohibit a finding that the claimant's healing period has ended when the claimant refuses to undergo the treatment.Thurman v. Clark Ind., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). In addition, a claimant may enter into more than one healing period should he change his mind and submit to surgery. The evidence indicates that the claimant's healing period ended on October 20, 1992. However, the evidence also indicates that the claimant reentered his healing period on May 3, 1993 when he had the additional surgery and he remained within that healing period until July 6, 1993.

Based upon our de novo review of the record, we find that the claimant has not proven by a preponderance of the evidence that he was temporarily partially disabled after October 20, 1992. However, the claimant did reenter his healing period after the surgery on May 3, 1993. Therefore, he was temporarily partially disabled from May 3, 1993 to July 6, 1993. In addition, we find that the maximum rate for permanent partial disability for the claimant was $231.37.

The respondent paid the claimant temporary partial disability benefits in the amount of $199.80 per week for the period March 23, 1992 to June 19, 1994. The claimant is entitled to temporary partial disability benefits in the amount of $231.37 for the period March 23, 1992 to October 20, 1992 and May 3, 1993 to July 6, 1993. Therefore, we find that the respondent is entitled to a credit for any overpayment of indemnity benefits to be applied to the claimant's anatomical rating the respondent has accepted but not paid.

IT IS SO ORDERED.