OPINION AND ORDER
Respondent appeals from a decision of the Administrative Law Judge filed May 9, 1996. We disagree with the decision of the Administrative law Judge finding that the claimant's healing period extended through September 2, 1993. Based upon our de novo review of the entire record, we find that claimant has proven by a preponderance of the evidence that her healing period extended past August 23, 1992 through January 7, 1993.
The claimant sustained an admittedly compensable injury to her lower back on January 12, 1992. The parties stipulated that the respondent paid all appropriate temporary total disability benefits to the claimant through August 23, 1992, at which time benefits were ceased. The parties further stipulated that the claimant's gynecological/urological problems were unrelated to her compensable injury.
At the hearing held on September 27, 1995, the claimant contended that she was entitled to additional temporary total disability benefits as she remained temporarily totally disabled. Respondent contended that all appropriate benefits had been paid to date and further contended that the claimant's urological and gynecological problems began giving the claimant severe difficulties in August of 1992 which resulted in an independent intervening cause breaking the chain of causation between the claimant's compensable injury and the claimant's disability. Alternatively, respondent contended that the claimant's healing period ended on or about January 12, 1993.
Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). 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. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve the condition, the healing period has ended. Id. The determination that is to be made by the Commission, and if that determination is supported by substantial evidence, it must be affirmed. Id.; Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). 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. Temporary total benefits do not, in all cases, correspond to the healing period; temporary disability is not based on the claimants healing period, but is awarded where the claimant's injury-caused incapacity prevents him from earning the wages he was receiving at the time of the injury. County Mkt. v. Thornton, 27 Ark. App. 235, 770 S.W.2d 156, supp. op. reh'g denied. 27 Ark. App. 241-A, 771 S.W.2d 793 (1989).
After reviewing the entire record, de novo, we find that the claimant's healing period ended on January 7, 1993. As previously noted, the parties stipulated that the claimant's gynecological/urological problems are unrelated to the claimant's compensable injury. The claimant's family doctor, Dr. Tanner, noted in his January 25, 1993 correspondence addressed to "[t]o whom it may concern" stated:
I have been asked to tie in her injury with her previous complaints. My opinion is that she had pre-existing pain which was aggravated by her fall, as is documented by her piriformis syndrome in 10-90 which predated her injury. Again, I do believe her back pain was aggravated by her fall, however, her last visit revealed that her pain secondary to her fall which was much better and indeed she had developed a distinctly different area of pain.
As noted by the claimant's family physician at the time of her last visit, the claimant's pain related to her fall had improved and the claimant had developed a distinctly different area of pain. Claimant's last visit to Dr. Tanner referenced in his January 25, 1993 correspondence was on January 7, 1993. This date corresponds with Dr. Jim Moore's assessment that the claimant's healing period ended on January 12, 1993. In fact, Dr. Moore testified in his deposition that a healing period ending on January 12, 1993 "would be generous".
The opinion of Dr. Tanner and Dr. Moore correspond with Dr. Saer's assessment that by the time Dr. Saer examined the claimant in July of 1993 the claimant's lumbar spine condition was stable. Thus, in our opinion, the medical evidence indicates that the claimant's lumbar spine condition had stabilized on or about January 7, 1993 when she was examined by Dr. Tanner. The claimant's condition had become stable and continued medical treatment of her compensable injury was clearly of no benefit to the claimant. Although Dr. Saer testified that a soft tissue strain will usually plateau within six to twelve weeks, he did state that occasionally a few patients may take as long as a year to recover from this type of injury. Again, Dr. Saer's deposition testimony is consistent with the opinion of Dr. Moore and Dr. Tanner.
Temporary total disability benefits are not based solely upon one's healing period, and may still be awarded if it is proven by a preponderance of the evidence that the work-related injury has caused an incapacity from earning wages which one was receiving at the time of the injury. See County Market v. Thornton, supra. Based upon our review of the record, we find that the claimant has failed to prove this aspect of the temporary total disability test. The evidence reveals that the claimant's back condition was not preventing her from returning to work. In his deposition, Dr. Saer was asked about claimant's ability to return to work.
Q. Okay. Doctor, as far as her back condition is concerned, is there any reason she couldn't have gone back to a light or sedentary medium type job just as far as her back strain was concerned at the time you saw her in June of '94? I think she was working as a nurse's aid at a nursing home maybe at the time of her injury.
A. I don't think there is any question the patient is having pain as I've described, and a nurse's aid does not have an easy job whether it's in a nursing home or elsewhere. They're required to do an awful lot of excessive physical things, so I think she would have been limited on that standpoint.
Q. You would want to ease her back into that type of employment; is that correct?
A. Well, it would be hopeful to be able to do that, yes.
Q. Okay. All right. Just from an objective point of view, though, is there any reason she couldn't have gone back at that point and attempted to return to work?
A. No.
Q. Based only on her back problem?
A. No.
Q. Okay. Now, these other problems she mentioned —
A. Yes.
Q. — would those have been a hindrance to her returning to work?
A. Yes.
While Dr. Saer testified that he would not return the claimant to work due to her subjective complaints of pain, this, in our opinion, is not sufficient to find that a claimant is totally incapacitated from earning wages. By the time Dr. Saer examined the claimant, it was clear that the claimant's lumbar strain had stabilized. Moreover, Dr. Tanner explained that in January of 1993 the claimant's pain developed in a distinctly different area. Thus, while Dr. Saer stated he would not return the claimant to work due to her pain, we find that the claimant has failed to prove by a preponderance of the evidence that the pain she experienced subsequent to January of 1992 is causally related to her compensable injury. Consequently, we find that Dr. Saer's opinion that the claimant should not return to work due to her pain is irrelevant with regards to temporary total disability and is entitled to little weight. Dr. Tanner, Dr. Moore, as well as Dr. Saer, all agree that claimant's compensable back injury is not preventing the claimant from returning to work. Consequently, we find that the claimant has failed to prove entitlement to temporary total disability benefits beyond the end of her healing period, January 7, 1993.
Accordingly, we find that the claimant's healing period ended on January 7, 1993. We further find that the claimant has failed to prove that she remained totally incapacitated from earning wages as a result of her compensable injury subsequent to January 7, 1993. Therefore, we affirm as modified the Administrative Law Judge's decision.
IT IS SO ORDERED.
[13] Commissioner Humphrey dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant has failed to prove any entitlement to temporary total disability benefits after January 7, 1993. I would affirm the decision of the Administrative Law Judge finding that claimant is entitled to an award of temporary total disability benefits from August 23, 1992 (the date of the last payment of such benefits), through September 2, 1993.
Claimant, while working as a nurse's aide, sustained an admittedly compensable injury on January 12, 1992, when she attempted to lift a patient and felt a "pop" in her back. Respondents accepted the injury as compensable and paid appropriate benefits (including temporary total disability) until August 23, 1992, at which time benefits were terminated on the grounds that claimant's urological and gynecological problems constituted an independent intervening cause of her ongoing difficulties and need for treatment.
The record does indicate that claimant has contended with significant gynecological problems, and has even received surgical treatment for the same. It is also true that Dr. Jim J. Moore has opined that an end date of January 12, 1993, for claimant's healing period "would be generous." However, I note the following exchange of testimony provided by Dr. Edward H. Saer on October 28, 1993:
Q. And let's see, on July 22, 1993, you wrote a letter to Liberty Mutual Insurance Company regarding Ms. Shelby, and the second sentence — second paragraph, last paragraph reads as follows: "I do not think she is able to work presently."
A. Yes, sir.
Q. Correct?
A. Correct.
Q. And, in your opinion, was her inability to work as a result of her January 1992 back injury?
A. Yes, sir.
Q. And then you last saw Ms. Shelby September 2, 1993 correct?
A. Yes, sir.
Q. And had your opinion as to her inability to work and the reason for her inability to work changed, or was it the same as it was on July 22, 1993?
A. It was the same.
I also note that as late as September 7, 1993, Dr. D. Wayne Brooks was able to identify "many tight muscles in both the shoulder and pelvic girdle."
In my opinion, Dr. Saer's deposition testimony indicates that claimant remained totally incapacitated to earn wages as a result of her compensable injury until at least September 2, 1993. Also, from Dr. Brooks findings noted above, I would find that claimant's healing period persisted until that time as well.
Because I would find that claimant remained in her healing period and totally incapacitated to earn wages through at least September 2, 1993, I would find that she is entitled to an award of additional temporary total disability benefits from the date of the last payment of such benefits until September 2, 1993. I must therefore respectfully dissent from the majority opinion.
PAT WEST HUMPHREY, Commissioner