CLOUD v. JACKSONVILLE MANUFACTURING CO

The claimant appeals an opinion and order filed by the administrative law judge on June 14, 1994. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. After reviewing this claim, we find that the claimant did prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge's decision must be reversed.

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 she is within her 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). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. 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(6) (1987). The healing period continues until the employee is as far restored as the permanent character of his 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).

In the present claim, the claimant was employed by the respondent employer as a packer, and her duties included packing various kitchenware products, including pans, cookware, and glassware. She sustained an admittedly compensable injury to her right foot on November 19, 1991, when she caught her foot in a pallet, causing her to trip and to fall to the ground in a twisting manner. This resulted in a minimally displaced fracture of the distal fibular.

She was taken to the emergency room, where she came under the care of Dr. Michael Weber, an orthopedic specialist. After the ankle healed, Dr. Weber released the claimant to return to light duty work, with instructions for the claimant to keep her foot elevated. The respondent employer made light duty office work available, and the claimant did return to work. However, after a few weeks in this position, the claimant was reassigned to the packing department, and her right foot began swelling again after approximately one week. The claimant testified that the respondent employer would not allow her to return to Dr. Weber since he had released her, so, on her own initiative, she sought treatment from Dr. Phillip Johnson, also an orthopedic specialist.

Dr. Johnson concluded that x-rays showed "what appears to be reflex sympathetic dystrophy with loss of ossification of the bone throughout the foot and ankle," and he opined that this was "a complication of her ankle fracture." In addition, he attributed the problems the claimant was experiencing to her employment duties, and he opined that it would take one to two years for the reflex sympathetic dystrophy to resolve. With regard to her employment duties, he made the following comments in a report dated May 20, 1992:

This patient returned to our office on May 18, 1992, with increasing pain. I think that she has actually been working too hard. She has been standing and walking for too many hours, and as a result has a lot of swelling and pain in her ankle and foot. For this reason, I am going to request that she be off work until Friday, May 22, 1992, and then she can return to light work at that time. I will see her back again on May 27, 1992, for re-assessment of her ankle and work status.

Then, in a report dated June 9, 1992, Dr. Johnson restricted the claimant to a sedentary job where she could sit, and he restricted her from standing or walking. In this report, Dr. Johnson made the following statements:

Ms. Cloud was seen in our office on May 27, 1992. She is having some difficulty at work with her specific job description. She is having a lot of difficulty with weight bearing for long periods of time and I have changed her work limitations now to reflect that she should have a sedentary job and that she should sit, not stand or walk. I hope that something can be worked out at her job that will allow her to work with these restrictions. I will see her back again in three months.

The respondent employer again assigned the claimant to office work. However, in November of 1992, she was reassigned to a position on the assembly line. She was able to perform her work duties while sitting in a chair, and the respondent employer allowed her to do so. However, she began to experience problems in having consistent access to a chair, and she began to experience increased problems with her ankle and foot as her standing and walking increased. Finally, the claimant testified that her chair was taken away from her in April of 1993, and she left the plant because she did not have access to a chair. In this regard, the claimant testified that her supervisor, Thurman Adams, told her that there would be no more sit down jobs unless the nature of the job necessitated that she work sitting.

Testimony by the respondent employer's employees corroborates the claimant's contentions regarding the inconsistent accessibility of a chair. Joan Llewellyn, the personnel director, testified that her investigation had revealed that the claimant had reported either that no chair was available or that she had to work in a standing position on two occasions. Ms. Cloud also recalled that these problems were discussed during a meeting on April 1, 1993, which occurred after the claimant notified her that she was going home because a chair had not been available during the first one and one-half hours of her shift. In addition, Thurman Adams, the claimant's supervisor testified that he was not aware that the claimant was absolutely restricted to sitting. Instead, he testified that he had been under the impression that she was to sit down as much as possible. Therefore, he admitted to using the claimant's chair in other areas when needed.

In short, we find that a preponderance of the evidence establishes that the claimant continues to experience substantial problems as a result of the compensable injury, and her treating physician, Dr. Johnson has restricted her from walking and standing. Therefore, the claimant is clearly unable to perform the employment duties as she performed them at the time of the compensable injury. Moreover, even though the respondent employer contends that work is available within the claimant's restrictions, the evidence also establishes that the claimant gave them a reasonable opportunity to provide such work. However, the respondent employer failed to take the steps necessary to provide such work, and this failure resulted in repeated exacerbations of the claimant's problems. In addition, Dr. Johnson has opined that she remains in her healing period. Consequently, we find that the preponderance of the evidence establishes that the claimant is totally incapacitated from earning the wages she earned at the time of the injury and that she remains in her healing period. Accordingly, we find that she is entitled to additional temporary total disability compensation.

Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge's decision must be, and hereby is reversed.

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 (1987). 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(b) (1987).

IT IS SO ORDERED.