Johnson v. Rapid Die & Molding

John E. Jennings, Chief Judge. Linda Johnson suffered an admittedly compensable injury in the form of a back strain and bruised knee when she slipped and fell at work on February 6, 1990. She was released by Dr. Randolph Taylor to return to light work on May 15, 1990, with the restriction that she not lift more than twenty-five pounds. She was laid off work on June 21, 1990, and one month later received a termination notice. Mrs. Johnson continued to have difficulties and on May 9, 1991, Dr. Stephen Cathey diagnosed her as having “low back strain superimposed on preexisting degenerative disc disease without neurological deficit” and “morbid obesity.” In August 1991, Dr. Taylor said: I am going to send her a letter so that she can take it by and get on a weight loss program. I think she is having relative instability in her back due to a combination of her obesity and degenerative disc disease and that she would greatly benefit from losing weight and then reconditioning. The respondents paid temporary total disability through the time Mrs. Johnson returned to work. At a hearing before an administrative law judge on October 15, 1992, the claimant contended that she was entitled to a weight loss program to be paid for by the respondents and that she was entitled to a continuation of temporary total disability. On appeal, the full Commission approved a weight loss program but held that she was not entitled to additional temporary total disability benefits. The sole argument on appeal is “[ajppellant had not reached her healing period and was entitled to additional temporary total disability as found by the administrative law judge.” We hold that the Commission’s decision is supported by substantial evidence and affirm. In the course of its opinion the Commission found that the claimant’s healing period had ended. The sole argument on appeal is simple and straightforward. As the appellant states: “The weight loss program is a ‘way of treatment’ that ‘will improve that condition.’ Until that happens, the healing period has not ended.” The argument is that the claimant still remains within her healing period, not that the Commission was bound to find that the healing period ended at some other time subsequent to her return to work. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Arkansas Highway & Transp. Dept. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. J. A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The determination of when the healing period has ended is a factual determination and is to be made by the Commission. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). When the sufficiency of the evidence to support the Commission’s findings of fact is challenged, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Thurman v. Clark Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). We must uphold those findings unless there is no substantial evidence to support them. Thurman, supra. In May 1991, Dr. Cathey stated, “Since the injury occurred well over a year ago, I believe the patient has reached maximum medical benefit and could be released to return to work whenever she feels she could handle herself there.” In September 1991, both Dr. Taylor and Dr. Carl Goodman expressed the opinion that the claimant had reached “maximum medical improvement.” In the case at bar we hold that the Commission’s finding, that the claimant is not still within her healing period, is supported by the evidence. There is another reason that the decision of the Commission must be affirmed. In Arkansas State Highway Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), the supreme court made it clear that the mere fact that the claimant remains within the healing period does not mean that he or she is entitled to temporary total disability. “Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages.” Breshears, 272 Ark. at 246. Temporary total disability is not based on the claimant’s healing period, but is instead awarded where the claimant is incapacitated because of injury to earn the wages she was receiving at the time of the injury. In the case at bar the Commission expressly found that Mrs. Johnson was not entitled to additional temporary total disability after May 15, 1990. The Commission based this finding on the fact that the claimant had returned to work, her testimony that she would probably still be working for the appellee had she not been laid off, the fact that she subsequently worked part-time for a photographer, and her testimony that she helped her husband at his service station and was physically capable of doing so. We cannot say that fair-minded persons could not reach the conclusion that Mrs. Johnson did not suffer “a total incapacity to earn wages” beyond May 15, 1990. See Breshears, supra. For the reasons stated the decision of the Commission is affirmed. Affirmed. Mayfield, Cooper and Robbins, JJ., dissent.