Ketcher Roofing Co. v. Johnson

John E. Jennings, Chief Judge. Arzo Johnson was employed by Ketcher Roofing as a roofer on August 18, 1992, when he sustained an admittedly compensable injury to his back while lifting materials. He continued to work until about September 18, 1992, when he could no longer tolerate the pain and was sent by his employer to Dr. Scott Carle. Dr. Carle diagnosed him as having a lumbar strain and sciatica and prescribed medication and physical therapy. An MRI scan showed a bulging disc at L3-L4. When Johnson’s condition did not improve Dr. Carle referred him to Dr. John Wilson, an orthopedic surgeon, on October 8, 1992. On that same date Johnson filed a petition for a change of physician to Dr. Edward Hayes, a chiropractor, to which the appellants agreed. Dr. Wilson saw Johnson on October 13, 1992, and stated that he believed Johnson to have a “resolving lumbo sacral strain.” Dr. Wilson prescribed four medicines and told Johnson to increase his activities and return to his normal work activities on October 20, 1992. On the strength of Dr. Wilson’s report, appellant terminated total temporary disability payments as of October 20. Johnson attempted to return to work but when he told his superintendent that his back was still hurting, he was told that there was no light duty available. Johnson first saw Dr. Hayes on October 21, 1992, at which time Dr. Hayes excused him from work. In a report dated December 21, 1992, Dr. Hayes stated that Johnson was “relatively stabilized,” that he had been contacted about Johnson seeing Dr. Wilson again and that he agreed with the decision, and that he felt that conservative treatment would keep the patient relatively pain free. Dr. Hayes also said, “If further treatment, such as surgery, is indicated, then his ability to return to that type work will have to be determined afterwards. My prognosis is very guarded concerning this patient.” Johnson testified that he is continuing to see Dr. Hayes and that the treatment he received has helped his condition. He also testified that he was as yet unable to return to work. Mr. Johnson is fifty-nine years old and has a third grade education. He can neither read nor write. Whether an employee’s healing period has ended is a factual determination and is to be made by the Commission. Johnson v. Rapid Die & Molding, 46 Ark. App. 244, 878 S.W.2d 790 (1994). 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). In the case at bar the Commission obviously believed the claimant’s testimony that treatment he was receiving from Dr. Hayes was helping his condition. Clearly, the Commission may consider the claimant’s testimony and choose to believe it. We cannot say that the Commission’s determination that Johnson’s healing period has not ended is not supported by substantial evidence. Affirmed. Pittman, J., and Bullion, S.J., dissent.