NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CA00-1017

APRIL 25, 2001

RICHARD CAMPBELL

APPELLANT AN APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [E806883]

v.

UNITED PARCEL SERVICE, INC.

APPELLEE AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Appellant Richard Campbell appeals a decision of the Workers' Compensation Commission denying his claim for certain medical expenses related to the treatment of a compensable injury and for additional benefits for temporary total disability. He argues that the decision of the Commission is not supported by substantial evidence. We affirm in part and reverse and remand in part.

Campbell, age fifty-three on the date of the hearing before the ALJ, was employed with United Parcel Services (UPS) and was responsible for delivering and collecting packages. On May 27, 1998, while lifting and moving packages, he suffered an injury to hislower back that UPS conceded was a compensable injury. Appellant informed UPS of the injury, and UPS arranged for him to see Dr. Kenneth Turner. Dr. Turner initially found that appellant suffered from muscle spasms in his mid-back and diagnosed lower thoracic and upper lumber muscle strain. Dr. Turner recommended medication and chiropractic care with Dr. David Underhill, in addition to lifting and stooping restrictions. After appellant was unable to return to work as quickly as Dr. Turner had expected, the doctor referred him to physical therapy with Seth Coulter.

By July 2, 1998, Dr. Turner had noted significant improvement in appellant's condition, but noted that appellant continued to experience pain in his lower back and right hip. Dr. Turner diagnosed appellant's condition as right sacroiliac instability, and on July 30, 1998, opined that appellant needed to undergo an MRI of the lumbar spine to document the lack of a disc injury. The doctor also recommended that appellant see an orthopedic surgeon.

A report of the MRI, dated August 5, 1998, revealed an essentially negative examination, with minimal desiccation of the L5-S1 with tiny focal bulge centrally, apparently subligamentous and of doubtful significance. Dr. David Redding, a neurosurgeon, examined appellant on August 31, 1998. Dr. Redding concluded that appellant was a healthy and fit man who moved without restriction in the examination room without any appearance of pain. The only pain Dr. Redding observed occurred when appellant bent forward at the waist or performed straight leg raising tests. Even with this indication of pain, Dr. Redding concluded that appellant's range of motion was not restricted. Dr. Redding concluded thatappellant presented no objective signs of injury and nothing definite on which to focus additional treatment. Dr. Redding encouraged appellant to continue his stretching exercises and walk two to three miles daily. Dr. Redding also indicated that appellant might have a sacroiliac injury as diagnosed by Dr. Turner and stated that he wished to see appellant again in one month.

Based on Dr. Redding's report, UPS terminated temporary total disability benefits as of August 31, 1998, and discontinued paying appellant's medical expenses on September 4, 1998. After UPS stopped paying medical benefits, appellant continued to see Dr. Underhill, the chiropractor. Dr. Underhill believed that appellant's condition would take longer to heal because of his age and because his injury was to a weight bearing area.

Appellant subsequently sought to have UPS pay for the medical expenses he incurred from September 1, 1998 until April 8, 1999, the date that Dr. Underhill opined that appellant's healing period ended. Appellant also sought temporary total disability benefits for the period. Based on the notes of Drs. Underhill and Redding indicating that appellant's condition had not fully healed by August 31, 1998, the Commission found that appellant continued to require medical care after September 1, 1998. The Commission also found, however, that the treatment appellant received after January 17, 1999, was for the effects of a mountain bike accident in which he flew over the handlebars of the bike and landed on his head and upper back rather than for his compensable injury. Moreover, the Commission considered the mountain bike accident relevant to the issue of temporary total disability. In light of appellant's mountain biking, as well as his participating in three to four-hourmotorcycle trips and playing tennis, the Commission concluded that appellant's level of activity was inconsistent with an incapacity to earn wages. Therefore, the Commission found that appellant was not entitled to temporary total disability benefits.

When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. White v. Frolic Footwear, 59 Ark. App. 12, 952 S.W.2d 190 (1997). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). The Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Johnson v. Democrat Printing & Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997).

Medical Expenses

Appellant argues that the Commission erred in its finding that the treatment provided by Dr. Underhill after January 17, 1999 was for injuries stemming from his bicycle accident rather than the effects of his compensable injury. Appellant supports this argument by citing his testimony and the deposition testimony of Dr. Underhill indicating that the bicycle injury was to appellant's neck and upper back and not his lower back. We do not agree.

In his deposition, Dr. Underhill stated that even had the accident not happened, he would have continued to see appellant for his compensable injury. As noted by appellant, Dr. Underhill also stated, however, "So, I think, definitely, you know, the bike incidentprobably momentarily aggravated it; but, I don't think it necessarily increased any instability to him at all." Moreover, Dr. Underhill's notes reveal that after the January 17, 1999 accident, appellant only reported pain in his lower back on two occasions, January 18, 1999, and January 24, 1999. After January 24, 1999, Dr. Underhill's treatment was limited to appellant's neck and upper back. In light of Dr. Underhill's testimony that appellant's bicycle accident probably aggravated appellant's lower back injury and his notes indicating that his treatment of appellant's lower back ended one week after the accident, substantial evidence supports the Commission's finding that appellant's treatment after January 17, 1999, was for injuries caused by his bicycle accident rather than for his compensable injury. Temporary Total Disability Benefits

Except those instances in which an employee suffers a permanent scheduled injury, the period of temporary total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. See Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, ____ S.W.3d ___ (2001); Stafford v. Arkmo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996). In denying appellant's request for temporary total disability benefits for the entire requested period, the Commission adopted the findings and conclusions reached by the ALJ. In his opinion, the ALJ stated:

Although the claimant's condition may have justified additional treatment, his activities are not consistent with total incapacity to earn wages. The record shows that in addition to the bicycle incident, the claimant was also involved in other vigorous activity such as motorcycle trips lasting as long as 3 to 4 hours, and tennis. It would be necessary to engage in speculation and conjecture on behalf of the claimant in order to find that he wastotally incapacitated to earn wages at a time when he was otherwise fairly physically active. For that reason his request for temporary total disability benefits should be denied.

We agree with the conclusion that appellant's level of physical activity is inconsistent with his claim that he is incapable of earning wages. We conclude, however, that the Commission's denial of temporary total disability for the entire period is not supported by substantial evidence.

In High Capacity Products v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998), this court stated that while a claimant remains off work and sought continued medical treatment for a compensable injury there was no need for any of the subsequent treating physicians to opine that he should be off work. Thus, when an injured employee has been instructed to remain off work, as was the case in the instant action, there is no need for the employee's physicians to continually state that the claimant needs to be off work.

The evidence relied upon by the ALJ and the Commission to deny appellant's claim for temporary total disability gave no indication that appellant engaged in any strenuous activity before January 1999. The only instance of physical activity for which a time was testified to was appellant's bicycle accident. Completely absent from the record is any evidence relevant to appellant's activity level from September 1998 until January 1999. Therefore, we conclude that the Commission's denial of temporary total disability benefits beginning in September 1998 based on appellants level of physical activity is not supported by substantial evidence.

Affirmed in part; reversed and remanded in part.

HART and BAKER, JJ., agree.