ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

SHARRION BARNES

APPELLANT

V.

ALMA SCHOOL DISTRICT

APPELLEE

CA 00-1182

SEPTEMBER 19, 2001

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E711749, E905201]

AFFIRMED IN PART; REVERSED

AND REMANDED IN PART

Appellant Sharrion Barnes appeals the order entered by the Workers' Compensation Commission denying her additional benefits regarding an injury sustained in the course and scope of her employment with appellee Alma School District. She argues that the Commission erred in the following ways: (1) in granting appellee a $950 credit for temporary disability benefits paid between August 19, 1998 and October 27, 1998; (2) in denying appellant additional temporary total disability benefits from and after January 6, 1999; and (3) in finding appellant's current right shoulder problems to be non-compensable and unrelated to her admittedly compensable right elbow injury. We affirm as to points one and three; we reverse and remand as to point two.

Our standard of review is well settled. On appeal, we review the evidence in the light most favorable to the Commission's decision and affirm if the decision is supported by

substantial evidence. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). Evidence is substantial if reasonable minds could reach the same conclusion on the same facts. Id. When the Commission denies benefits because the claimant has failed to meet his burden of proof, we affirm the Commission's decision if the decision displays a substantial basis for the denial of relief. Id. The issue is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm. Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). Moreover, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Gansky v. Hi-Tech Eng'g, 52 Ark. App. 147, 916 S.W.2d 124 (1996).

The evidence presented to the Commission revealed the following events. Appellant began working for appellee as a school bus driver in 1992, eventually taking an additional position as a custodian/maintenance worker. She is right-hand dominant. The bus driver job was contracted as a school-year job that ran from August to May of each year. The custodian/maintenance job was a continuous year-round job; the cleaning services were rendered during the school year, and maintenance was performed after school recessed for the summer.

Appellant injured her right shoulder at work on June 3, 1996, when she slipped and fell while washing the roof of a school bus, breaking her fall by grabbing the emergency hatch. She was treated for this injury on June 6 by Dr. Bishop, her family doctor. She wasplaced on light-duty for a week or two. She did not return for any follow-up visits because her shoulder did not bother her any more. No further workers' compensation benefits were paid on this shoulder injury, and she returned to work.

Another work-related injury was sustained the following year on July 28, 1997, while appellant was remodeling the school bathrooms. She picked up a commode in order to move it to a table when it slipped out of her hands; she caught it before it hit the floor. She hurt her right elbow in that incident. Though she worked light-duty for a while post-injury, she was off work and was paid temporary total disability benefits (TTD) from September 20, 1997, through the date of tendon-release surgery performed on March 5, 1998. Appellant's complaint of right shoulder stiffness and pain was recorded in the medical records for the first time in April 1998. Appellant was released from treatment regarding her right elbow on July 8, 1998, and was given a four-percent permanent partial physical impairment rating to her right upper extremity, a rating assessed by Dr. Martimbeau. Upon release, she was given a fifteen-pound weight lifting restriction for her work as a custodian; she was told by Dr. Martimbeau not to return to school bus driving.

On July 20, 1998, appellant entered into contracts renewing her employment as a bus driver commencing on August 18, 1998, through May 31, 1999, and as a custodian/maintenance worker from July 1, 1998, through June 30, 1999. On August 24, 1998, appellant returned to Dr. Martimbeau complaining of pain, for which he gave her medication. Dr. Martimbeau noted that she was currently working within her restrictions but was still unable to drive a school bus. Appellee paid temporary partial disability benefitsfrom August 19, 1998, through October 27, 1998, a time when her doctor recommended that she not perform services as a bus driver. Appellant continued to have pain and stiffness in her right elbow, and began to experience pain in her left elbow. Dr. Martimbeau again opined that she had reached maximum medical improvement in his report of October 28, 1998, stating that her restrictions remained and were permanent. On October 30, 1998, the school district determined that she would continue on light duty in her custodian capacity for the time being.

Appellant presented to Dr. Bishop in November 1998 for treatment for depression, which appellant related to her inability to pay her bills, to deal with creditors, and to cope with losing her home. She was also upset due to the loss of full function of her arm and due to pain that kept her awake at night. Her depression was treated with medication and psychotherapy.

Because of continued problems, now with her left upper extremity resulting from overuse in compensation for her right arm, appellant's treating physician, Dr. Martimbeau, took her off work from December 16, 1998, until January 6, 1999, during which she underwent physical therapy. In Dr. Martimbeau's office note dated December 16, he noted that after her three weeks of being off work, appellant should go back to work mostly as a bus driver on local routes instead of doing janitorial work. Appellee paid for treatment and temporary disability during this period. Dr. Martimbeau thereafter released her on January 6, 1999, but gave her work restrictions that then prevented her from performing anything other than sedentary work. Dr. Martimbeau recommended that she apply for social securitydisability benefits. Appellee, through a school administrator, assisted appellant in her application for such disability benefits, noting in correspondence dated January 12, 1999, that due to her permanent restrictions, the school district could no longer provide her any work within those restrictions.

Appellant continued to complain of significant pain and discomfort. Appellant and appellee agreed that she should undergo an independent medical evaluation under the direction of Dr. Thomas Frazier, an orthopedic surgeon affiliated with the Arkansas Center for Surgery to the Hand and Upper Extremity. On March 29, 1999, Dr. Frazier opined that appellant had not reached maximum medical improvement, and he proposed additional treatment, including possible physical therapy and surgery to her elbow and shoulder to increase the function of her right arm. Dr. Frazier restricted appellant's activities in the interim.

Appellee requested that appellant return to Dr. Martimbeau, and when she presented to him on June 9, 1999, he changed his opinion regarding her healing period and recommended his own plan for physical therapy and surgery on her elbow, a plan different from that suggested by Dr. Frazier. On June 30, Dr. Martimbeau saw appellant and noted right elbow stiffness and right shoulder pain. He took her off work for a month. On July 27, Dr. Martimbeau treated her again for the same complaints, took her off work for another month, and stated that she would eventually need elbow surgery.

Appellant maintained her desire to see Dr. Frazier and follow his plan for treatment. Appellee requested that appellant see an orthopedic specialist, Dr. Collins, for anotherindependent medical examination, which was performed on August 23, 1999. Dr. Collins noted her complex medical problem and the difficulty in assessing cause and effect. On August 31, Dr. Martimbeau agreed with Dr. Collins' conclusions, and proposed to examine appellant under anesthesia to confirm that there was a block of her elbow extension that could be helped by a debridement procedure. On September 29, 1999, Dr. Martimbeau reported that he was scheduling appellant for surgery. On October 12, 1999, appellant notified Dr. Martimbeau that she would not submit to the surgery.

Due to the inability of the parties to reach an agreement, appellant requested a change of physician to Dr. Frazier, additional temporary total disability (TTD) from January 6, 1999, to a date yet to be determined, and other benefits. Appellee resisted certain aspects of the claim and requested affirmative relief as well. The administrative law judge (ALJ) issued a pre-hearing order, which set forth the issues to be litigated: (1) change of physician; (2) additional TTD from January 6, 1999, forward; (3) additional medical benefits; (4) benefits for depression associated with her on-going healing; (5) compensability of bilateral carpal tunnel syndrome; (6) credit to appellant for group benefits paid for treatment for depression; (7) credit to appellee for overpayment of TTD between August 19, 1998, and October 27, 1998; (8) statute of limitations regarding the shoulder injury sustained on June 3, 1996; (9) whether the July 28, 1997, injury caused an aggravation or a reinjury to her shoulder; and (10) attorney's fees. Appellant withdrew the issue regarding carpal tunnel syndrome prior to the commencement of the hearing.

The hearing was conducted on November 8, 1999. Appellee, through insurance adjuster Brenda Sellers, testified that appellee accepted and paid the four-percent permanent partial impairment rating as assigned by Dr. Martimbeau. Sellers testified that the insurance company mistakenly continued to pay temporary partial disability (TPD) from August 19, 1998, through October 27, 1998, in the amount of $950. Sellers also stated the periods of TTD that were paid, which were not at issue before the ALJ. Appellant testified that she had returned to work as a custodian/maintenance worker in the summer of 1998 within the restrictions set by Dr. Martimbeau; she stated that she had also renewed her bus driving contract but was unable to perform that job due to her restrictions when her contract for employment resumed in August 1998. Medical documents, Dr. Frazier's deposition, and insurance documentation were received into evidence.

The ALJ found that appellant's current shoulder problems were a compensable consequence of the treatment rendered for her elbow injury; that the change of physician to Dr. Frazier was approved; that additional TTD from June 30, 1999, through August 30, 1999, was approved, along with a credit for $950 for overpayment of TPD paid from August 19, 1998, through October 27, 1998; that appellant had failed to prove that her depression was causally related to her compensable injuries; and that statutory attorney's fees were owed to appellant. Both parties appealed to the Commission.

The Commission rendered an opinion on July 3, 2000, in which it affirmed the ALJ's findings with the exception of the compensability of the shoulder problems because there were no objective findings to establish the existence of the shoulder problems and that, evenif there were such findings, she failed in her burden to prove that the current shoulder problems were a compensable consequence of the elbow surgery and treatment. Appellant appeals, and we are presented with these issues: (1) the $950 credit to appellee; (2) the denial of TTD from January 6, 1999, to a date yet to be determined; and (3) the denial of compensability regarding the shoulder injury as related to the elbow injury and surgery.

Points I and II - Entitlement to Temporary Total Disability

A claimant is entitled to temporary total disability compensation while she is in her healing period and has not returned to work. Ark. Code Ann. § 11-9-521(a) (Supp. 1999). The healing period is that period of time necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(12) (Supp. 1999). The healing period continues until the claimant is as far restored as the permanent character of her 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. See Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997). The claimant is no longer entitled to receive temporary total disability compensation thereafter, and the persistence of pain alone will not suffice to extend the healing period. Mad Butcher v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The determination of when the healing period ends is a factual question to be decided by the Commission, which will be upheld on appeal if it is supported by substantial evidence. Carroll General Hospital v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).

Temporary disability also includes temporary partial disability, which means that period of time within the healing period when an employee suffers a partial incapacity to earn wages. Nix v. Wilson, 46 Ark. App. 303, 879 S.W.2d 457 (1994). This is authorized by statute in Ark. Code Ann. § 11-9-520, which reads:

"Disability" is defined as incapacity, because of a compensable injury, to earn in the same or any other employment the wages that the employee was receiving at the time of the compensable injury. Ark. Code Ann. §11-9-102(9)(Repl. 1996).

Appellant's first two points on appeal question whether there is substantial evidence to support the findings that (1) appellant was not entitled to temporary partial disability from August 19, 1998, until October 27, 1998; and (2) appellant was not entitled to any temporary total disability on or after January 6, 1999. We affirm on the first issue but reverse on the second issue and remand for the Commission to determine on what date appellant entered a new healing period and whether during such period she was entitled to temporary disability benefits.

We would agree with appellant that she was entitled to receive the temporary partial disability benefits that she was paid during the period beginning August 19, 1998, through October 27, 1998, but for evidence of Dr. Martimbeau's opinion that appellant had reached maximum medical improvement as of July 8, 1998. In order for entitlement to temporarydisability benefits to continue, it is not enough that a claimant has not returned to full employment, because the relevant statute provides for temporary "benefits only during the healing period or until the employee returns to work, whichever occurs first." (emphasis added). Ark. Code Ann. § 11-9-521. Dr. Martimbeau's July 8, 1998, opinion that appellant had reached maximum medical improvement, i.e., her healing period had ended, constitutes substantial evidence in support of the Commission's decision to give appellee a credit for the temporary partial disability benefits paid to appellant during the August - October 1998 period.

We do, however, hold that there is no substantial evidence to support the Commission's finding that appellant was not entitled to temporary disability benefits after January 6, 1999, unless sometime in the future she submits to additional reasonably necessary medical treatment, including surgery, for her elbow and then reenters a healing period. While entitlement to temporary disability benefits ceases at the end of a healing period (or earlier if the claimant returns to work), a claimant may undergo or enter a second, distinct healing period. See Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987).

There is no reasonable dispute that appellant may have entered a new healing period after being examined in 1999. Dr. Frazier opined in March 1999 that appellant had not reached the end of her healing period and needed further treatment, and even Dr. Martimbeau changed his opinion in July 1999, stating that appellant needed additional treatment and perhaps surgery at that time, all with regard to the right elbow injury. That shestill suffers from the effects of her work-related injury and is in need of further treatment is the consensus of all experts who have examined her. It is inconsistent to award appellant a change of physician to Dr. Frazier, who stated that appellant had not reached the end of her healing period, and to authorize additional treatment by him, but then to deny temporary disability benefits after January 6, 1999. It is implicit in the Commission's award, and there is no substantial evidence to the contrary, that appellant entered a new healing period, i.e., that she suffered a recurrence of her elbow-injury symptoms such that her condition was no longer stable and there was treatment prescribed that might improve her condition.

We are convinced that fair minds with the same facts could not conclude, as the Commission did, that appellant had not reached maximum medical improvement and is entitled to treatment and surgery as of March 29, 1999, according to her designated treating physician, Dr. Frazier, but that she was maximally medically improved from the same conditions at all times after January 6, 1999. We see no evidence that substantially supports that conclusion, especially in light of the fact that Dr. Martimbeau subsequently changed his opinion in June 1999, and agreed that appellant needed surgery and ongoing treatment for her compensable injury in agreement with the independent medical examinations.

We remand to the Commission and direct it to render findings on the beginning date of appellant's post-January 6, 1999, healing period as relates to her right elbow; whether she was employed thereafter; and the applicability of Ark. Code Ann. § 11-9-512, which permits the Commission to take into account the unreasonable refusal of a claimant to undergo surgery, in the treatment of a compensable injury. Appellant's entitlement to temporarydisability benefits, or lack thereof, is dependent upon these facts that must be determined upon remand.

Point III - Compensability of Right Shoulder

Appellant's last point on appeal is that her right shoulder was injured as a consequence of her treatment received for the compensable right elbow injury sustained on July 28, 1997. Thus, she argues that this is a compensable consequence and should be paid for in workers' compensation benefits. We disagree with her argument.

For an injury to be compensable, assuming for the sake of argument that this shoulder complaint is related to her compensable elbow injury, there must be objective findings to support its existence. Ark. Code Ann. § 11-9-102(4)(D) and (16). Dr. Frazier's March 29, 1999, independent medical evaluation demonstrated no abnormalities other than decreased range of motion, a test that Dr. Frazier acknowledged could be controlled by the patient, whether active or passive tests were conducted. Likewise, Dr. Martimbeau opined on June 9, 1999, that although appellant complained of right shoulder pain, his examination showed almost complete range of motion and no contracture. Dr. Martimbeau's review of her x-rays in June 1999 revealed no shoulder abnormality, though he did inject cortisone into it. And, Dr. Collins, who appellant saw once pursuant to an independent medical examination conducted on August 23, 1999, noted a substantial difference in the passive and active range of motion tests he conducted, and he opined that there was no evidence of a work-related intrinsic problem related to her shoulder. Dr. Frazier had earlier stated that if there is a significant difference in the ranges achieved on passive and active examination, then thiscould indicate that the patient is manipulating the test. That the Commission found no objective finding to support any shoulder injury is supported by substantial evidence as found in all of the doctors' opinions and tests.

Moreover, even if there were objective findings to support the existence of a right shoulder injury, no physician related these problems to the compensable right elbow injury within a reasonable degree of medical certainty. Appellant is correct when she states that if an injury is compensable, then every natural consequence of that injury is also compensable. See Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The basic test is whether there is a causal connection between the two episodes. Id. This is true even for injuries resulting from medical treatment, as noted in 82 Am. Jur. 2d, Workers' Compensation § 371 (1992). This causal connection is lacking in this instance, and the Commission's finding on this issue is supported by substantial evidence.

At best, Dr. Frazier opined that it was "possible" that the shoulder stiffness and pain was causally connected to the compensable elbow injury or that the compensable injury "may have contributed" to the shoulder contracture. Dr. Frazier's words were, "With regard to the major cause of her shoulder problem, I think she probably has had pain in her shoulder following her surgery either from immobilization of her elbow or using a sling or having pain, any of those conditions can certainly cause a shoulder to become stiff." Dr. Frazier further stated that she would likely benefit from conservative treatment to address the stiffness and pain. If a doctor renders an opinion on causation, he must use language that goes beyond possibilities to establish the reasonable cause of the injury. See Freeman v.Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). This opinion is not stated within a reasonable degree of medical certainty, further supporting the Commission's conclusion. Again, the standard of review requires us to affirm if there is substantial evidence to support the decision of the Commission, not whether we would have decided differently had we sat as the trier of fact or heard the case de novo. See Continental Express, Inc., supra.

Affirmed as to points one and three; reversed and remanded for proceedings consistent with our opinion on point two.

Bird and Vaught, JJ., agree.