St. Vincent Health Systems v. Linda K. Jobe

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ST. VINCENT HEALTH SYSTEMS

APPELLANT

V.

LINDA K. JOBE

APPELLEE

CA05-823

February 8, 2006

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F105594]

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellee in this workers' compensation case was employed by appellant hospital as an LPN when she sustained an admittedly compensable back injury while attempting to move a patient on April 26, 2001. She was diagnosed with a herniated disc at L5-S1 and, after failing to respond to conservative treatment, underwent spinal-fusion surgery at L5-S1, performed by Dr. McCarthy on March 21, 2002. Appellee continued to suffer from severe pain and post-operative difficulties and was subsequently diagnosed with and treated for bilateral tarsal-tunnel syndrome caused by her compensable injury. Appellee underwent a left tarsal-tunnel release performed by Dr. Kulik on December 26, 2002. On March 31, 2003, Dr. Kulik opined that appellee had reached maximum medical improvement of her tarsal-tunnel syndrome with permanent restrictions of minimal activity, and that she continued to have back problems that required further care by Dr. McCarthy. Appellee saw Dr. McCarthy for follow-up care on August 6, 2003, when x-rays were taken that suggested that the fusion at L5-S1 had not completely consolidated. Appellee remained under care. However, appellant terminated payment of medical benefits on September 15, 2003, and of

temporary-total disability benefits after November 2003. Appellee filed a claim for additional medical and temporary-total disability benefits, which were awarded by the Commission. On appeal, appellants contend that there is no substantial evidence to support the Commission's findings that appellee is entitled to additional temporary-total disability and medical benefits because, they assert, appellee is neither within her healing period nor totally incapacitated to earn wages. We disagree, and we affirm.

Temporary-total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. The healing period is that period for healing of an accidental injury that continues until the employee is as far restored as the permanent character of his injury will permit; it ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition. Farmers Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Carroll General Hospital v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).

In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the findings arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).

In concluding that appellee remained in her healing period, the Commission found that appellee suffered continuing pain, that the diagnostic tests indicated that her spinal fusion had not completely solidified, that Dr. McCarthy had never opined that she had reached maximum medical improvement for her back injury, and that Dr. McCarthy still had treatment to offer her. Although there was a conflict in the medical testimony on this issue, such conflicts are for the Commission to resolve. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987). Our review of the record shows that the Commission's findings of fact are supported by substantial evidence, and we hold that they support the Commission's conclusion that appellee remains within her healing period.

We likewise hold that substantial evidence supports the Commission's finding that appellee is totally incapacitated to earn wages. Appellee testified that her condition has steadily declined since the back surgery, that she was unable to work, and that none of her physicians has informed her that she was released to work. Furthermore, Dr. Safman stated on May 3, 2003, that appellee was "not competitive for vocational re-entry." If, during the period while the body is healing, the employee is unable to perform remunerative labor with reasonable consistency and without pain and discomfort, his temporary disability is deemed total. Farmers Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Viewing the evidence, as we must, in the light most favorable to the Commission's findings, we cannot say on this record that the Commission erred in finding appellee to be totally incapacitated to earn wages.

Affirmed.

Glover and Roaf, JJ., agree.