Opinion
CLAIM NO. F014636
OPINION FILED NOVEMBER 8, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by HONORABLE CAROL WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The claimant appeals and the respondents cross-appeal an Administrative Law Judge's opinion filed May 29, 2002. The Administrative Law Judge found that the claimant was allowed to change physicians from Dr. P. B. Simpson to Dr. Wayne Bruffett. However, the Administrative Law Judge found that the claimant failed to prove that additional medical treatment was reasonably necessary in connection with his compensable injury. As we interpret the analysis of the Arkansas Court of Appeals in Collins v. Lennox Industries, Inc., 77 Ark. App. 303, ___ S.W.3d ____ (2002), the claimant is entitled to at least one visit with Dr. Bruffett at the respondents' expense. We therefore modify the finding of the Administrative Law Judge.
I. HISTORY
The parties stipulated that Larry Anthony Buckley, age 28, sustained a compensable injury on or about August 10, 2000. Mr. Buckley testified that he injured his back as a result of lifting and stacking heavy bags of flour. The claimant was eventually referred to Dr. P. B. Simpson, Jr. The claimant testified that he underwent surgery from Dr. Simpson in February 2001, but the claimant did not report good results from surgery. Dr. Simpson discharged the claimant from his care in September 2001.
Mr. Buckley claimed entitlement to additional worker's compensation. The claimant contended that he was entitled to a change of physician from Dr. Simpson to Dr. Bruffett. The claimant contended that additional medical treatment was reasonably necessary in connection with his compensable injury.
The parties stipulated that the respondents had not contracted with a managed care organization, and that Dr. Bruffett was a member of an MCO. The respondents contended that they had paid all appropriate benefits. The respondents contended that follow-up treatment had not been recommended, and that additional medical treatment was not reasonably necessary.
The parties agreed to litigate the following issues:
(1) Whether the claimant was entitled to a change of physician;
(2) Whether additional medical treatment was reasonably necessary in connection with the compensable injury; and
(3) Attorney's fees.
After a hearing before the Commission, the Administrative Law Judge found that "Pursuant to A.C.A. § 11-9-514(3)(A)(iii), the claimant is allowed to change physicians from Dr. P.B. Simpson to Dr. Wayne Bruffett." However, "Claimant has failed to proved by a preponderance of the evidence that additional medical treatment is reasonably necessary in connection with his compensable injury."
The claimant appeals the Administrative Law Judge's denial of additional medical treatment. The respondents appeal the Administrative Law Judge's granting of a change of physician.
II. ADJUDICATION
A. Change of physician
Ark. Code Ann. § 11-9-514(a)(3)(A) provides:
(iii) Where the employer does not have a contract with a managed care organization certified by the commission, the claimant employee, however, shall be allowed to change physicians by petitioning the commission one (1) time only for a change of physician, to a physician who must either be associated with any managed care entity certified by the commission or be the regular treating physician of the employee who maintains the employee's medical records and with whom the employee has a bona fide doctor-patient relationship demonstrated by a history of regular treatment prior to the onset of the compensable injury, but only if the primary care physician agrees to refer the employee to a physician associated with any managed care entity certified by the commission for any specialized treatment, including physical therapy, and only if the primary care physician agrees to comply with all the rules, terms, and conditions regarding services performed by any managed care entity certified by the commission.
(b) Treatment or services furnished or prescribed by any physician other than the ones selected according to the foregoing, except emergency treatment, shall be at the claimant's expense.
The Administrative Law Judge cited Collins v. Lennox Industries, Inc, 77 Ark. App. 303, ___ S.W.3d ___ (2002). In Collins, the Court of Appeals found that Ark. Code Ann. § 11-9-514(a)(3)(ii) established an absolute, statutory right to a one-time change of physician under Act 796, where the employer has contracted with a managed care organization and has exercised the right to select the initial primary-care physician.
Since the respondents in the present matter have not contracted with a managed care organization, the Administrative Law Judge correctly noted that Ark. Code Ann. § 11-9-514(a)(3)(a)(iii) applies to the claim: "The record reflects that Dr. Bruffett is a member of a managed care organization which has been certified by the Commission. Therefore, pursuant to A.C.A. § 11-9-514(a)(3)(A)(iii), claimant is hereby granted his change of physician to Dr. Bruffett."
The respondents argue on appeal that the Collins ruling applies only to changes of physicians under Ark. Code Ann. § 11-9-514(a)(3)(a)(ii), but not under Ark. Code Ann. § 11-9-514(a)(3)(a)(iii). Nevertheless, the language of (a)(iii) is substantially identical to (a)(ii), stating, "Where the employer does not have a contract with a managed care organization certified by the commission, the claimant employee, however, shall be allowed to change physicians . . ." (our emphasis) by petitioning the Commission one time for a change of physician. The petition must be for a physician either (1) associated with a managed care entity, or (2) be the regular treating physician. The language of the change of physician statute is plain and unambiguous. American Standard Indemy. v. Post, 78 Ark. App. ___, ___ S.W.3d ___ (2002). The claimant petitioned for a change of physician to Dr. Bruffett, and Dr. Bruffett is associated with a managed care entity.
There has been no argument raised before the Full Commission that Dr. Bruffett lacks the expertise or specialization to treat the claimant's work-related injury. Under these circumstances, the Full Commission affirms the Administrative Law Judge's finding that the claimant is entitled to change physicians from Dr. Simpson to Dr. Bruffett.
B. Reasonably necessary medical treatment
Ark. Code Ann. § 11-9-508(a) states that the employer shall promptly provide such medical treatment as may be reasonably necessary in connection with the injury received by the employee. In the recent case of Collins v. Lennox Industries, Inc., 77 Ark. App. 303, ___ S.W.3d ___ (Ark.App. May 8, 2002), the Commission found that an injured worker had failed to establish that he was entitled to any additional medical treatment, and on that basis, denied the claimant's request for a one-time change of physician. In reversing the decision of the Full Commission, the Court stated:
Because we find that a one-time change of physician is mandatory, we hold that the Commission's finding that the employer had fulfilled the obligation of providing adequate medical treatment, diagnostic testing, and consultation with specialists, under the provisions of Ark. Code Ann. § 11-9-508 was not supported by substantial evidence and accordingly reversed. Therefore, we reverse and remand with instructions to order a change of physician.
As we understand the plain language of the Court's reasoning inCollins, we are without authority to find that the respondent in the present case has fulfilled its obligation of providing adequate medical treatment for the claimant's compensable injury prior to the claimant receiving his mandatory one-time change of physician. Absent any further guidance from the courts, we are therefore constrained to agree with the claimant's argument on appeal in the present case that the claimant is entitled to at least a one-time visit to Dr. Bruffett at the respondent's expense in order to determine what proposed treatment, if any, Dr. Bruffett might have which would be reasonably necessary for the claimant's compensable injury.
Based on our de novo review of the entire record, the Full Commission finds that the claimant is entitled to change physicians from Dr. P. B. Simpson to Dr. Wayne Bruffett. We therefore affirm, as modified, the opinion of the Administrative Law Judge.
For prevailing on this appeal before the Full Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996), in addition to the fee awarded by the Administrative Law Judge.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.