Opinion
CLAIM NO. F107611
OPINION FILED MARCH 17, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE MICHAEL BOYD, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by HONORABLE J. R. WILDMAN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and vacated in part.
OPINION AND ORDER
The claimant appeals portions of an opinion and order filed by the Administrative Law Judge on September 27, 2002. In that opinion and order, the Administrative Law Judge found that the claimant is entitled to a one-time change of physician from Dr. Bruce Safman to Dr. Edward Saer. In addition, the Administrative Law Judge found that the preponderance of the evidence reflects that no additional medical treatment would be reasonably necessary or related to the claimant's compensable injury. The claimant has appealed that portion of the Administrative Law Judge's opinion finding that the preponderance of the evidence reflects that no additional medical treatment would be reasonably necessary or related to the claimant's compensable injury. The respondents have not cross-appealed the Administrative Law Judge's finding that the claimant is entitled to a one-time change of physician from Dr. Safman to Dr. Saer.
After conducting a de novo review of the entire record, we find that there is no appeal of the Administrative Law Judge's finding that the claimant is entitled to a one-time change of physician from Dr. Safman to Dr. Saer. Therefore, the Administrative Law Judge's decision in this regard is affirmed. However, for the reasons discussed below, we also find that the Administrative Law Judge erred in making findings as to whether or not additional medical treatment would be reasonably necessary or related to the claimant's compensable injury at a hearing only seeking a change of physician. Therefore, we find that the Administrative Law Judge's decision in this regard should be vacated. Furthermore, absent any further guidance from the Arkansas courts, we find that the respondents are liable for the initial evaluation of Dr. Saer provided pursuant to the change of physician.
The relevant facts in this case are not in dispute. The claimant sustained a compensable injury on June 28, 2001 when she slipped and fell on her backside. She was sent by the company to Dr. Yelvington for treatment that same day at Stuttgart Medical Clinic. She was later referred to Dr. Hefley, who referred her to Dr. Saer.
The claimant saw Dr. Saer on several occasions, and Dr. Saer then attempted to refer the claimant for pain management with a specialist in his clinic. However, the respondent intervened in this referral, and instead required the claimant to see Dr. Bruce Safman. There is no dispute that the claimant did not receive any relief from Dr. Safman's treatments, and there is no dispute that the claimant and Dr. Safman developed a poor relationship. The claimant therefore filed a request for a change of physician to the Arkansas Workers' Compensation Commission. Pat Capps Hannah, Administrator of the Medical Cost Containment Division at the Arkansas Workers' Compensation Commission, issued a letter to Ms. Gordon and to the respondent on December 10, 2002 approving a change of physician pursuant to Act 1167 of 1999, and stating that the claimant's treating physician was being changed from Dr. Bruce Safman to Dr. Edward Saer. Ms. Hannah's letter noted that Dr. Saer was a member of the respondents' certified managed care organization. Ms. Hannah's December 10, 2002 letter also contained a scheduled appointment date for the claimant to see Dr. Saer.
The respondents appealed the change of physician provided by Medical Cost Containment and requested a hearing, contending that no further medical treatment, including the change of physician, was reasonably necessary for treatment of the claimant's compensable injury. Prior to the hearing in this case, the claimant kept her appointment with Dr. Saer scheduled by the Medical Cost Containment Division of the Commission. Dr. Saer also apparently ordered a CT Scan and has again referred the claimant to a pain management specialist.
The Arkansas Court of Appeals has previously interpreted that a one-time change of physician is mandatory. See Collins v. Lennox Industries, Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002). Although the Arkansas Court of Appeals has not yet addressed the issue, a majority of the Full Commission has also previously interpreted Collins v. Lennox Industries, Inc., supra, as providing that an injured worker receiving a mandatory change of physician is entitled to at least one visit with the new physician at the respondents' expense. See Kemberly M. Brown v. Wal-Mart, Inc., Full Workers' Compensation Commission, Opinion filed October 18, 2002 (W.C.C. No. E803946) and Larry Buckley v. Hole-in-One Donut Co., Full Workers' Compensation Commission, Opinion filed November 8, 2002 (W.C.C. No. F014636). In Brown, supra, the Full Commission explained:
In reversing the decision of the Full Commission [in Collins v. Lennox Industries, Inc., supra], 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 reverse. . . .Therefore, we reverse and remand with instructions to order a change of physician.
As we understand the plain language of the Court's reasoning in Collins, 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 her 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. Citty at the respondent's expense in order to determine what proposed treatment, if any, Dr. Citty might have which would be reasonably necessary for the claimant's compensable injury.
We note that in the present case, the Administrative Law Judge's finding on September 27, 2002 that the claimant is entitled to a change of physician to Dr. Saer, but that no additional treatment from Dr. Saer or otherwise would be reasonably necessary for treatment of the claimant's compensable injury, appears to be inconsistent with the interpretation of a claimant's right to a change of physician and at least one evaluation at the respondents' expense as subsequently interpreted by the Commission on October 18, 2002 in Kemberly M. Brown v. Wal-Mart, Inc., supra.
Absent any further guidance from the Courts, we interpret from Collins, supra and Brown, supra, that a one-time change of physician is mandatory, and that the respondents may not assert an argument that no additional treatment is reasonably necessary as a defense to a request for a mandatory change of physician at a hearing where the only benefit sought by the claimant is a mandatory change of physician. In the present case, the claimant is instead entitled to at least one visit with Dr. Saer at the respondents' expense. Thereafter, if the respondents determine to controvert any treatment or referrals provided by the new treating physician after the one-time evaluation, the claimant may request another hearing at which the claimant will have the burden of proving by a preponderance of the evidence that additional medical treatment (beyond the initial evaluation) proposed by Dr. Saer is reasonably necessary for treatment of the claimant's compensable injury.
In reaching this conclusion, we note that in the present case, it so happens that the claimant has already seen Dr. Saer for her one-time evaluation, and as discussed above, Dr. Saer apparently ordered a CT scan and has also proposed additional referral for pain management. Nevertheless, consistent with the prior opinions of the Commission in Brown, supra and Buckley, supra, we find that the respondents are liable for the first office visit the claimant obtained from Dr. Saer in the appointment scheduled by Medical Cost Containment. Furthermore, we make no findings at this time on the reasonable necessity of the CT scan that Dr. Saer apparently ordered, or on the reasonable necessity of any additional treatment or referrals that Dr. Saer made as a result of that initial evaluation.
On this point, we note that the injured worker bears the burden of establishing entitlement to additional medical treatment, and medical benefits are only owed on treatment that is reasonably necessary for a compensable injury. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). In addition, the claimant, who bears the burden of proof, is normally in a position to determine when to present a claim for additional benefits, including any claim where the claimant has the burden of proving the reasonable necessity of additional treatment. In the present case, the claimant's attorney made clear during the course of clarifying discussion between the Administrative Law Judge and the attorneys at hearing that the claimant was only interested in resolving the change of physician request to Dr. Saer, and was not interested in litigating the reasonable necessity of any additional treatment that the claimant might or might not receive in the future. In this regard, the claimant's attorney explained on page 33 of the hearing transcript:
Well, I understand that, Judge, but if you go back and decide, and I am not against how you have laid out how you will decide the issues, in other words address it as if you were addressing it before she went to see Doctor Saer to make that determination, but if you do that, then it seems to me that the first decision on making the change of physician request, you make that decision whether or not that is appropriate, and then we have the benefit of these other Doctor Saer's records about whether or not his referrals are appropriate, and I just think that is a different issue. I think that is something that we would address down the road. If you say the Saer visit was approved, then I think at that point, Mr. Wildman's client at that point would have the opportunity to either accept it or not.
In summary, where the only additional treatment an injured worker seeks at a hearing is a mandatory change of physician under a state law which now guarantees a change of physician, we find it premature for the employer to attempt to require the injured worker to prove by a preponderance of the evidence the reasonable necessity of future medical treatment at that change of physician hearing, and we find it premature for an Administrative Law Judge to make findings on that issue solely at the respondents' request.
For the foregoing reasons, we find that the reasonable necessity of additional treatment was not an issue ripe for consideration at a hearing for a change of physician in light of the statutory interpretations in Collins, supra, Brown, supra, and in Buckley, supra, and in light of the claimant's attorney's clarification at the hearing that the claimant would prefer not to join the issue of reasonable necessity of future treatment with the change of physician request at a single hearing. We, therefore, vacate the Administrative Law Judge's findings in their entirety regarding the reasonable necessity for additional medical treatment for this claimant based on evidence presented at the change of physician hearing.
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).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
Commissioner Turner concurs.
CONCURRING OPINION
I concur with the decision to vacate the Administrative Law Judge's finding that additional medical treatment is not reasonably necessary. I also agree that an injured worker receiving a mandatory change of physician is entitled to at least one visit with the new physician at respondent's expense.
There is no dispute on appeal about whether claimant has an absolute right to a change of physician or whether that change should be to Dr. Saer. Respondent has attempted to defeat this absolute right to a change of physician by raising as a defense the allegation that further medical treatment is not reasonably necessary in connection with the compensable injury. This appears to be contrary to the opinion of the Arkansas Court of Appeals in Collins v. Lennox Industries, Inc. 77 Ark. App. 303, 75 S.W.3d 204 (2002). Further, even if it is proper to consider this issue as a defense at this time, I find that claimant has met her burden of proving that additional medical treatment is reasonably necessary.
The route this claim has taken is becoming all too familiar in Arkansas. Claimant sustained an admittedly compensable injury and respondent directed her to its company physician. Claimant was eventually referred to Dr. Saer, an orthopedic surgeon. When Dr. Saer determined that claimant was not a surgical candidate, he referred her to a pain management specialist. Respondent did not approve of the physician to whom Dr. Saer referred claimant and demanded that claimant submit to "treatment" from Dr. Safman, a different pain management physician.
Initially, I point out respondent's approval or authorization of a treating physician's referral is neither necessary nor desirable. Respondent cannot be permitted to dictate each and every aspect of medical care, in particular a treating physician's referrals. It must be remembered that in the present case, respondent did not object to a referral to a pain management specialist. Respondent objected to the referral to a specialist other than Dr. Safman. However, claimant, to her credit and possible detriment, acquiesced to respondent's demands that she come under the care of Dr. Safman. In hindsight, it is probably advisable for injured workers to immediately file a petition for a change of physician, whenever faced with a similar situation.
It is obvious why respondent wants to steer injured workers to Dr. Safman. A frequent grievance of injured workers is that Dr. Safman is condescending toward them, he ignores their complaints, and he often humiliates them. The doctor/patient relationship quickly deteriorates, and Dr. Safman documents a patient who has no objective findings, has reached maximum medical improvement, and can return to any work without restrictions. This has happened in the present case.
In trying to get relief for her condition, as well as get away from Dr. Safman, claimant filed a petition for a change of physician. In response to a question about to whom she wanted to change, Claimant said the bottom line is that she wants a change from Dr. Safman. Respondent's reply to the change of physician was to assert that further treatment is not reasonably necessary and it has Dr. Safman's reports as proof of the allegation.
I believe Collins, supra, stands for the proposition that respondent's assertion that further medical treatment is not reasonably necessary is not an appropriate defense to a petition for a change of physician. In Collins, the Commission denied claimant's request for a one-time change of physician on a finding that claimant failed to prove that additional treatment would be reasonably necessary. The Court held that the Commission's finding that the employer had fulfilled its obligation to provide 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.
In the present case, the Commission has actually granted claimant's petition for a change of physician and authorized Dr. Saer as claimant's treating physician. However, this would be a meaningless gesture, if the Commission also refused to allow claimant to see the new physician at least one time at respondent's expense to determine what additional treatment, if any, might be indicated. Therefore, this issue is not a proper defense to a petition for a change of physician, especially where, as here, claimant specifically objected to the issue being raised and considered along with her petition.
Even if the issue is a proper one for consideration at this time, I find that claimant has met her burden of proving that additional treatment is reasonably necessary in connection with the compensable injury. Claimant saw Dr. Saer initially on September 4, 2001. Dr. Saer's physical examination revealed a slightly cooler right distal lower extremity, a slightly diminished right patella reflex, a diminished right ankle reflex, and diminished sensation in the right anterior thigh. Dr. Saer ordered a bone scan. Claimant returned to Dr. Saer for follow-up on September 25, 2001. Even though the bone scan noted increased isotope activity, Dr. Saer described the scan as being "basically negative." However, Dr. Saer opined that claimant "does need further treatment." Since claimant's condition was not going to require any surgical intervention, Dr. Saer recommended that claimant see a pain management specialist. At this point, respondent intervened and demanded that claimant submit to Dr. Safman.
Claimant first saw Dr. Safman on October 8, 2001. The tone of Dr. Safman's report was not encouraging.
I spoke to the patient about her symptoms. There is no objective pathology discerned either on testing or on examination. I am the fourth physician she has seen and nothing seems to be helping her. I have related to her that I would return her to work, 4 hours a day, with a 20-pound lifting restriction. I may try Effexor if these medications are not helpful. Beyond that, I would have little else to offer her.
On October 22, 2001, claimant returned to Dr. Safman, who reported the following:
I have related to the patient that she has no objective pathology. She has had x-rays of her hips and has been worked up by 4 physicians. I will try her on Effexor. Beyond this, I believe that she is at maximum medical improvement. In the absence of objective pathology, I have related (sic) her that I would have no basis upon which to restrict her vocational endeavors and there would be no disability rating. I will reassess her in 2 weeks.
Claimant saw Dr. Safman one more time on November 5, 2001. The complete deterioration of the relationship was evident.
This patient reports that she has already been to the Worker's Compensation Commission to have her physician changed again to Dr. Saer. He apparently had dismissed her from his care, thinking that she had a lumbar strain. This patient has had x-rays of the back and hip before, which were normal. In the absence of objective pathology and only subjective symptoms, I will declare her at maximum medical improvement. I have returned her to full duty, as I do not have any objective basis to put her on any restrictions. The patient was not happy with this. She left, stating that "I will be back to haunt you."
As can be seen, Dr. Safman did not actually attempt to treat claimant's condition, even though Dr. Saer noted objective findings and believed claimant needed additional treatment. In my opinion, claimant has not had the benefit of a genuine effort at treatment by a pain management specialist. When claimant presented to Dr. Saer as a result of the Commission granting her a change of physician, Dr. Saer again recommended that her care be provided by a pain management specialist. Of course, respondent had already controverted claimant's entitlement to any additional benefits. Based on the above evidence, I would find that claimant has proven by a preponderance of the evidence that she is entitled to additional medical treatment. See Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant was entitled to additional medical treatment. Based upon my de novo review of the record, I would affirm the decision of the Administrative Law Judge in all respects.
In my opinion, the Commission has the authority to find that the respondent in the present case has fulfilled its obligation of providing adequate medical treatment. The Courts have offered no guidance; however, my interpretation of Collins v. Lennox Industries, Inc., 77 Ark. App. 303, ___ S.W.3d ___ (May 8, 2002) and the applicable statutes require the claimant to prove that additional medical treatment is reasonable and necessary.
Ark. Code Ann. § 11-9-704(c)(3) specifically provides:
Administrative law judges, the commission, and any reviewing courts shall construe the provision of this chapter strictly.
In construing these requirements in section 514, I recognize that the basic rule of statutory construction requires one to give effect to the intent of the legislature. Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2002) states that we are to construe the workers' compensation statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed. Edens v. Superior Marble Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). The doctrine of strict construction is to use the plain meaning of the language employed. Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Where the language of a statute is unambiguous, legislative intent can be determined from the ordinary meaning of the language used. Leathers v. Cotton, 332 Ark. 49, 52, 961 S.W.2d 32, 34 (1998). In considering the meaning of a statute, we are to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute, if possible.
Under the present law, a claimant may petition for a change of physician, and the change "shall" be granted if the proper evidence is established regarding the new selected doctor. In Collins, the Court found that a one-time change was mandatory. However, the change of physician section of the statutes only addresses whether the physician from whom the claimant seeks treatment will be an "authorized" treating physician. The change of physician section does not address whether the respondent must pay for the treatment rendered by the new doctor. My review of the change of physician statute fails to reveal any provision, expressed or implied, which addresses the respondent's responsibility for payment of medical services. Ark. Code Ann. § 11-9-514 only addresses authorized physicians and the process for changing authorized treating physicians.
Ark. Code Ann. § 11-9-508 sets forth the employer's liability for medical services. This section provides, in pertinent part:
(a)(T)he employer shall promptly provide for an injured employee such medical services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.
Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees' injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The treatment sought must be for reasonably necessary medical treatment in connection with the compensable injury in order for the respondent to be liable for payment of the treatment.
When these two statutes are read in conjunction with one another and strictly construed, I find that the treatment sought from the new authorized physician must be for reasonably necessary medical treatment.
The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable necessary. Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 ( D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, August 27, 1993 ( D703346). In workers' compensation cases, the burden rests upon the claimant to establish his claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, the Commission must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 ( D512553). Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury, may constitute reasonably necessary medical treatment.
In the case presently before us, the claimant continues to complain of pain primarily in her right hip. At the time of the hearing, she was working 40 hours a week with the respondent-employer, and as of January 7, 2002, she was not taking any pain medicine other than over-the-counter Tylenol. The preponderance of the evidence reflects that all of the claimant's diagnostic tests showed evidence of degeneration in her lower back. The claimant was diagnosed as having a lumbar sprain. The whole body bone scan taken of the claimant in August, 2001, showed mild degeneration and arthritis in the claimant's spine. It appears that neither Vioxx, Celebrex, nor physical therapy helped the claimant. In September, 2001, Dr. Saer stated that he did not recommend surgery and, "I really don't think I have much else to offer her." He recommended that she see a pain management doctor. The claimant went to see a pain management specialist, Dr. Bruce Safman, in October, 2001. His report states:
There was no lower lumbar or sacroiliac tenderness. . . . She has a good range of motion of the right hip. There was no guarding or muscle spasm present. . . . There is no objective pathology discerned either on testing or on examination.
On October 22, 2001, Dr. Safman stated that the claimant had reached maximum medical improvement. Dr. Safman's opinion was that the claimant was demonstrating subjective symptoms.
Dr. Edward Saer's physical examination of the claimant in January, 2002, stated:
She has good back motion and no localized tenderness in the back. . . . There is no spasm present. . . . She has no tenderness in the SI region.
Dr. Saer reviewed her prior MRI reports of the lumbar spine and pelvis and reviewed the bone scan. He stated:
I am at a little bit of a loss to completely explain all of her symptoms.
He ordered a CT scan of the pelvis, which was negative. The only recommendation that Dr. Saer could make was to refer her "back to one of the pain management doctors." However, Dr. Saer does not recommend any further treatment and the previous pain management specialist she saw did not recommend any additional treatment.
Therefore, after I consider all the evidence, I would grant the claimant's request for a change of physician. However, I find that the claimant is not entitled to at least one visit with Dr. Saer at the respondent's expense. Accordingly, I must respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner