Opinion
CLAIM NO. E102964
OPINION FILED JUNE 18, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT S. TSCHIEMER, Attorney at Law, Little Rock, Arkansas.
Respondent represented by TIM CHEATHAM, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Claimant appeals from a decision of the Administrative Law Judge filed May 7, 1996 finding that the claimant failed to prove by a preponderance of the evidence that the claimant was entitled to an independent medical examination or a change of physician and that Dr. Rick Dubas, D.C. was an unauthorized treating physician. The Administrative Law Judge also found that the claimant was not entitled to any further medical treatment. Based upon our de novo review of the record, we affirm the opinion of the Administrative Law Judge.
The claimant was employed by the respondent as a supervisor and was working at Arkansas Nuclear One when he sustained an admittedly compensable injury on December 6, 1990. The claimant was ascending a ladder on a scaffold when he struck a support brace with his hard hat, injuring his neck. On February 22, 1991, Dr. Donald M. Dooley of Miami, Florida, performed an anterior cervical diskectomy at C5-6 and an anterior cervical diskectomy and fusion at C6-7 at the Baptist Hospital of Miami, Florida. On April 11, 1992, Dr. Dooley released the claimant to return to work without restriction. Dr. Dooley indicated in his report that:
He may return to work without restrictions. He still has some cramping in the left hand and has found it difficult to write for a prolonged period of time, and that might be his only problem. He still has a little bit of weakness of abduction and adduction of the left fingers, especially the fourth and fifth fingers, and the left triceps is not quite as strong as the right, although the biceps are now equal.
The claimant returned to work in May, 1991, and worked until he was laid off in October of 1991. From December of 1991 through March of 1992, the claimant worked for another contractor performing similar job duties. He subsequently drew unemployment benefits from June, 1992 through August, 1992. Thereafter, the claimant's home was damaged by Hurricane Andrew and he performed some tasks associated with rebuilding his home. In January 1993, through May 1993, the claimant worked as a subcontractor to the Corps of Engineers repairing hurricane damage. He has obtained his commercial drivers license and currently works for a towing company an average of 50 hours per week. The claimant testified that he has not returned to work at his previous occupation because he cannot speak Spanish.
The claimant began seeing Dr. Rick Dubas, a chiropractor in Homestead, Florida, in May of 1993. The claimant continued to see Dr. Dubas through December of 1993. The claimant testified that he had tingling in his forearms, cramping in his feet and difficulty in motion over his head. He also stated that it was difficult to prop up his head while lying down and that his condition had not changed since 1992. The claimant additionally testified that he began seeing a chiropractor when he was five years old and that he saw a chiropractor within six months of his injury.
The claimant contends that he entitled to an independent medical evaluation. However, Dr. Basil Yates, a neurosurgeon in Hialeah, Florida, performed an independent medical examination on the claimant on December 18, 1992. In his report, Dr. Yates' examination revealed:
On examination, the patient presses 40 pounds with a tonometer in his right hand; 55 with the left. He has intact reflexes and sensation. He has no limitation of motion although he has some discomfort on full range of motion of the shoulders, elbows, wrists, hands, and fingers. He has 15% less use of the right arm in general than the left.
. . . I do not feel that any additional need for medical care will be revealed by the MRI or cervical spine films. The purpose of these tests is to prove that nothing further is indicated. I have explained to the patient that his salvation is exercising to strengthen the shoulder girdle and paracervical musculature and that the only thing other than that that could be done on him would be to reoperate him and that is not indicated, therefore his old MMI and PPD will pertain once I have proven that nothing has happened to his cervical spine; I do not believe it has.
The evidence indicates that the claimant has had an extensive IME and the claimant's condition has not changed. Therefore, we find that no further medical treatment is warranted and the claimant is not entitled to another independent medical evaluation.
The claimant also seeks reimbursement for his chiropractic bills. We find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to reimbursement for his chiropractic bills. The evidence indicates that the claimant failed to comply with Ark. Code Ann. § 11-9-514 (2) which governs change of physician. Ark Code Ann. § 11-9-514 (2) states in pertinent part:
. . . However, if the change desired by the claimant is to a chiropractic physician, the claimant may make the change by giving advance written notification to the employer or carrier.
The evidence demonstrates that the claimant was fully aware of the change of physician rules under Arkansas law. He signed for and received Form A-29 on February 25, 1991. The evidence shows that the claimant failed to provide advance written notification to the employer or the carrier as required by Ark. Code Ann. § 11-9-514 (c). Therefore, we find that the claimant is not entitled to reimbursement for the chiropractic services performed by Dr. Dubas as he is an unauthorized treating physician.
The claimant argues that the change of physician rules are inapplicable because the respondent controverted the claimant's entitlement to additional benefits. We find this argument totally without merit. The respondent did not controvert this claim entirely. The respondent only controverted the claimant's request for a change of physician after the claimant had been released by Dr. Dooley and after the IME by Dr. Yates. Under the claimant's argument, any time a respondent controverts a claimant's right to a change of physician or independent medical evaluation, the change of physician rules would be invalid and the claimant could seek treatment from whichever doctor he chooses. This is simply not the law in Arkansas.
The claimant also argues that since the change of physician rules do not apply, the issue is whether the treatment by Dr. Dubas is reasonable and necessary. Even if we were to find that the change of physician rules do not apply, which we do not find, the treatment of Dr. Dubas is not reasonable and necessary in light of the claimant's injury. The determination of what constitutes reasonable and necessary treatment is a fact question for the Commission. Tracor/MBA v. Baptist Medical Center, 29 Ark. App. 198, 780 S.W.2d 26 (1989). In addition, when assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy.Deborah Jones v. Seba, Inc., FC Opinion Dec. 13, 1989 ( D512553).
The evidence indicates that the claimant is receiving the same chiropractic adjustments and manipulation that he has received since he was five years old. The claimant testified that he sought chiropractic treatments approximately once per month for "regular maintenance". As such, the respondent should not be liable for the claimant's chiropractic treatment.
The claimant also argues that the Administrative Law Judge should not have ruled that the claimant was not entitled to continued future medical treatment. The claimant asserts that this issue was not properly before the Commission for a ruling. The claimant argues that it is a violation of his constitutional right to due process for the Administrative Law Judge to make this finding. The respondent argues that before a finding can be made on the change of physician issue, it is necessary to make a finding that the claimant was not entitled to additional medical treatment. Therefore, the issue was properly decided by the Administrative Law Judge.
It is well-settled that the Commission is required to rule on constitutional questions that are properly before it. Green v. Smith Scott Logging, 54 Ark. App. 44, ___ S.W.2d ___ (1996). The due process provisions of the United States Constitution and the Arkansas Constitution require adequate procedural safeguards to protect against the mistaken or unjust deprivation of a protected property interest. When a procedure is challenged for the lack of due process the primary focus of the courts is on the fairness and accuracy of the decision resulting from the procedure challenged. At a minimum, due process requires notice and an opportunity to be heard. Franklin v. State, 267 Ark. 311, 590 S.W.2d 28 (1979); Commissioner of Labor v. Purnell, 267 Ark. 593, 593 S.W.2d 157 (1980); and Godwin v. Godwin, 268 Ark. 364, 596 S.W.2d 695 (1980).
We agree with the respondent's argument that a finding as to the claimant's entitlement to additional medical treatment is necessary before the change of physician issue can be addressed. However, we make this finding only as it applies to the facts in this case. We do not agree that this is a necessary finding in all change of physician cases. Just because the claimant fails to prove by a preponderance of the evidence that he is entitled to a change of physician, he is not necessarily precluded from receiving any further medical treatment. The claimant must prove he is entitled to additional medical treatment before he can obtain his requested change of physician. The claimant in this case has failed to prove that he is entitled to any additional medical treatment after March 30, 1992. Therefore, the claimant is not entitled to a change of physician.
As for the notice requirement of due process, we would simply point out that the prehearing order filed on March 10, 1994 contains the contentions of the parties. The contentions state that the respondent contends that the claimant's healing period has ended and no additional medical treatment is necessary. However, the order states that the issues to be litigated are change of physician, independent medical evaluation, medical expenses, controversion and attorney's fees. The claimant relies on this part of the prehearing order to back up his argument that his constitutional right to due process has been violated. The claimant argues that he was not given notice of this issue nor an opportunity to be heard. We find that the claimant was given notice that the respondents were arguing that the claimant was not entitled to any future medical. It is very clear in the contentions that the respondents were relying on this argument to support their position that the claimant was not entitled to a change of physician or an independent medical evaluation. This case was submitted to the Administrative Law Judge on the record in lieu of a full hearing. Therefore, the Commission does not have the benefit of the transcript from the hearing to review. We only have the information that is contained in the record. Our de novo review of the record indicates that the claimant has reached the end of his healing period and is not entitled to continued medical treatment.
The healing period is defined as that period for healing of the injury resulting from the accident which continues until the employee is as far restored as the permanent character of the injury will permit. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve the condition, the healing period has ended. Id. That determination is to be made by the Commission, and if that determination is supported by substantial evidence, it must be affirmed. Id. The claimant has clearly reached the end of his healing period. Dr. Dooley released the claimant to return to work in April of 1991 and assigned him a permanent impairment rating.
The evidence in this case simply fails to show that the claimant is entitled to any further medical treatment. Therefore, it was not a violation of the claimant's due process rights for the Administrative Law Judge to make a determination that the claimant was not entitled to future medical treatment.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to an independent medical examination or a change of physician. In addition, we find that the claimant is not entitled to any further medical treatment and that the chiropractic treatment rendered by Dr. Rick Dubas is unauthorized. Accordingly, we find that the decision of the Administrative Law Judge should be and hereby is affirmed. This claim is denied and dismissed.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority.
Initially, I find that claimant did not make an unauthorized change of physician to Dr. Dubas. Claimant's authorized treating physician had been Dr. Donald M. Dooley, a neurosurgeon, who performed extensive surgery on claimant's cervical spine in February 1991. Claimant was released to return to work and has done so. However, claimant continued to experience debilitating symptoms on occasion. When he tried to return to his authorized treating physician, he learned that Dr. Dooley had retired and was no longer in the area. Claimant contacted the insurance adjuster with Crum Forester and was told that he could not see another physician because he needed no further medical treatment. This is clearly a refusal to provide medical treatment and claimant does not have to follow the change of physician rules. Sanyo Mfg. Corp. v. Farrell, 16 Ark. App. 519, 696 S.W.2d 779 (1985). Even respondent, as recognized at one point by the majority, contends that claimant is not entitled to any additional medical treatment beyond March 1992. Thus, it cannot be seriously argued that respondent was not refusing to provide additional treatment for claimant. Therefore, claimant did not have to follow the change of physician rules.
The only question is whether the treatment provided by Dr. Dubas was reasonable and necessary. I find that it was. Even though claimant may have received chiropractic treatments in the past, that does not necessarily mean the treatment he received for his compensable injury is unreasonable and unnecessary. The only evidence in the record details chiropractic charges of approximately $1,600.00 for treatment between May 1993 and January 1994. The evidence indicates that this treatment clearly helped to stabilize or maintain claimant's condition and allow him to continue to be a productive member of society. Medical treatment to stabilize or maintain an injured worker are the responsibility of the employer.Artech Hydrophonics, Inc. v. Pippen, 8 Ark. App. 200, 649 S.W.2d 845 (1983). Therefore, I find that claimant has proven by a preponderance of the evidence that chiropractic treatment was reasonable and necessary. Likewise, I find that claimant is entitled to continue to receive occasional chiropractic treatment, as long as it remains reasonable and necessary and related to the compensable injury.
Finally, the end of the healing period is not determinative as to whether claimant is entitled to continued medical treatment or a change of physician.Artech Hydrophonics, Inc., supra; Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).
Based on the above evidence, I would reverse the opinion of the Administrative Law Judge.
PAT WEST HUMPHREY, Commissioner