CLAIM NO. E315311
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 22, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ANNE ORSI SMITH, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on March 23, 1994. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation and that treatments rendered by Dr. Bryant and by Dr. Nutt were unauthorized and not the responsibility of the respondent.
[17] Initially, we find that the treatment provided by Dr. Bryant was not emergency treatment. Emergency treatment is not limited to life-threatening situations. White v. LairOil Co., 20 Ark. App. 136, 725 S.W.2d 10 (1987); UniversalUnderwriters Insurance Co. v. Bussey, 17 Ark. App. 47, 703 S.W.2d 459 (1986). Nevertheless, the use of the term “emergency” obviously contemplates some sort of sudden or unexpected exigency which demands prompt attention. For example, in White, supra and Bussey, supra, the evidence established that the claimants were denied medical treatment by the authorized treating physician although the medical evidence established that the claimants sustained very substantial injuries and were in excruciating pain, and they sought treatment from another physician immediately after authorized medical treatment was denied. In the present claim, the evidence establishes that claimant sustained only a minor soft tissue injury. She missed only two days work, at most, as a result of this injury. Furthermore, the medical findings are not consistent with the severity of the symptoms described by the claimant, and the evidence indicates that the claimant exaggerated her symptoms. Moreover, there is no indication that Dr. Mosley refused to treat the claimant. Instead, the evidence indicates that the claimant advised him that she did not want to continue treatment under him. However, even assuming Dr. Mosley did refuse treatment on May 27, 1993, the claimant did not immediately obtain treatment from another physician, for she did not see Dr. Bryant until June 8, 1993. Consequently, we find that Dr. Bryant’s treatment does not constitute emergency treatment. [18] We also find that Dr. Mosley did not refer the claimant to Dr. Bryant. A legitimate referral by an authorized treating physician is not a change of physicians and is not subject to the procedures set forth in Ark. Code Ann. § 11-9-514. TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481(a)(1) If the employee selects a physician, the commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying a change.
(2) If the employer selects a physician, the claimant may petition the Commission one (1) time only for a change of physician and if the Commission approves the change, with or without a hearing, the Commission shall determine the second physician and shall not be bound by the recommendation of claimant or respondent. . . .
(1991); Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985). In this regard, a referral may not be legitimate if the claimant asks for a referral to a specific physician. Pedro Quinones v. Coca-Cola Bottling, Full Workers’ Compensation Commission, Jun. 24, 1992 (Claim No. E104355); Thomas Utah Standridge v. Strong ManufacturingCo., Full Workers’ Compensation Commission, Mar. 18, 1986 (Claim No. D206250); Brenda Cronch v. Parkhill BaptistChurch, Full Workers’ Compensation Commission, Oct. 3, 1988 (Claim No. D607898). Instead, the facts may suggest that such requests for referrals are based on the claimant’s desire for a change of physician and not on the referring physician’s medical judgment regarding the claimant’s medical needs. See, Quiones, supra; Standridge, supra.
Consequently, such requests for referrals are treated as changes of physicians, subject to the provisions of Ark. Code Ann. § 11-9-514. However, the mere fact that the claimant requests a referral does not mean that the referral is not legitimate. See, Underwood, supra; Villines, supra.
Instead, the referral will be legitimate if it is based on the physicians’s medical judgment regarding the claimant’s medical needs. Jerita Sennfner v. Harvest Foods, Full Workers’ Compensation Commission Aug. 27, 1993 (Claim No. E109342). [19] In the present claim, Dr. Mosley has stated that he did not refer the claimant to Dr. Bryant. Furthermore, contrary to the claimant’s contentions, the statements made by Dr. Mosley on the discharge statement from the emergency room clearly do not constitute a referral. Dr. Mosley’s report indicates that the claimant expressed dissatisfaction with his care when he saw her in the emergency room, so it is understandable that he would advise her to select a local physician to provide follow-up care instead of advising her to return to him. Furthermore, his report indicates that he was under the impression that she was planning on seeing a specialist in Little Rock, so his recommendation that she keep that appointment is understandable. Moreover, it takes a great leap of reasoning and logic to conclude that these statements, even read together, constitute a referral to a specialist of the claimant’s choosing. Even if the statements could be read as a referral to a specialist of the claimant’s choosing, the referral would not be valid. The fact that Dr. Mosley does not specify a specialty area, in addition to not specifying a specialist, clearly shows that Dr. Mosley was not exercising his medical judgment to determine that the claimant needed to be treated by a specialist. In fact, there is no indication in any of his records indicating that he felt that there was any need for the claimant to be seen by a specialist, despite the claimant’s admission that she began asking for a referral to a specialist within one week after she first saw Dr. Mosley. Therefore, even if we construed Dr. Mosley’s statements as a referral, which we do not, we would find that the referral was based solely on the claimant’s insistence on a referral, and we would find that the referral was not valid. [20] Furthermore, we find that Dr. Bryant’s treatment was not authorized by the respondent. As discussed, Ms. Hunt sent a facsimile transmission to Dr. Bryant authorizing treatment on one occasion, and there is no indication that any authorization was ever given for subsequent visits. Therefore, any treatment provided after the initial visit clearly was not authorized. Furthermore, we find that the authorization for a one time visit was based on the claimant’s misrepresentation that Dr. Mosley had validly referred her to Dr. Bryant. In this regard, this Commission has previously found that a respondent is not bound by an authorization which is based on an erroneous representation that there has been a valid referral. Timothy David v.Arkansas Best Corporation, Full Workers’ Compensation Commission, Mar. 13, 1991 (Claim No. D916204). Consequently, we find that the treatment rendered by Dr. Bryant was unauthorized and not the liability of the respondent. [21] In addition, we find that the respondent is not liable for the chiropractic services provided by Dr. Nutt. In this regard, the claimant contends that she complied with the requirements of Ark. Code Ann. § 11-9-514 (1987) because she provided the respondent with advance written notice of her intent to obtain chiropractic treatment. However, the relaxed procedure for changes to chiropractic physicians is only applicable if the desired change is from a physician of the employer’s choosing. Therefore, advance written notice of the intent to change to a chiropractic physician does not satisfy the change of physician rules if the change is from a physician of the employee’s choosing. Sandra Faulkner v.Arkansas Highway Transportation Dept., Full Workers’ Compensation Commission, Nov. 25, 1992 (Claim No. E112634);Sharon Hill v. Turnage Temporaries, Full Workers’ Compensation Commission, Jul. 20, 1992 (Claim No. E012814);Robbie Branscum v. Woodlawn Nursing Home, Full Workers’ Compensation Commission, Jun. 15, 1988 (Claim No. D600082). In the present claim, although she subsequently learned that Dr. Mosley may be the company physician, the claimant admittedly was given the opportunity to make the initial selection of physician, and the more stringent requirements are applicable. See, Darlene Clay v. East Arkansas AreaAgency on Aging, Full Workers’ Compensation Commission, Oct. 30, 1991 (Claim No. D913256). Therefore, advance written notice was not sufficient to comply with the change of physician rule, and the respondent is not responsible for expenses related to Dr. Nutt’s treatment due to the failure of the claimant to comply with the change of physician rules. [22] Finally, we find that the claimant failed to prove by a preponderance of the evidence that the claimant is entitled to additional temporary total disability compensation. Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in his capacity to earn the wages that she was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his 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, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher. Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [23] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that she has been incapacitated from earning the wages she was earning at the time of the injury. The evidence establishes that the claimant sustained only a minor injury. Although she was restricted to light duty work for a short period of time, she missed at most two days work, and, after she returned to full duty, she worked overtime most weeks. There are virtually no diagnostic or clinical findings to support this claim, and those findings that are present are not consistent with the severity of the condition described by the claimant. Furthermore, the reliability of the minimal findings that are in the record is subject to question due to the evidence suggesting that the claimant may have exaggerated or distorted her symptoms. Also, although the claimant testified that she terminated her employment due to the problems she was experiencing, she admitted that she did not advise the respondent of that fact. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that she was incapacitated from earning the wages she was earning at the time of the injury, [24] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find the claimant failed to prove by a preponderance of the evidence that the respondent is liable for treatment provided by Dr. Bryant or Dr. Nutt. In addition, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge’s decision must be affirmed. This claim is hereby denied and dismissed. [25] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[26] Commissioner Humphrey dissents.