BUCHER v. INTERNATIONAL PAPER COMPANY, 1994 AWCC 130


CLAIM NO. E315311

CARLA BUCHER, EMPLOYEE, CLAIMANT v. INTERNATIONAL PAPER COMPANY, SELF-INSURED EMPLOYER, RESPONDENT

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.

[3] After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that the treatments rendered by Dr. Bryant or Dr. Nutt are the responsibility of the respondent. In addition, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary total disability compensation. Therefore, we find that the administrative law judge’s decision must be affirmed.

[4] The claimant sustained an admittedly compensable injury on February 20, 1993. She was stacking bags which weighed approximately fifty pounds onto a pallet when she began to experience pain in her neck, shoulder, arm, and upper chest. She completed her shift that night, but her symptoms had worsened when she woke up the following morning. Consequently, she called the respondent’s first aid station. She testified that she was advised to come to work and that arrangements would be made for her to see a physician Monday morning. Edna Nunn, occupational nurse for the respondent, testified that the claimant called on February 21, 1993, and advised her that she had strained her back stacking boxes the previous day. According to Ms. Dunn’s testimony, she advised the claimant to come to the first aid station so that she could formally report an injury and so that she could be examined by a nurse. Ms. Dunn also testified that she advised the claimant that arrangements would be made for her to see a physician if they were unable to treat her at the first aid station.

[5] According to the claimant’s testimony, she was ultimately advised to see a physician of her choice to confirm that her problems were not caused by arthritis in her back, and she selected Dr. David Mosley, a general practitioner, from the phone book. Apparently, Dr. Mosley is also the company physician for the respondent. His initial examinations of the claimant revealed point tenderness on her left scapula. However, her motor and sensory functions were intact, and her reflexes and grip strength were normal. Likewise, his examinations revealed normal range of motion of the upper extremities. Based on these findings, Dr. Mosley diagnosed a musculoskeletal strain. Nevertheless, the claimant continued to complain of “excruciating pain,” and Dr. Mosley caused a CT scan of the thoracic spine and a MRI of the cervical and thoracic spines to be performed to rule out possible nerve entrapment. Both of these diagnostic tests were completely normal. Dr. Mosley’s March 10, 1993, note indicates that the claimant advised him that “her shoulder is feeling much better and she is having very little pain now.” Consequently, Dr. Mosley released her to full duty work. The claimant testified that Dr. Mosley was very rude to her during the course of his treatment in February and March. In addition, she testified that she asked Dr. Mosley to refer her to a specialist and that he refused to do so. However, there is nothing in Dr. Mosley’s reports to indicate that there were any problems with the claimant or that she requested a referral.

[6] The claimant continued to work for the respondent until May 7, 1993. She stated that she continued to experience problems with her shoulder and neck during this time, and she testified that they terminated her employment due to these problems. With regard to the problems she was experiencing, she testified that she continued to experience pain, and she testified that she was losing her hair and experiencing dysentery as a result of these problems. However, she also testified that she did not inform her supervisor or the plant nurse of these problems because she was afraid it would affect her job. Mr. Bobby Bass, safety supervisor for the respondent, testified that the claimant missed only two days work between February 21, 1993, and May 7, 1993, when she terminated her employment, and Mr. Bass testified that the claimant worked in excess of 40 hours during several weeks during this period.

[7] After she terminated her employment with the respondent, she began working for a convenience store, which was owned by a friend of the claimant’s. The claimant testified that this was lighter work. However, after working at the convenience store approximately one week, she testified that she began experiencing problems, and she reported to the emergency room in Camden. According to the claimant’s testimony, she was preparing to mop when this episode occurred, but she had not yet begun mopping. The emergency room report indicates that the claimant reported the sudden onset of a sharp pain as she picked up a mop bucket to empty it. However the report also indicates that the claimant related the history of the February 20, 1993, injury and that she had experienced pain and difficulty sleeping since that time.

[8] In any event, Dr. Mosley was on call in the emergency room that night, and the claimant testified that he was again very rude to her and that he did not examine her. In this regard, the report contains physical findings indicating that he did in fact examine the claimant. However, the report also states that the claimant was unhappy with his treatment, and it states that “[s]he says she is going to see a `specialist’ in LR” and that he “encouraged her to do so.” Dr. Mosley again diagnosed a strain. Dr. Mosley’s discharge instructions advise the claimant to follow-up with a physician of her choice and to establish herself with a physician locally. In addition, he advised her to “[k]eep appointment with specialist in Little Rock.” The claimant testified that she never had an appointment with a specialist in Little Rock and that she never told Dr. Mosley that she did. However, she did testify that she again talked to Dr. Mosley about a referral to a specialist.

[9] Dissatisfied with Dr. Mosley’s care, the claimant then presented to the emergency room in El Dorado later that same day. Notably, the report of this visit also states that the claimant experienced the onset of increased back pain while mopping, although, again, she related the history of the February injury. She was examined by Dr. George Byram, and Dr. Byram’s findings were similar to those of Dr. Mosley. Likewise, Dr. Byram diagnosed muscular pain, and he referred her to a Dr. Gilles.

[10] Nevertheless, on that same day, the claimant made an appointment with Dr. D’Orsay D. Bryant, an orthopedist. According to the claimant’s testimony, she interpreted Dr. Mosley’s advice to see a physician of her choice and to keep the appointment with the specialist in Little Rock to mean that he was advising her to see the specialist of her choice. Consequently, she contacted Chris Hunter, an adjuster with Sedgwick James who adjusts the respondent’s workers’ compensation claims. According to the claimant, she advised Ms. Hunter that Dr. Mosley had advised her to see a specialist of her choice, and she advised her that she wanted authorization to see Dr. Bryant. However, Ms. Hunter testified, and her testimony in this regard differs from that of the claimant. According to Ms. Hunter, the claimant called her on June 7, 1993, not on the date that she was treated in the emergency room as the claimant’s testimony indicates. In addition, Ms. Hunter testified that the claimant advised her that Dr. Mosley had specifically referred her to Dr. Bryant, and Ms. Hunter testified that she authorized treatment by Dr. Bryant based on the claimant’s representation that Dr. Mosley had specifically referred her to him. Ms. Hunter also testified that the claimant did not tell her that Dr. Mosley referred her to a physician of her choice and that she had selected Dr. Bryant. In any event, on June 7, 1993, Ms. Hunter sent a facsimile transmission to Dr. Bryant authorizing him “to see Ms. Bucher for a one time visit pending a report.”

[11] Dr. Bryant did examine the claimant on June 8, 1993, and his examination revealed tenderness in the claimant’s shoulder, scapula, neck, and trapezial area, with spasm. otherwise, his examination was normal, including a full range of motion of the shoulder. Consequently, Dr. Bryant also diagnosed cervical, thoracic, and left shoulder strains. Dr. Bryant saw the claimant again on June 10, 1993, after he obtained Dr. Mosley’s records, and his records indicate that he discussed the lack of findings with her at that time. Nevertheless, he concluded that she had “a significant soft tissue injury around her back and shoulder,” he treated her conservatively with physical therapy and medication. However, on June 17, 1993, the claimant advised Dr. Bryant that she felt that physical therapy was aggravating her problems. However, based on the absence of findings, Dr. Bryant indicated that he would refer her to a rehabilitations hospital for further management.

[12] According to the claimant and Ms. Hunter, Dr. Bryant referred the claimant to a neurosurgeon in Louisiana. However, Ms. Hunter refused to authorize treatment by this neurosurgeon. Instead, she contacted Dr. Bryant and suggested that he refer the claimant to Dr. P. B. Simpson, a neurosurgeon in Pine Bluff, and Dr. Bryant did in fact refer the claimant to Dr. Simpson. Dr. Simpson examined the claimant on June 25, 1993. His report indicates that his examination revealed mild to moderate decreased range of motion in the claimant’s neck and mild tenderness in the mid cervical area. However, there was no evidence of paravertebral muscle spasm. In addition, his examination did not reveal any weakness in her upper or lower extremities, and no sensory deficit whatsoever was revealed.

[13] Based on his clinical findings, Dr. Simpson suspected “a lot of functional overlay,” and he caused a functional capacity evaluation to be performed. However, this test was determined to be invalid due to multiple inconsistencies. For example, the claimant was given a formal continuous sitting test, and she was asked to sit for as long as she could tolerate. She sat for 4 minutes before asking to stand up. However, it was noted that she sat continuously for 55 minutes during the initial interview. In addition, the claimant was given a standing test, and she stood for 4 minutes and 45 seconds before asking to sit down. However, at other stages of the evaluation, the claimant had stood continuously for periods of 55 minutes, 54 minutes, and 27 minutes. Also, during an isometric push test, the claimant demonstrated the ability to push with a force of 4.8 pounds. However, later, during a dynamic push test, the claimant demonstrated the ability with a force of 30.4 pounds. Likewise, during a isometric pull test, the claimant demonstrated the ability to pull with a force of 14 pounds, but, during a subsequent dynamic pull test, she demonstrated the ability to pull with a force equal to 31.2 pounds.

[14] Both Dr. Simpson and Dr. Bryant released the claimant to return to work with no restrictions on July 19, 1993. However, on July 13, 1993, the claimant sought treatment from Dr. C. D. Nutt, a chiropractor. Dr. Nutt has also diagnosed sprain/strains, and he has treated the claimant with spinal manipulations.

[15] The claimant testified that she continues to experience problems. Although she testified that she almost never goes a day without pain, she testified that she has good days and bad days, and she testified that she has cracking and popping in her spine. However, she testified that the chiropractic treatment has helped. In this regard, she testified that this treatment has helped her regain strength in her arm and that it has stopped her hair from falling out. She has not attempted to return to work.

[16] Under Ark. Code Ann. § 11-9-508 (a) (1987), employers must promptly provide medical treatment which is reasonably necessary for treatment of work-related injuries. In addition, Ark. Code Ann. § 11-9-514 (1987) establishes the procedures which must be followed if the injured employee later desires to change physicians, and, except for emergency treatment, the employer is not liable unless the claimant follows this procedure. With regard to this procedure, Ark. Code Ann. § 11-9-514 provides the following:

(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. . . .

[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
(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.