CLAIM NO. F304342
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 4, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appears pro se.
Respondents represented by the HONORABLE MARK MAYFIELD, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed June 14, 2004. The administrative law judge found that the claimant proved she “was temporarily totally disabled for the period beginning April 17, 2003 and continuing through May 30, 2003.” The administrative law judge found that medical treatment the claimant received at Lawrence Memorial Hospital on April 16, 2003 was “emergency medical treatment” and was reasonably necessary in connection with the claimant’s compensable injury. The administrative law judge found that treatment the claimant received from Dr. John Woloszyn was reasonably necessary.
After reviewing the entire record de novo, the Full Commission affirms the administrative law judge’s finding that the claimant proved she was entitled to temporary total disability compensation from April 17, 2003 through May 30, 2003. The Full Commission affirms the administrative law judge’s finding that the treatment provided the claimant at Lawrence Memorial Hospital was “emergency medical treatment” and was reasonably necessary. The Full Commission reverses the administrative law judge’s award of treatment from Dr. Woloszyn. We find that the treatment provided the claimant from Dr. Woloszyn beginning April 17, 2003 was unauthorized and not the responsibility of the respondents. The Full Commission therefore affirms in part and reverses in part the opinion of the administrative law judge.
I. HISTORY
Pamela L. Baker, age 40, agreed that she became employed with Quebecor World in February 1990. Ms. Baker described her employment duties as “I’m a general worker, which basically I do just about everything, but mostly I feed pockets; that’s putting paper in like a little pocket where, you know, it drops down to run the book.”
The parties stipulated to “the existence of the employee-employer relationship on April 14, 2003, when the claimant reported an injury to her right lower extremity (ankle and foot) which was accepted as compensable by respondents[.]” The claimant testified, “I had stepped on a board and it had cracked, and that’s when I — well, I went down.”
The claimant signed a Form AR-N, Employee’s Notice Of Injury, on April 16, 2003. The parties stipulated that the claimant was provided medical treatment at the respondents’ expense on April 16, 2003. The claimant was treated by the company physician, Dr. Michael Lack, on April 16, 2003: “Pt states that she was walking on a platform and it broke. She states that her foot and ankle twisted. She states that she is having a burning steady pain. She has tingling in her toes, but denies any numbness. She has a prior history with this ankle.” The assessment was “contusion, forearm.” The claimant was treated with an ankle brace and Ibuprofen. The claimant was returned to work on April 16, 2003, and her restrictions were “wear splint/brace at work.”
The claimant testified, “I went back to work and — excuse me — and my operator helped me finish my job.” The claimant testified that the pain in her right ankle worsened, stating, “the longer I was on it and walked, the worse it hurt. . . . And, you know, until it just got to where I just couldn’t hardly walk.” “I went home,” the claimant testified, “and it kept hurting and throbbing, and so then I went to Lawrence Memorial Hospital.” The record indicates that the claimant presented on her own to Lawrence Memorial Hospital on April 16, 2003. The claimant complained of “moderate” pain after an injury to her right ankle which had occurred at work. A physician’s clinical impression was sprain of the right ankle. The claimant was discharged in improved, stable, ambulatory condition. The claimant was prescribed medication and was instructed to “rest and ice” her right ankle. A note from Lawrence Memorial dated April 16, 2003 indicated, “At work, must be off feet w/R ankle elevated until cleared by personal Dr.”
The administrative law judge examined the pro se claimant:
Q. The next day would have been the 17th?
A. Correct.
Q. Do you report back to work?
A. I did at my regular time. . . .
Q. And you — did you provide them any documents that the emergency room physician had given you?
A. Yes, sir, I did.
Q. And what happened at that time?
A. Then — well, my machine was down then, and I do — I believe Mr. Gray did take me back to Dr. Lack, and it was like there was nothing wrong. And so that’s when I went to Dr. Woloszyn because I felt that — I mean, it was getting bad. I couldn’t walk on it. The more I walked the worse it hurt, and that’s when I went to Dr. Woloszyn.
The claimant presented Dr. John T. Woloszyn, an orthopedic surgeon, on April 17, 2003:
Ms. Baker comes in after having twisted her ankle on Monday.
X-RAYS: Films were taken. Clinical examination shows a diffuse lateral ankle swelling, bruising, severe anterior and posterior tibial fibular ligament tenderness along with a little bit of deltoid tenderness.
Dr. Woloszyn’s impression was “Grade III sprain. . . . I’m going to place her into a short leg walking cast, keep her off work. We’ll see her back in 4 wks for cast removal.” Dr. Woloszyn provided the claimant an off-work slip on April 17, 2003, “no work for the next 4 wks.”
The parties stipulated that the respondents provided medical treatment on April 17, 2003. The claimant returned to company physician, Dr. Lack, on April 17, 2003. Dr. Lack reported, “Pt states that this morning her R ankle was really swollen and bruised. She went to work but her machine was down so she left work and went to see Dr. Woloszyn because she saw him before for her broken foot.” The record indicates that Dr. Lack also signed the following report on April 17, 2003:
Pt saw Dr. Woloszyn this morning and was put in a cast. Pt had x-ray of ankle in ER which was normal. Pt advised that company wanted to have a second opinion. Pt stated that she trusted Dr. Woloszyn and did not want to seek a second opinion. Pt advised that W/C would probably not cover her care with Dr. Woloszyn. Pt in cast.
Pt had x-ray in ER read as normal. Orthopedist also x-rayed her ankle and it was read as normal.
Dr. Lack commented, “In my opinion no evidence of any problem that would require a cast. Pt refused to alow (sic) us to get her records. . . . Pt refused further treatment. No appointment.”
A radiology report was entered at Lawrence Memorial Hospital on April 18, 2003: “The patient has had a prior fracture of the lateral malleolus in 1999 which is well healed. No acute fracture is evident. Joint space is maintained and alignment is normal.” The impression was “no acute bony injury.”
On April 24, 2003, the respondent-employer indicated that it was controverting the claim, stating, “Employee is non-compliant with medical treatment from authorized physician.”
The claimant testified that she continued to receive follow-up treatment from Dr. Woloszyn, and that she was not able to return to work for the respondent-employer until May 31, 2003.
A pre-hearing order was filed on January 20, 2004. The claimant contended that as a result of the injury suffered to her right lower extremity, she “received initial medical treatment from respondents’ designated medical provider, Dr. Michael Lack, on April 16, 2003; that later after arriving home in Walnut Ridge from her job in Jonesboro, her symptoms increased such that she sought medical treatment for same at the emergency room of Lawrence Memorial Hospital in Walnut Ridge, which was reasonable, necessary and related to the compensable injury; that she requested a change of physician from respondent-employer; that upon return to Dr. Lack for medical treatment pursuant to the direction of respondents, she was subjected to hostile and rude treatment by him; and that as a consequence of the afore she sought and obtained medical treatment under care of Dr. James T. Woloszyn, an orthopedic physician, which was reasonable, necessary and related, and for which respondents should be liable.” The claimant contended that she was within her healing period and unable to work from April 16, 2003 through May 30, 2003. The claimant contended that she was entitled to reasonably necessary medical treatment.
The respondents contended that they “initially provided medical treatment to claimant with Dr. Michael Lack. Claimant has since sought treatment on her own, which treatment was not authorized, and she has refused to be seen on referral to an orthopaedic surgeon.”
The parties agreed to litigate the issues of “temporary total disability benefits, medical benefits, and unpaid medical bills.”
The administrative law judge found, in pertinent part:
5. The claimant was temporarily totally disabled for the period beginning April 17, 2003 and continuing through May 30, 2003.
6. Medical treatment rendered to the claimant at Lawrence Memorial Hospital on April 16, 2003, was emergency medical treatment which was reasonably necessary relative to the claimant’s compensable injury of April 14, 2003.
7. Medical treatment rendered to the claimant under the care of Dr. John Woloszyn was reasonably necessary in relation to claimant’s April 14, 2003, compensable injury.
8. The respondent shall pay all reasonable hospital and medical expenses arising out of the injury of April 14, 2003.
The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Change of Physician/Unauthorized Medical Expense
When a claimant desires a change of physician, she must petition the Commission for approval. Sharp v. Lewis Ford, Inc., 78 Ark. App. 164, 78 S.W.3d 746 (2002), citing Ark. Code Ann. § 11-9-514(a)(2)(A) (Repl. 2002). Ark. Code Ann. § 11-9-514(a)(3) sets forth the statutory procedures with regard to change of physician. Ark. Code Ann. § 11-9-514(b) provides, “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.”
In the present matter, the claimant sustained an accidental injury to her right ankle on April 14, 2003. The parties stipulated that the respondents accepted the injury as compensable. The record contains a Form AR-N, Employee’s Notice Of Injury, signed by the claimant on April 16, 2003. The claimant was therefore bound by the statutory change of physician rules.See, Ark. Code Ann. § 11-9-514(c). The respondent-employer provided treatment for the claimant with the respondents’ company physician, Dr. Lack, on April 16, 2003. However, the claimant credibly testified that he experienced acute hurting and throbbing after the compensable injury to her right ankle. The claimant testified, “the longer I was on it and walked, the worse it hurt. . . . And, you know, until it just got to where I just couldn’t hardly walk.”
The claimant therefore presented on her own for emergency treatment at Lawrence Memorial Hospital on April 16, 2003. Although this treatment was unauthorized, the Full Commission finds that the treatment sought by the claimant at Lawrence Memorial Hospital on April 16, 2003 was “emergency treatment” pursuant to Ark. Code Ann. § 11-9-514(b). The preponderance of evidence also indicates that the treatment provided at Lawrence Memorial was reasonably necessary in connection with the claimant’s compensable injury. The Full Commission therefore affirms the administrative law judge’s finding, “Medical treatment rendered to the claimant at Lawrence Memorial Hospital on April 16, 2003, was emergency medical treatment which was reasonably necessary relative to the claimant’s compensable injury of April 14, 2003.”
The Full Commission finds, however, that the claimant did not prove she was entitled to the treatment provided by Dr. Woloszyn beginning April 17, 2003 and following. Although the record indicates that treatment from Dr. Woloszyn was reasonably necessary in connection with the claimant’s compensable injury, said treatment clearly was not authorized by the respondents. The Full Commission therefore finds, pursuant to Ark. Code Ann. § 11-9-514(c)(3), that the claimant did not prove she was entitled to expenses for treatment provided by Dr. Woloszyn. The record does not indicate that the treatment provided by Dr. Woloszyn was “emergency treatment” pursuant to Ark. Code Ann. § 11-9-514(b).
B. Temporary disability
The claimant sustained an accidental injury to her right ankle, a scheduled injury pursuant to Ark. Code Ann. § 11-9-521. The claimant is therefore entitled to temporary total disability compensation while she remains within her healing period and has not returned to work. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d (2001). The administrative law judge in the present matter determined that the claimant proved she was entitled to temporary total disability compensation from April 17, 2003 through May 30, 2003. The Full Commission affirms this finding. The claimant was diagnosed as suffering from a right ankle sprain following her compensable injury. The claimant began treating with Dr. Woloszyn on April 17, 2003. Although the Full Commission has determined that treatment from Dr. Wolosyn was unauthorized, we may still rely on his reports in determining whether the claimant proved she was entitled to temporary total disability compensation. See, Dollins v. L.A. Darling Co., Workers’ Compensation Commission F111349 (Nov. 19, 2004). Examination by Dr. Woloszyn on April 17, 2003 indicated swelling and bruising around the claimant’s right ankle. Dr. Woloszyn’s impression was “Grade III sprain,” and placed the claimant in a walking cast and took the claimant off work. The preponderance of evidence therefore demonstrates that the claimant proved she was entitled to temporary total disability compensation beginning April 17, 2003.
The claimant continued to follow up with Dr. Woloszyn, and the claimant credibly testified that she was not able to return to work until May 31, 2003. There are no reports from Dr. Woloszyn indicating that the claimant remained within her healing period after that time. The Full Commission therefore affirms the administrative law judge’s finding that the claimant “was temporarily totally disabled from April 17, 2003 and continuing through May 30, 2003.”
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge’s finding that the claimant proved she was entitled to temporary total disability compensation from April 17, 2003 through May 30, 2003. The Full Commission affirms the administrative law judge’s finding that treatment received by the claimant at Lawrence Memorial Hospital on April 16, 2003 was “emergency treatment” and was reasonably necessary in connection with the claimant’s compensable injury. We find that treatment provided by Dr. Woloszyn beginning April 14, 2003 was “an unauthorized medical expense” and not the responsibility of the employer. The Full Commission therefore affirms in part and reverses in part the opinion of the administrative law judge.
IT IS SO ORDERED.
_____________________________ OLAN W. REEVES, Chairman
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner.
I concur in part and dissent in part from the principle opinion. Specifically, I concur with the award of temporary total disability benefits and the finding that the treatment provided by Lawrence Memorial Hospital was “emergency medical treatment.” I dissent, however, from the finding that the treatment claimant received from Dr. Woloszyn was unauthorized.
I find that the respondent should be held liable for the treatment the claimant received from Dr. Woloszyn. While it is true that the claimant had been advised of the rules regarding medical treatment pursuant to the Form AR-N, and had been advised that Dr. Lack and not Dr. Woloszyn was the authorized treating physician, I also note that A.C.A. § 11-9-508
provides that the employer shall provide medical service to an injured worker and, if the treatment is not forthcoming, the Commission may direct that the respondent shall be liable for the expense of such services.
In the present case, it does not appear to me that Dr. Lack was providing the claimant any meaningful treatment for her injury. Further, it is also obvious from the testimony of Bob Gray, the respondent’s Safety Coordinator, that there was considerable ill feelings between Dr. Lack and the claimant. However, Mr. Gray indicated that the respondent was not willing to take any action in referring the claimant to another doctor even though the ill will between the claimant and Dr. Lack was such that it would not be reasonable to expect Dr. Lack to provide any further treatment to the claimant. Under these circumstances, I believe that the claimant was justified in seeking medical treatment on her own from Dr. Woloszyn. I also do not see how the respondent has been in any way prejudiced by the claimant seeking treatment from Dr. Woloszyn. In fact, it appears that his treatment of the claimant consists of only two office visits and x-rays. This clearly is not excessive or unreasonable treatment, especially considering the success of his regimen.
For these reasons, I concur in part and dissent in part from the principal opinion.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION KAREN H. McKINNEY, Commissioner.
I respectfully concur in part and dissent in part from the majority opinion. I specifically concur with the finding that Dr. Woloszyn’s treatment was unauthorized and therefore not the respondent’s responsibility. However, I must dissent from the finding that the claimant is entitled to temporary total disability benefits from April 17, 2003, through May 30, 2003; and finding that the respondents are responsible for the medical treatment the claimant received from the Lawrence Memorial Hospital
It is undisputed that the claimant sustained a compensable injury to her right ankle on April 14, 2003. Claimant reported this injury to Bob Gray, the safety coordinator, on April 16, 2003, and as a result she was provided a Form N and was immediately provided medical treatment. Mr. Gray personally took the claimant to the company physician, Dr. Michael Lack, an occupational medicine specialist. Dr. Lack examined the claimant and ordered x-rays of the claimant’s ankle. Dr. Lack noted swelling but no discoloration. After giving the claimant a brace, he released the claimant to return to work.
Upon leaving work on April 16th, the claimant proceeded to the Lawrence Memorial Hospital where again x-rays were taken of the claimant’s right ankle. The claimant was assessed with an ankle sprain and was discharged with instructions to see her primary care physician.
In my opinion, the claimant’s trip to the emergency room does not rise to the level of emergency treatment. The claimant injured her ankle on April 14th. Upon reporting the injury, she was immediately provided medical treatment by the respondents. Nothing about the claimant’s testimony convinces me that her condition and need for treatment could not have waited until she could return to Dr. Lack the following morning. Accordingly, I must dissent from the majority finding that the claimant received emergency treatment for which respondents are liable. In addition, the claimant was provided an off-work slip which stated that the claimant was to be off her feet, with her right foot elevated until cleared by her personal doctor. When the claimant presented this off work slip to her employer, she was advised that it would not be honored since it was not provided by the company physician. At that time the claimant was specifically asked if she wanted to go back to Dr. Lack, which she declined. After leaving the plant, the claimant went on her own to Dr. John Woloszyn, an orthopaedic specialist. Dr. Woloszyn, again took x-rays of the claimant’s right ankle, assessed her with a Grade III sprain, and placed her in a short leg walking cast. Dr. Woloszyn removed the claimant from work and scheduled the claimant for a return visit in four weeks to remove the cast.
I must further dissent from the finding that the claimant is entitled to temporary total disability benefits. Temporary total disability period is the period within the healing period in which an employee suffers a total incapacity to earn wages. Ark. State Highway Trans. Dept. v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The claimant was evaluated by Dr. Lack, an occupational medicine specialist on April 16, 2003. Dr. Lack released the claimant to return to work at that time. The claimant was obviously unhappy with Dr. Lack’s failure to remove her from work and she continued to seek additional medical treatment until she was given an off work slip. When the claimant was advised that the off work slip from Lawrence Memorial would not be honored and was asked if she wanted to return to Dr. Lack, she refused, and instead went to Dr. Woloszyn. Each time the claimant sought medical treatment x-rays were taken which revealed no fractures. Dr. Woloszyn’s medical records fail to discuss why the claimant should be removed from work, or why she required a cast. On the contrary, Dr. Lack stated in his April 17, 2003, office report that he did not observe any medical reason for the claimant to be in a cast. Moreover, Dr. Lack never removed the claimant from work. Accordingly, while the claimant may have remained within her healing period, I cannot find that the evidence preponderates in favor or finding that the claimant was totally incapacitated from earning wages for the period of time that temporary total disability benefits were awarded to the claimant. Even if I were to find that the claimant has proven entitlement to temporary total disability benefits, a finding I specifically do not make, I cannot find that she was totally incapacitated from April 17, 2003, through May 30, 2003. Dr. Woloszyn only removed the claimant from work for four weeks while she was wearing a cast. According to the claimant’s testimony, she returned to Dr. Wosolzyn after four weeks and the cast was removed. Therefore, at best, the claimant is only entitled to temporary total disability benefits through May 16, 2003, as there is no basis in the record to find entitlement to benefits beyond this date.
Therefore, for those reasons set forth herein, I respectfully concur in part and dissent in part from the majority opinion.
_______________________________ KAREN H. McKINNEY, Commissioner