CLAIM NO. E907878
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 6, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE CLAUDELL WOODS, Attorney at Law, Magnolia, Arkansas.
Respondents represented by HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal the Administrative Law Judge’s award of medical and temporary disability benefits at issue in this case, as well as the Administrative Law Judge’s designation of Dr. D’Orsay Bryant as the claimant’s authorized treating physician for future treatment. After conducting a de novo review of the entire record, and for the reasons discussed herein, we affirm the Administrative Law Judge’s award of additional benefits and his designation of Dr. Bryant as the claimant’s authorized treating physician.
Relevant Facts
The claimant sustained a knee injury at work on May 30, 1999. The respondents controverted the injury. Dr. Dickson performed knee surgery on August 12, 1999. The Commission later found the injury compensable and the surgery reasonably necessary.
The claimant developed recurrent knee problems in December of 2000. The respondents terminated Dr. Dickson’s care and sent the claimant to Dr. Mulhollan, who ultimately performed her second knee surgery (that the respondents paid for) on April 11, 2001.
The claimant had a follow-up visit with Dr. Mulhollan on April 26, 2001. She experienced significant symptoms at work on April 28, 2001 and went to the emergency room that evening in Magnolia, which is close to her home. The emergency room physician advised the claimant to follow up with Dr. Mulhollan.
The claimant tried to seek follow-up with Dr. Dickson rather than Dr. Mulhollan. However Dr. Dickson apparently declined to take her back as a patient because of Dr. Mulhollan’s intervening surgery.
The claimant filed a request for a change of physician (not in the record) at some point prior to a June 26, 2001 prehearing conference, when the request was obviously discussed. After that date, the claimant came under the care of Dr. Bryant in El Dorado, who performed her third knee surgery on July 13, 2001. The claimant seeks additional temporary total disability benefits starting April 28, 2001, a change of physician, and a finding that the respondents are liable for Dr. Bryant’s July 13, 2001 surgery and associated treatment and are liable for the April 8, 2001 emergency room visit.
Party Contentions And Administrative Law Judge’s Findings
The claimant contended before the hearing (1) that her authorized treating physician was Dr. Dickson, not Dr. Mulhollan, and that Dr. Dickson refused to treat her, (2) that she should be entitled to a change of physician to someone closer to her home than Dr. Mulhollan, (3) that the April 28, 2001 emergency room visit was an “emergency” for purposes of the change of physician rules, (4) that she has been temporarily totally disabled since the April 28, 2001 emergency room visit, and (5) that the respondents have controverted the additional benefits at issue.
The respondents seem to have argued before the hearing (1) that the claimant’s authorized treating physician is Dr. Mulhollan, not Dr. Dickson, (2) that the respondents have not controverted any additional reasonably necessary treatment from Dr. Mulhollan if the claimant will return to Dr. Mulhollan, (3) that even if the Commission awards a change of physician to Dr. Bryant, the Commission cannot hold the respondents liable for any treatment Dr. Bryant provided prior to the date of the Commission order granting a change of physician, and (4) that the claimant cannot prove temporary total disability without any written explanation from the doctor taking her off work.
The Administrative Law Judge found that, since the respondents did not put a signed form AR-N in the record the change of physician rules did not apply. In addition, the Administrative Law Judge found that Dr. Dickson (not Dr. Mulhollan) was the claimant’s treating physician until Dr. Dickson refused to continue treating her. The Administrative Law Judge designated Dr. Bryant as the claimant’s authorized treating physician in the future. The Administrative Law Judge found that the emergency room visit at issue was an “emergency”. The Administrative Law Judge also found that the emergency room visit and Dr. Bryant’s surgery at issue were reasonably necessary for treatment of the claimant’s injury, and that the respondents controverted all benefits at issue.
The respondents’ brief on appeal seems to argue (1) that the Administrative Law Judge erred in considering the presence or absence of a Form AR-N since the claimant had already filed a request for a change with the Commission when she started seeing Dr. Bryant and since nobody raised Form AR-N as a possible hearing issue, (2) that the claimant “usurped” the Commission’s power to decide her new physician when she went to Dr. Bryant before the Administrative Law Judge had a chance to decide who her new physician should be, (3) that the claimant failed to prove Dr. Bryant’s surgery was reasonably necessary,(4) that the Administrative Law Judge was wrong in finding the claimant’s treating physician had been Dr. Dickson instead of Dr. Mulhollan, and (5) that any temporary total disability from Dr. Bryant’s surgery was from unauthorized and unreasonable treatment.
We draw the following conclusions with regard to the issues on appeal.
The April 28, 2001 Emergency Room Visit At Issue Was Emergency TreatmentSubject To The Exclusion Of Ark. Code Ann. § 11-9-514(b).
Ark. Code Ann. § 11-9-514(b) provides:
Treatment or services furnished or prescribed by any physician other than ones selected according to the foregoing, except emergency treatment, shall be at the claimant’s expense.
In the present case, we note (1) that the claimant had been to Little Rock to see Dr. Mulhollan just two days before the April 28, 2001 emergency room visit at issue, (2) that she had no scheduled follow up from her specialist in the near future, and (3) that the Administrative Law Judge apparently found credible her explanation that her knee was in acute distress on the evening of April 28, 2001 after attempting to return to work (obviously with even more knee problems than Dr. Mulhollan realized during surgery). Under these circumstances, the preponderance of the evidence supports a conclusion that the claimant’s trip to the emergency room for her acute distress on April 28, 2001 was an “emergency” for purposes of the change of physician rules, since she obviously could not see Dr. Mulhollan after work that evening for her acute distress. Therefore, we find that the claimant’s emergency room treatment at issue is subject to the emergency treatment exception provided for under Ark. Code Ann. § 11-9-514(b). Therefore, we find that the change of physician rules cannot prevent the respondents from liability for the April 28, 2001 emergency room visit.
The April 28, 2001 Emergency Room Visit And Dr. Bryant’s July 2001Surgery Were Reasonably Necessary Treatment For the Claimant’s Injury
Since the evidence indicates that the claimant experienced acute distress on April 28, 2001, we affirm the Administrative Law Judge’s finding that the April 28, 2001 emergency room visit was reasonably necessary treatment for the claimant’s acute symptoms.
With regard to Dr. Bryant’s surgery, we note that Dr. Bryant apparently treated three problelms in the knee during surgery. We also note that the surgery was only a couple of weeks before the hearing, and we note that according to both Dr. Bryant’s single follow-up note and the claimant’s testimony, the claimant has been doing better after this third surgery. The respondents seem to argue that Dr. Bryant’s surgery was not reasonably necessary because one of the three problems that Dr. Bryant addressed in surgery Dr. Mulhollan had diagnosed in the claimant’s second surgery as degenerative and asymptomatic. However, the respondents did not take Dr. Bryant’s deposition, and the respondents apparently did not ask Dr. Mulhollan to render any additional opinion in light of Dr. Bryant’s apparently successful third surgery. The success of Dr. Bryant’s surgery in relieving the claimant’s persistent knee problems after Dr. Mulhollan’s surgery failed to do so certainly indicates to us that Dr. Bryant’s surgery was appropriate and causally related to the admittedly compensable persistent post-second surgery knee symptoms. The preponderance of the credible evidence therefore establishes that Dr. Bryant’s surgery and treatment have been reasonably necessary to treat the claimant’s compensable knee injury.
The Claimant Did Not Usurp The Commission’s Power To Select The NewPhysician By Going To Dr. Bryant Prior To The Hearing
In Sandra Tatman v. A-1 Insulation, Inc., Full Workers’ Compensation Commission, Opinion filed December 2, 1997 (W.C.C. No. E514658), a majority of the Commission interpreted the law as permitting the Commission to hold the respondents liable for medical treatment provided by a new physician obtained after a change petition was filed but prior to the date of an Administrative Law Judge’s order granting the petition for a change to the doctor from whom the claimant sought treatment during the interim period between the petition and the order. Accord WrightContracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). Therefore, assuming the Commission has previously correctly interpreted the law, the fact that Dr. Bryant performed surgery after the petition was filed but before the date of the Administrative Law Judge’s order in this case should not, by itself, bar the Commission from approving a change to Dr. Bryant and finding the respondents liable for his July 13, 2001 surgery. As discussed above, we also conclude Dr. Bryant’s surgery was also reasonably necessary to treat the claimant’s persistent knee injury.
Therefore, we affirm the Administrative Law Judge’s appointment of Dr. Bryant as the claimant’s treating physician, and we find that the respondents are liable for all of Dr. Bryant’s treatment at issue, including the treatment and surgery rendered after the petition was filed but before a Commission order was filed designating Dr. Bryant as the claimant’s treating physician. Likewise, because the emergency room visit at issue was reasonably necessary for treatment of the claimant’s injury and excluded from the change of physician requirements under Ark. Code Ann. § 11-9-514(b), we find that the respondents are liable for this treatment as well.
Although no specific issues seem to have been raised or developed before the Administrative Law Judge or the Commission regarding managed care organizations, we note the presence of a document in the hearing record indicating that the respondents have contracted with a managed care organization and that Dr. Bryant is in the respondent’s managed care organization. This fact apparently resolved to the satisfaction of the parties any potential question as to whether a change to Dr. Bryant would satisfy the requirements of Ark. Code Ann. § 11-9-514(a)(3).
Because we conclude that (1) the emergency room treatment at issue is excluded from the change of physician procedures, and because we conclude that (2) the claimant did not legally usurp the Commission’s authority where she filed her petition for a change of physician before seeking treatment form Dr. Bryant, we do not reach the Administrative Law Judge’s alternative grounds for finding the respondents liable for the treatment at issue (i.e., finding liability based on the lack of evidence that the respondents ever complied with the notice requirements of Ark. Code Ann. § 11-9-514(c)). Likewise, the respondents have failed to explain how their contention that Dr. Mulhollan was in fact the claimant’s authorized physician has any bearing on the outcome of the issues presented in this case. Consequently, we make no finding at this time on whether or not the claimant acquiesced to the respondents’ selection of Dr. Mulhollan as the claimant’s authorized treating physician after terminating her treatment with Dr. Dickson.
The Administrative Law Judge’s Temporary Total Disability Award IsEstablished By The Preponderance Of The Evidence
The respondents seem to allude at times to a lack of off work slips in the record during the relevant period. The claimant has sustained a scheduled injury. To be entitled to temporary total disability benefits for a scheduled injury, the claimant need only show that she was within her healing period and was in fact off work. In addition, a failed attempt to return to work is not a bar to a temporary total disability award for a scheduled injury. See Farmers Cooperative v. Biles, ___ Ark. App. ___, ___ S.W.3d ___ (March 20, 2002). Here, there is no dispute over the fact that the claimant was off work during the period in question after a failed attempt to return to work shortly after her April 2001 surgery. Likewise, since the claimant’s symptoms did not resolve as initially hoped between the time of her April surgery and her July surgery, the greater weight of the evidence establishes that the claimant was within her healing period during the period in question. We find no error in the Administrative Law Judge’s temporary total disability award.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we affirm the Administrative Law Judge’s award in its entirety. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
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.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that she was entitled to additional benefits. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof. Accordingly, I would reverse the decision of the Administrative Law Judge.
The claimant is requesting that Dr. D’Orsay Bryant be her treating physician. The claimant contended that her original treating physician, Dr. Dickson, refused to treat her on or after April 28, 2001. However, the only evidence to support this contention is the claimant’s own self-serving testimony and it is not supported by the available medical evidence of record. The claimant conceded that no one had advised her that she could not return to Dr. Mulhollan and further acknowledged that she had made no effort to get in touch with Dr. Mulhollan after Dr. Dickson’s alleged refusal to see her. Further, on April 28, 2001, Dr. Samuel Peebles of Magnolia Hospital wrote that the claimant had “been under my care 4-28-01. Off work until seen by Dr. Mulhollan.” Obviously, as of April 28, even the claimant still considered Dr. Mulhollan to be her treating physician and either planned or was instructed to follow-up with him.
The evidence indicates that Dr. Mulhollan allowed the claimant to return to work no later than April 26 — a mere two days before she sought “emergency care” at the Magnolia Hospital. Regardless of whether the claimant subsequently re-entered a disabling healing period or otherwise became incapacitated to earn wages, that incapacity was the product of unauthorized and unreasonable medical treatment for which they are not responsible. Dr. Mulhollan never had another opportunity after April 26 to consider the claimant’s capacity to work. Accordingly, the claimant is not entitled to any temporary total disability benefits for that period of time.
Therefore, I respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner