CLAIM NO. E205952
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 3, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on June 28, 1994. In that opinion and order, the administrative law judge found that the respondents are responsible for medical expenses related to the claimant’s hospitalization on May 17, 1993, and that the claimant is entitled to additional temporary total disability compensation. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed in part and reversed in part.
[8] However, although this report and other reports drafted by Dr. Burks indicate that the claimant’s back problems were the purpose of the hospitalization, the claimant had seen Dr. Burks on May 16, 1993, the day before the hospitalization, and Dr. Burks’ report of that visit indicates that the claimant’s primary complaint involved “migraine headaches”. Although the report does indicate that the claimant was also complaining of back problems to some extent, little emphasis is placed on the back related complaints. Furthermore, the claimant’s ex-wife advised the respondent employer that the claimant had been hospitalized due to migraine headaches. At the hearing, she admitted doing so. She testified that she did this because the respondent carrier refused to authorize the treatment, and she testified that she related the hospitalization to headaches so that she could file the expenses under a group insurance plan. However, the claimant’s testimony indicates that he was not sure whether his group plan was in effect at the time. Furthermore, his testimony indicates that he had suffered from frequent migraine headaches since he sustained a neck injury while employed by a different employer, and he testified that he thought that the headaches would have been excluded as a preexisting condition even if the policy was in effect. [9] Consequently, we find that the evidence suggests that complaints other than back complaints may have been the primary reason for the claimant’s hospitalization. Furthermore, although the medical records indicate that he did receive some treatment for his back while he was hospitalized, there is nothing to suggest that this treatment differed to any great extent from the treatment that he received as an outpatient both before and after the hospitalization. In this regard, the only treatment provided to the claimant for his back while he was in the hospital consisted of medication and physical therapy. However, he was prescribed the same medication when he was discharged from the hospitalization, and the record indicates that he had previously received essentially the same type of physical therapy as an outpatient. [10] In short, we find that the preponderance of the evidence fails to show that the claimant received any treatment for the compensable injury while hospitalized that he could not have received as an outpatient. Furthermore, the evidence indicates that the claimant may have been hospitalized primarily for conditions unrelated to the compensable injury. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that the hospitalization was reasonably necessary for treatment of the compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [11] However, the preponderance of the evidence does indicate that he was experiencing temporary back problems which were related to the compensable injury during the time he was in the hospital from May 17, 1993, through May 24, 1993, that would have prevented him from working even if he had not been experiencing other problems or if he had not been hospitalized. Likewise, he was off work from July 24, 1993, through August 17, 1993, due to back problems related to the compensable injury. Therefore, we find that the claimant is entitled to temporary total disability compensation for these periods of time. Thus, we find that the administrative law judge’s decision in this regard must be affirmed. [12] Accordingly, based on our 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 his hospitalization was reasonably necessary for treatment of the compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. However, we find that the claimant proved by a preponderance of the evidence that he is entitled to temporary total disability compensation for the period extending from May 17, 1993 through May 24, 1993, and from July 24, 1993 through August 17, 1993. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. [13] 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. § 11-9-809The patient is a white male who comes in with history of pain in the back radiating down into the left leg. The patient states that over the last 2-3 days he has had increasing pain and severity. He still persists in having pain. It appears that his out patient care has not been satisfactory. He is admitted for intensive conservative therapy. The patient also gives history of having approximately 33 lb. weight loss.
(1987). For prevailing in part on this appeal before the Full Commission, 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 (b) (1987). [14] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman
[15] Commissioner Tatum concurs and dissents.[16] CONCURRING AND DISSENTING OPINION
[17] I concur with part and dissent with part of the majority’s decision. Specifically, I concur with the decision finding that claimant has failed to prove by a preponderance of the credible evidence that he is entitled to additional medical benefits related to a hospitalization on May 17, 1993 through May 24, 1993. However, I respectfully dissent from the majority’s determination finding that claimant is entitled to additional temporary total disability benefits.
[19] A review of Magic Mart, indicates that this is not the proposition for which this case is cited. The Administrative Law Judge seemingly implies that Magic MartThe evidence shows that the claimant became dissatisfied with Dr. Miller in June of 1992 and entered into a mutually agreed upon a [sic.] change of physician to Dr. John Wilson, an orthopedic specialist. (Respondents’ Exhibit 1, Page 11) See: Magic Mart vs. Little, 12 Ark. App. 325, 676 S.W.2d 756 (1984). This change of physician did not negate claimant’s right to seek occasional care from the local, company physician when claimant’s symptoms became acute.
holds that whenever there is a mutually agreed upon change of physician, it is not or does not qualify as a statutory change of physician or that a claimant can continue to see a company physician regardless of who the primary treating physician is. This is not accurate. Magic Mart pre-exists the 1986 revisions, as well as, the most recent revisions of the aforementioned statute. Magic Mart stands for the proposition that under prior law whenever there is a mutually agreed upon change of physician from a company physician to a physician that does not constitute claimant’s one time only change of physician. Magic Mart does not state that anytime there is a mutually agreed upon change of physician that it is outside the change of physician rules. Additionally, Magic Mart does not hold that a claimant can indefinitely continue to return to a company physician who is no longer the primary treating physician. Thus, in my opinion, the Administrative Law Judge is misleading in use of the cite. [20] I concur in part and dissent in part with the majority’s determination and include my opinion concerning the Administrative Law Judge’s use of Magic Mart. [21] ALLYN C. TATUM, Commissioner [22] Commissioner Humphrey concurs in part and dissents in part.
[23] CONCURRING AND DISSENTING OPINION
[24] I concur with the finding in the principle opinion that claimant is entitled to benefits for temporary total disability from May 17 to May 24, 1993 and July 24 to August 17, 1993. However, I must respectfully dissent from the finding that claimant’s hospitalization was not reasonably necessary and related to the compensable injury.