BENNETT v. EARTH GRAINS OF LITTLE ROCK, 1997 AWCC 141

CLAIM NO. E317764

BRENDA BENNETT, EMPLOYEE, CLAIMANT v. EARTH GRAINS OF LITTLE ROCK, EMPLOYER, RESPONDENT and CIGNA INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 17, 1997

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant appeared pro se at the hearing. On appeal, claimant represented by LANA PARKS DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents represented by MICHAEL R. MAYTON and DAVID S. WILSON, III, Attorneys at Law, West Memphis, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Respondents appeal an opinion of the Administrative Law Judge granting claimant’s request for a change of physician and finding that the treatment rendered by, and at the direction of, Drs. Rutherford and Gellman was reasonable and necessary.

[3] Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark. Code Ann. § 11-9-705 (a)(3) (Repl. 1996). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Grimes v. North AmericanFoundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). After ourde novo review of the entire record, we find that claimant has met her burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.

[4] The parties stipulated that on or about February 28, 1993, claimant suffered from compensable bilateral carpal tunnel syndrome. Carpal tunnel releases were performed by Dr. Michael M. Moore in November 1993 and January 1994. Dr. Moore released claimant in April 1994 and claimant returned to work. Claimant continued to have symptoms in her hands and wrists. In a June 15, 1994 report, Dr. Moore stated that additional surgery would not be an option until at least 12 months following her previous surgeries. He added that if claimant continued to have symptoms, then diagnostic studies should be repeated. He likewise recommended a bone scan to rule out any inflammatory process.

[5] Claimant returned to Dr. Moore on July 11, 1994. Instead of waiting 12 months after her surgeries, Dr. Moore recommended that the diagnostic studies be repeated and that claimant be evaluated by Dr. Reginald J. Rutherford at the Pain Management Center. After the electrodiagnostic studies were interpreted as normal, Dr. Moore authored a report basically stating that claimant had overuse syndrome; that she would not need treatment or surgery, unless her subjective complaints were documented by objective findings; and that she should simply find employment that did not require the use of her hands.

[6] Claimant continued to have difficulties with her upper extremities and tried to return to Dr. Moore. However, Dr. Moore refused to see claimant and recommended that she “see Dr. Reginald Rutherford at the Pain Care Center at Doctor’s Hospital. Perhaps Dr. Rutherford could provide her with medications which would improve her symptoms.” Claimant informed the employer that Dr. Moore would not schedule an appointment for her. Thinking that Dr. Moore had in fact referred her to Dr. Rutherford, claimant saw Dr. Rutherford on March 1, 1995. Dr. Rutherford’s clinical examination failed to reveal any objective or conclusive abnormality. Dr. Rutherford, as had Dr. Moore, recommended a bone scan of claimant’s upper extremities. The employer apparently would not authorize any continued treatment by Dr. Rutherford. A bone scan was not authorized or performed. In April 1995 claimant, admittedly on her own, presented to Dr. Harris Gellman at the University Hospital of Arkansas. Dr. Gellman’s physical examination revealed several positive findings and he ordered electrodiagnostic studies, which objectively revealed recurrent, chronic compression of bilateral carpal tunnel.

[7] Since Dr. Moore, claimant’s authorized treating physician, refused to see claimant or refer her and the employer failed to authorize additional treatment, the change of physician rules do not apply. Sanyo Mfg. Corp. v.Farrell, 16 Ark. App. 59, 696 S.W.2d 779 (1985). Thus, claimant was free to seek treatment from a physician of her own choosing, as long as any treatment received was reasonable and necessary.

[8] At the time Dr. Moore refused to see claimant any more, claimant obviously was still having symptoms which needed medical attention. Dr. Rutherford’s examination and recommendation for further diagnostic testing was reasonable and necessary, especially since claimant’s condition was eventually confirmed by the positive electrodiagnostic studies ordered by Dr. Gellman. Further, claimant testified that the conservative treatment provided by Dr. Gellman has improved her condition. Therefore, we find that the above treatment has been reasonable and necessary.

[9] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant is entitled to a change of physician to Dr. Gellman. Further, we affirm the opinion of the Administrative Law Judge finding that the treatment rendered by, and at the direction of, Drs. Rutherford and Gellman was reasonable and necessary. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.

[10] IT IS SO ORDERED

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[11] Commissioner Wilson dissents.

[12] DISSENTING OPINION
[13] I respectfully dissent from the majority’s opinion granting the claimant a change of physician and finding that the treatment rendered by and at the direction of Dr. Reginald Rutherford and Dr. Harris Gellman was reasonable and necessary. Based upon my de novo review of the record, I find that the decision of the Administrative Law Judge should be reversed.

[14] The claimant suffered from compensable bilateral carpal tunnel syndrome in late 1992 or early 1993. This injury was reported to the respondent on February 28, 1993, and accepted as compensable. Dr. David A. Miles performed nerve conduction velocity tests on the claimant on October 26, 1993, which noted the presence of bilateral carpal tunnel syndrome. The claimant sought treatment from Dr. Michael Moore who diagnosed the claimant with bilateral carpal tunnel syndrome and overuse syndrome. Dr. Moore performed a right carpal tunnel release on the claimant on November 30, 1993, and a left carpal tunnel release on January 27, 1994.

[15] Dr. Moore opined that the claimant reached the end of her healing period on April 18, 1994, and released her from his care without any permanent impairment. Dr. Moore stated:

At this time, her examination does not suggest any evidence of recurrent carpal tunnel syndrome. Ms. Bennett understands that she may experience some symptoms in her hands for the next few months; however, her symptoms are stable and I do not feel she requires any further treatment.

[16] In addition, in a letter dated April 26, 1994, Dr. Moore wrote:

Ms. Bennett was recently seen in my office on 04/18/94 for evaluation. At that time, she complained of some pain in her right hand. Examination did not suggest any evidence of recurrent carpal tunnel syndrome.
It is my opinion that Ms. Bennett has reached her healing period in regard to her carpal tunnel releases. At this time, she does not have any impairment of either her right or left hands.

[17] Dr. Moore instructed the claimant to return on an “as needed” basis. The claimant continued to complain of hand and wrist pain and she sought further treatment from Dr. Moore. Dr. Moore referred the claimant to Dr. Reginald Rutherford for repeat nerve conduction velocity studies and an EMG on August 19, 1994. With respect to the results of these tests, Dr. Rutherford stated:

Current examination demonstrates a negative Phalen’s test bilaterally, normal function of the abductor pollicis brevis muscle bilaterally and absence of hypesthesia on pinprick testing, median nerve distribution either upper extremity.

[18] In addition, Dr. Rutherford opined that “the nerve conduction study and needle examination are normal. There is no evidence of median nerve dysfunction in the present study.”

[19] The claimant again sought treatment from Dr. Moore on October 3, 1994. Dr. Moore explained that the claimant was not a candidate for further surgery or treatment for her current complaints. Dr. Moore also stated that he was unable to document her subjective complaints with objective findings and noted that validity testing indicated a submaximal effort on the part of the claimant.

[20] In a letter dated December 21, 1994, Dr. Moore stated:

It was my opinion that Ms. Bennett had over use syndrome. Unfortunately, there is no specific medical treatment or surgery which can improve this problem. As I have stated in the past, it was my opinion that Ms. Bennett should try to avoid repetitive work if possible . . . Finally, Ms. Bennett underwent validity testing which suggested a submaximal effort. It was my opinion that Ms. Bennett was not a candidate for any further surgery . . . I have seen Ms. Bennett on numerous occasions following surgery. In addition I have seen her after she reached her healing period for follow up evaluation. Ms. Bennett has undergone a repeat nerve conduction and EMG study which is normal. At this time, I do not feel she requires any surgical treatment for her hands. If Ms. Bennett is still bothered by her hand symptoms, I would recommend that she see Dr. Reginald Rutherford at the Pain Care Center at Doctor’s Hospital. Perhaps Dr. Rutherford could provide her with medications which would improve her symptoms. Let it be noted that I feel the best treatment for Ms. Bennett would be to try to find work which is less stressful to her hands.

[21] On her own initiative, the claimant sought treatment from Dr. Rutherford. There was some confusion that Dr. Moore had referred the claimant. However, a letter dated March 1, 1995, clarifies this issues:

Mrs. Bennett was seen at The Pain Care Center at Doctors Hospital on March 1, 1995. She was self referred. It was presumed that she had been referred by Dr. Moore but this clarified by contact with his office . . . (Emphasis added.)

[22] Dr. Rutherford’s examination revealed normal range of movement of the cervical spine, both shoulders, both elbows and both wrists. Dr. Rutherford found that his examination was devoid of any objective or conclusive abnormality. In short, Dr. Rutherford found no objective findings documenting the claimant’s subjective complaints.

[23] On her own initiative, the claimant sought treatment from Dr. Harris Gellman on April 17, 1995. Dr. Gellman ordered nerve conduction velocity tests to be conducted on the claimant when he could not make a definitive diagnosis. These tests revealed a mildly abnormal NCS, a normal EMG and showed mild chronic compression of bilateral carpal tunnel. Dr. Gellman did not recommend repeat carpal tunnel releases. He did, however, based on her chronic symptoms, recommend a release of the de Quervain’s bilaterally. The claimant has not undergone this procedure.

[24] The claimant seeks a change of physician to Dr. Gellman and I find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to a change of physician. Ark. Code Ann. § 11-9-514 (1987) sets forth a strict procedure which must be followed if an injured employee desires to change physicians after treatment is provided. Where the employer makes the initial selection of a physician, a claimant may petition the Commission once for a change of physician. The employer is not liable for a new physician’s services unless the claimant follows this procedure. American TransportationCo. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983); WrightContracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750
(1984). Ark. Code Ann. § 11-9-514 (a)(2) provides:

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.

[25] However, a change of physician, even where the employer makes the initial selection, will not be automatically granted merely because the claimant requests the change. Even though a claimant is not required to establish a compelling reason or circumstance to justify a first change of physician if the employer makes the initial choice, the Commission must review each request to assure that the change is justified. In addition, after notification of a work-related injury, the employer or insurance carrier must deliver to the employee a notice (AR-N) which explains the claimant’s rights and responsibilities regarding a change of physician. Ark. Code Ann. § 11-9-514
(c)(1) (1987). If this notice is not furnished to the employee, the change of physician rules do not apply, and the employer may be responsible for expenses that are incurred, even though the claimant failed to follow the proper procedure. Ark. Code Ann. § 11-9-514 (c)(2) (1987).

[26] In the present claim, the claimant seeks a change from Dr. Moore to Dr. Gellman. In support of her request, the claimant testified that Dr. Moore refused to treat her so she sought treatment from Dr. Gellman. The claimant stated that she was not referred to Dr. Gellman, but that she got his name out of the phone book.

[27] The Administrative Law Judge erred when he retroactively granted the claimant’s change of physician to Dr. Gellman. Likewise, it is my opinion that the majority has erred by affirming this retroactive change. In AmericanTransportation Co. v. Payne, supra, the Arkansas Court of Appeals found that the Commission does not have the discretion to retroactively approve a change of physician. The Court stated in Payne at page 60:

The evidence indicates that the respondent fully complied with § 81-1311 (subsequently recodified at Ark. Code Ann. § 11-9-514), as amended by Act 290 of 1981, by providing the claimant with medical care immediately following his injury and by sending him Commission form A-29 (now form AR-N), which sets out the requirements for a change of physician. The evidence also indicates that there was no medical emergency situation, inasmuch as Dr. Lester initially treated the claimant conservatively and did not perform the myelogram and surgery until some three months after he first examined the claimant. At no time prior to the hearing on July 29, 1982, did the claimant request that the Commission approve a change of physician. Ark. Stat. Ann. § 81-1311, as amended, clearly provides that treatment or services furnished by any physician other than the one selected according to the outline procedures, except emergency treatment, shall be at the claimant’s expense. (Emphasis added.)

[28] It is clear from the Court’s holding in Payne that the Commission does not have the authority to grant a change of physician retroactively. Accordingly, I find that the claimant’s request to change physicians to Dr. Gellman cannot be granted retroactively. Therefore, the respondent is not liable for any charges incurred by the claimant for her visits to Dr. Gellman.

[29] I would note that the claimant received notification of the change of physician rules and the AR-N was signed by the claimant on April 22, 1993. Therefore, the claimant was properly informed of the proper procedure for changing physicians.

[30] The evidence clearly demonstrates that the claimant failed to comply with the provisions of Ark. Code Ann. § 11-9-514. The treatment claimant received from Dr. Gellman was undoubtedly not emergency treatment. Dr. Moore stated in a letter dated October 3, 1994, that the claimant did not require any further medical treatment. The only evidence in support of the claimant’s contention that she is entitled to a change of physician is her self-serving testimony that Dr. Moore refused to see her. A claimant’s testimony is never considered uncontroverted. Lambert v.Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985).Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457
(1994). It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods,47 Ark. App. 71, 884 S.W.2d 626 (1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). I find the claimant’s testimony not to be credible. Therefore, based upon my denovo review of the record, I find that the claimant is not entitled to a change of physician to Dr. Gellman.

[31] The claimant also contends that she is entitled to payment for the medical treatment provided by Drs. Rutherford and Gellman. I find that the medical treatment rendered by Dr. Rutherford subsequent to August 19, 1994, as well as the treatment rendered by Dr. Gellman is not reasonable and necessary medical treatment.

[32] Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary. Norma Beatty v. BenPearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (D612291); B.R. Hollingshead v. Colson Caster, Full Workers’ Compensation Commission, Aug. 27, 1993 (D703346). In workers’ compensation cases, the burden rests upon the claimant to establish her claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel,50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. MeadContainer Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994).

[33] The evidence establishes that the respondent provided the claimant with all reasonable and necessary medical treatment. The respondent sent the claimant to Dr. Moore who performed carpal tunnel releases on both the claimant’s left and right arms. In addition, Dr. Moore provided the claimant with follow up care for over nine months after her carpal tunnel symptoms stabilized. Moreover, Dr. Moore recommended claimant see Dr. Rutherford who performed nerve conduction studies which confirmed that the claimant’s condition had stabilized. Dr. Rutherford agreed with Dr. Moore that further treatment for the claimant’s carpal tunnel syndrome was no longer necessary.

[34] The evidence also shows that the treatment the claimant sought from Dr. Rutherford on March 1, 1995, was on her own. She was not referred to Dr. Rutherford by Dr. Moore. This fact is clearly established by Dr. Rutherford’s letter of March 1, 1995 which states that the claimant was self referred. Dr. Rutherford found that the claimant’s carpal tunnel syndrome had resolved. The claimant also sought treatment on her own from Dr. Gellman. Even Dr. Gellman found that further treatment of the claimant’s carpal tunnel syndrome was not necessary. Clearly, the treatment rendered by Dr. Rutherford subsequent to August 19, 1994, and the treatment rendered by Dr. Gellman is not a reasonable necessary medical expense. I find that the claimant failed to prove by a preponderance of the evidence that the respondent should be liable for the treatment provided by Drs. Rutherford and Gellman.

[35] The claimant has additionally failed to prove by a preponderance of the evidence that her de Quervain’s tendinitis arose out of and during the course of her employment with the respondent. Dr. Gellman was the only physician to diagnose the claimant with this condition and he never addressed whether or not it arose out of her employment with the respondent. In addition, the claimant had not worked for the respondent for over six months when she was diagnosed with de Quervain’s tendinitis.

[36] Accordingly, based upon my de novo review of the record, and for the reasons discussed herein, I find that the Administrative Law Judge’s decision granting the claimant a change of physician to Dr. Gellman should be reversed. I also find that the medical treatment supplied by Dr. Rutherford subsequent to August 19, 1994 and by Dr. Gellman is not reasonable necessary medical treatment and the decision of the Administrative Law Judge finding otherwise should be reversed. I further find that the claimant de Quervain’s tendinitis is not related to her employment with the respondent. Therefore, I respectfully dissent from the majority opinion.

[37] MIKE WILSON, Commissioner