ALLISON v. GES/FOOD GIANT STORES, 2002 AWCC 8


CLAIM NO. F006203

PAULA A. ALLISON, EMPLOYEE, CLAIMANT v. GES/FOOD GIANT STORES, EMPLOYER, RESPONDENT, CONTINENTAL CASUALTY COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 9, 2002

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

Claimant represented by the HONORABLE JOHN BARTTELT, Attorney at Law, Jonesboro, Arkansas.

Respondents represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed and remanded.

OPINION AND ORDER
The claimant appeals an opinion and order filed by the Administrative Law Judge on April 4, 2001. In that opinion and order, the Administrative Law Judge found that the claimant has failed to prove that a change of physician is reasonable and necessary for treatment of her compensable injury. After conducting a de novo
review of the entire record, we find that the Administrative Law Judge has applied the wrong legal standard in denying the claimant’s requested change of physician. We find that the claimant has established by a preponderance of the evidence that she is entitled to a one time change of physician. We remand this case to the Administrative Law Judge to determine whether Dr. Ricca is associated with any managed care entity certified by the Commission. If so, the Administrative Law Judge is directed to enter an order granting the claimant her one time change of physician to Dr. Ricca. If not, the Administrative Law Judge is directed to enter an order granting the claimant her one time change of physician to another neurosurgeon, selected by the Administrative Law Judge, who is associated with a managed care entity certified by the Commission.

The claimant sustained a compensable injury on May 22, 2000. She reported her injury to her supervisor and was sent by her employer the following day to see a family practitioner, Dr. Vonda Houchin. Dr. Houchin prescribed pain medication and a muscle relaxer and started the claimant on physical therapy. After a second visit, Dr. Houchin ordered a CT scan of the claimant’s lumbar spine and referred the claimant to Jonesboro neurosurgeon, Dr. Rebecca Barrett-Tuck. The CT scan revealed degenerative disc disease with a mild bulging annulus at the L3-L4 level, and degenerative disc disease with a moderately severely diffuse bulging annulus with mild associated ligamentum flavum buckling at the L4-L5 level. The changes at this level “combine to produce severe stenosis of the right lateral recess with more moderate stenosis of the left lateral recess. The descending L5 rootlets are likely compromised.” At the L5-S1 level “there is probably a small central HNP at this level mildly effacing the anterior thecal sac with no evidence of nerve root compromise.”

The respondent’s carrier would not approve the referral to Dr. Barrett-Tuck, and instead instructed the claimant to see Dr. Metcalf in Memphis. Dr. Metcalf examined the claimant and reviewed her CT scan on June 13, 2000. His impression afterward was that she suffered from lumbar degenerative disc disease with probable lumbar strain. He instructed her to discontinue physical therapy, prescribed Naprosyn and a home exercise program, and instructed the claimant to return for a follow-up in two weeks. At this two-week follow-up visit, Dr. Metcalf referred the claimant for an MRI, the conclusions of which were:

Small central HNP at L5-S1 without significant spinal canal or neuroforaminal stenosis. . . . Degenerative disc desiccation L4 through S1 with mild circumferential disc bulging at L4-L5 without significant spinal canal or neuroforaminal stenosis.

Dr. Metcalf reviewed the results of this study and on July 18, 2001, wrote, “I really do not see anything that I would look at and say was responsible for the persistent complaints of right lower numbness.” He released the claimant to return to light-duty work with restrictions on lifting more than 20 pounds, no bending, straining, or stooping, referred her for physical therapy three times a week for two weeks, and scheduled a follow-up at that time.

The claimant testified that the above restrictions were made for her when she returned to work; however, it was the fact that she was required to stand for extended periods of time that caused her pain. She tried to return to work on one day in June 2000. After standing for seven hours on her feet that day, she reported to her employer’s workers’ compensation representative that she didn’t think she would be able to return to work the following day. Following this attempt to return to work, the claimant went to see her own family physician, Dr. Michael Tedder, and he prescribed some medication for her.

The claimant then returned to see Dr. Metcalf, who sent her for a myelogram and post-myelogram CT scan. The findings from the lumbar myelogram were:

There is moderate loss of lordosis throughout the lumbar segments. . . . There is mild compression of the right lateral margin of the thecal sac at L4-5, resulting in minimal medial deviation in the passing L5 nerve root. . . . Minimal ventral indentation of the thecal sac is noted at L3-4, and L4-5. There is no evidence of spinal canal stenosis.

The results of the “CT spine lumbar w/o contrast” were:

L3-4: There is a mild 2 mm broad based posterior annular disc bulge, however, the spinal canal and neural foramina are widely patent.
L4-5: There is a 3 mm broad based posterior annular disc bulge, extending into the inferior existing neural foramina, however, the spinal canal and foramina remain within normal limits.
L5-S1: There is minimal 4 mm posterior central annular disc protrusion, indenting the ventral thecal sac, however, the spinal canal and exiting foramina are widely patent.

Reviewing these results at a follow-up visit on August 25, 2000, Dr. Metcalf wrote, “I really do not see anything to explain this lady’s pain and certainly nothing that would contraindicate her from returning to normal work activities.” He returned her to work and stated that she had obtained her maximum medical improvement as of this date. He also concluded that she did not have a rateable disability with regard to this injury.

When Dr. Metcalf released her to full duty, the claimant called her employer and was told by her supervisor that it was his understanding that she had voluntarily quit. She testified that she had remained in contact with her employer at all times during her absence. The claimant testified that she then called the workers’ comp. representative and requested a change of physician to Dr. Barrett-Tuck. She stated that she was told that they would not refer her to Dr. Barrett-Tuck or any other physician at the Tonymon, Barrett-Tuck, Ricca, and Eubanks Clinic; however, they would give her a referral to another doctor in Memphis or Little Rock. The workers’ compensation adjuster suggested, in fact, that the claimant return to Dr. Metcalf. The claimant testified that she did not want to return to him because she believes that there is something wrong with her back and he keeps telling her that she has just pulled her muscles. She states that she has consistently had the same symptoms which she has had from this injury from the start, and that she takes Vicodin for pain once or twice a day. This medication was prescribed by Dr. Houchin. The claimant has, at the time of the hearing, made an appointment with Dr. Ricca, who is another neurosurgeon in the Tonymon, Barrett-Tuck, Ricca, and Eubanks Clinic.

The claimant testified that she wanted to return to work. The claimant is 27-years-old and stated that she has worked her whole life, since she was 14 or 15. The claimant is currently on Medicaid, and Medicaid pays for her prescriptions.

At the hearing, the claimant contended that she was entitled to continued medical treatment, and she specifically requested treatment with Dr. Barrett-Tuck or another physician in her group. Alternatively, she asked that the Commission approve or appoint a physician. The respondents’ position was that the claimant had received adequate medical care and was not entitled to an award of additional medical benefits. Alternatively, if she was entitled to additional medical benefits, the respondents asked that she be referred to another physician outside of the Jonesboro clinic. The respondents stated that they would approve her returning to Dr. Metcalf or Dr. Houchin.

The Administrative Law Judge found in relevant part that:

The claimant has failed to prove that a change of physician is reasonable and necessary for treatment of her compensable injury.

As a threshold matter, we point out for the benefit of the Administrative Law Judge and the parties that the relevant language from Ark. Code Ann. § 11-9-514(a)(3)(A)(iii) states that the claimant employee shall be allowed one time to change physicians by petitioning the Commission. In this regard, Ark. Code Ann. § 11-9-514(a)(3)(A)(iii) provides:

Where the employer does not have a contract with a managed care organization certified by the commission, the claimant employee, however, shall be allowed to change physicians by petitioning the commission one (1) time only for a change of physician, to a physician who must either be associated with any managed care entity certified by the commission or be the regular treating physician of the employee who maintains the employee’s medical records and with whom the employee has a bona fide doctor-patient relationship demonstrated by a history of regular treatment prior to the onset of the compensable injury, but only if the primary care physician agrees to refer the employee to a physician associated with any managed care entity certified by the commission for any specialized treatment, including physical therapy, and only if such primary care physician agrees to comply with all the rules, terms, and conditions regarding services performed by any managed care entity certified by the commission.

There is no requirement in Section 514(a)(3)(A)(iii) that the claimant establish “that a change of physician is reasonable and necessary for treatment of the compensable injury.” Consequently, the Administrative Law Judge applied the wrong legal standard in considering the claimant’s request. Furthermore, there is no dispute in the present case that the claimant has never had the one time change of physician that she is entitled to under the law.

Likewise, although the respondents asserted at one point in their prehearing contentions that additional medical care is not reasonably necessary for treatment of the claimant’s compensable injury, respondents have also conceded liability for any additional medical treatment provided by Dr. Metcalf or Dr. Houchin. Under these circumstances, we see no merit to the respondents contention that the claimant is not entitled to any additional medical treatment, in light of (1) their concession that they would pay the bills for any treatment provided by Dr. Metcalf or Dr. Houchin and in light of (2) the claimant’s persistent problems.

Apparently, the Arkansas courts have not yet addressed what discretionary authority, if any, the Commission retains to deny a one time change of physician under Ark. Code Ann. § 11-9-514(a)(3)(A)(iii) where that statute now uses the term “shall.” In at least one prior unpublished opinion, the Full Commission has considered such factors as (1) the distance between the claimant’s home and the offices of the physician to whom the claimant seeks a change of physician and (2) whether a requested physician has a speciality consistent with the type of additional medical treatment which would appear to be reasonably necessary for a work-related injury. In the present case, there is no evidence in the record to indicate that physicians at the Barrett-Tuck Clinic are any further from the claimant’s home than her current treating physician in Memphis. Likewise, Dr. Metcalf, for whom the respondents are willing to accept liability for additional treatment, and Dr. Ricca, to whom the claimant wishes to change, share the same medical specialty. Under these circumstances, we see no rational grounds to deny the claimant a one time change of physician to Dr. Ricca if Dr. Ricca is in any managed care entity certified by the Commission.

On this point, the respondents argue for the first time in their brief on appeal that:

No proof has been offered that Dr. Barrett-Tuck or any other physicians in the clinic where she practices is associated with a managed care entity certified by the Commission. No evidence was presented that Dr. Barrett-Tuck was the regular treating physician of the claimant. Therefore, there has been a failure of proof under Subsection 514(a)(3)(A)(iii).

In the present case, the Administrative Law Judge has made no finding as to whether Dr. Ricca is or is not in any managed care entity certified by the Commission. The respondents seem to argue that it is incumbent upon the claimant to introduce into the record the list of physicians associated with the managed care entities certified by the Commission. However, we disagree on this point for several reasons.

First, we point out that it is the Administrative Law Judge, and not
the parties, who ultimately must determine which physician, if any, that the claimant will be referred to for a one time change of physician. Second, in many cases, the claimant or both parties ask the Administrative Law Judge to select a new physician solely at the Administrative Law Judge’s discretion. In fact, in their alternative contentions in the present case, the respondents have requested that if the Commission finds that the claimant is entitled to a change of physician, that the Commission select a physician who is not associated with the Barrett-Tuck Clinic. However, like the claimant, the respondents did not offer into the record any list of physicians in the State of Arkansas who are associated with a managed care entity certified by the Commission.

The Commission maintains in the Medical Cost Containment Unit the current copies of the various managed care organization provider lists referred to in Section 514(a)(3)(A)(iii). In addition, we are unaware of any authority or any persuasive rationale indicating that a partial or complete copy of every managed care organization provider list maintained by the Medical Cost Containment Unit of the Arkansas Workers’ Compensation Commission must be introduced into the hearing record in every request for a change of physician. In fact, the statutory requirement that the Commission consult the managed care provider lists in deciding a change of physician appears analogous to the statutory requirement that the Commission consult the AMA Guides in determining impairment. The Arkansas Court of Appeals has held that the Commission must consult the AMA Guides in determining impairment, even if the AMAGuides are not entered into the hearing record. Accord Polk County v.Jones, 74 Ark. App. 159, ___ S.W.3d ___ (2001). Absent further guidance from the Courts, we likewise find that, when deciding change of physician cases under current law, the Administrative Law Judges and the Commission are charged with the duty to consult the managed care organization provider lists maintained by the Medical Cost Containment Unit of the Commission to determine which physicians are associated with a certified managed care entity, even when the provider lists have not been entered into the hearing record by either party.

Consequently, we remand this case for the Administrative Law Judge, not the parties, to determine whether Dr. Ricca is associated with any managed care entity certified by the Commission. As indicated above, if Dr. Ricca is associated with any managed care entity certified by the Commission, the Administrative Law Judge is directed to enter an order granting the claimant her one time change of physician to Dr. Ricca. If Dr. Ricca is not associated with any managed care entity certified by the Commission, the Administrative Law Judge is directed to enter an order granting the claimant her one time change of physician to another neurosurgeon, selected by the Administrative Law Judge, who is associated with a managed care entity certified by the Commission.

The claimant’s attorney is entitled to a $200 fee pursuant to Ark. Code Ann. § 11-9-715(c)(1), and an additional $250 fee for prevailing on appeal.

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner

Commissioner Wilson dissents.