CLAIM NO. E209797.
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 13, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CAROLYN LEE WHITEFIELD, Attorney at Law, Texarkana, Arkansas.
Respondents represented by the HONORABLE WILLIAM G. BULLOCK, Attorney at Law, Texarkana, Texas.
Decision of administrative law judge: Affirmed as modified.
OPINION AND ORDER
The respondent appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed May 19, 2000. The administrative law judge found that the present claim for additional worker’s compensation is not barred pursuant to Ark. Code Ann. § 11-9-702(b). The administrative law judge found that the respondent has willfully and intentionally failed to pay for the incurred medical treatment received by the claimant under the care of Dr. Bundrick subsequent to the medical service of February 10, 1998, and that a thirty-six percent (36%) penalty is payable to the claimant on said incurred unpaid bills pursuant to Ark. Code Ann. § 11-9-802(d) and (e). The administrative law judge found that the respondent has refused to comply with the October 29, 1997 order of an administrative law judge and is in contempt of the Commission.
The Full Commission has reviewed the entire record de novo. We affirm the administrative law judge’s finding that Ark. Code Ann. § 11-9-702(b) does not bar the present claim for additional worker’s compensation. We affirm the finding that the respondent has willfully and intentionally failed to pay for medical treatment received by the claimant from Dr. Bundrick, and that the respondents must pay a 36% penalty on incurred unpaid bills pursuant to Ark. Code Ann. § 11-9-802(d) and (e). We affirm the finding that the respondent has refused to comply with the administrative law judge’s October 29, 1997 order, and that the respondent is therefore in contempt of the Commission. However, we suspend payment of the fine imposed by the administrative law judge, contingent on the respondent’s compliance with past and prospective Commission orders in this matter. The Full Commission thus affirms, as modified, the decision of the administrative law judge.
I. HISTORY
The parties stipulated that Richard Hartshorn Angell, age 47, sustained multiple compensable injuries on June 8, 1992. Mr. Angell testified that he was pulled within two rollers of a machine. The employee reported injuries to his upper extremities, low back, and lower extremities. The respondents began paying temporary total disability compensation from the date of injury.
The healing period for the claimant’s left leg injury ended on or before May 31, 1993; the respondents ceased paying temporary total disability after that date. The claimant was assigned a 23% impairment to the left lower extremity, which the respondents accepted and paid. Mr. Angell returned to work for the respondent-employer from June 1, 1993 until November 8, 1995. The record includes a Health Insurance Claim Form signed by Dr. Mitchell Young, a general surgeon, on December 13, 1995. According to this document, Dr. Young administered an “injection of joint” on six occasions from October 16, 1995 through December 12, 1995. The diagnosis was “synovitis” of the right ankle, left ankle, and right shoulder, for a date of injury of June 8, 1992.
In an opinion filed February 9, 1996, an administrative law judge denied a request by the claimant for a change of physician. The request for change of physician involved additional medical treatment for the claimant’s back and right leg. The administrative law judge found that the claimant was entitled to an independent medical evaluation to be performed by Dr. John Wilson, an orthopedic surgeon. The administrative law judge directed the respondent to arrange and pay for said evaluation. After evaluating the claimant in May, 1996, Dr. Wilson diagnosed a history of lumbosacral strain; mild degenerative disc disease with no evidence of sciatica or nerve root damage; morbid obesity; and “By MRI, torn cartilage, medial meniscus, possible torn cartilage right lateral compartment, right knee.” Dr. Wilson recommended that the claimant not undergo surgery until he showed he was able to lose weight.
Mr. Angell claimed entitlement to additional worker’s compensation. The claimant contended that all his current physical problems involving his right leg, as well as his low back, were directly and causally related to the June 8, 1992, admitted incident; that the respondent should be held responsible for all past medical and related expenses, together with continued reasonably necessary medical treatment for the right leg and back. The claimant contended that his right leg was impaired as a result of his compensable injury, and that the respondent was responsible. The claimant asserted that the amount of permanent impairment to his left lower extremity exceeded the rating paid by the respondent.
The respondent contended that it had paid all appropriate benefits for the June 8, 1992 injury; the respondent controverted all additional benefits. The respondent asserted that any injury to the right leg and/or low back was “a minor injury which had long since resolved”, and that additional problems with the right leg and back, if any, were nonwork-related.
After a hearing before the Commission, an administrative law judge filed an opinion on October 29, 1997. The administrative law judge found that the claimant had shown that his physical problems involving his right leg and back were directly and causally related to the compensable injury. The administrative law judge recognized Dr. William S. Bundrick as the claimant’s primary medical provider. The administrative law judge found that the respondents were responsible for continued reasonably necessary medical and related treatment and/or referrals provided by Dr. Bundrick. The administrative law judge found that the claimant had failed to show that he was entitled to additional permanent impairment benefits beyond those previously paid; however, “The nature and extent of claimant’s disability, as well as claimant’s entitlement to further indemnity benefits requires additional development of the medical evidence, and is by necessity specifically reserved.”
The administrative law judge directed the respondent to pay outstanding medical and related expenses consistent with his findings of fact, and found that the respondent remained responsible for continued reasonably necessary medical treatment. Neither party appealed the administrative law judge’s October 29, 1997 opinion, which opinion is now res judicata.
Mr. Angell testified that he attempted, unsuccessfully, to arrange treatment with Dr. Bundrick shortly after the administrative law rendered his October 29, 1997 opinion. Carolyn Lee Whitefield, attorney for the claimant, wrote to the administrative law judge on January 30, 1998:
I have requested Respondent’s attorney to have his client make an appointment with Dr. Bundrick. Mr. Bullock sent the enclosed letter dated December 1, 1997. I have requested that he have the insurance carrier to simply notify Dr. Bundrick’s office that they will pay for an evaluation and reasonably necessary treatment for Mr. Angell’s injuries. To date that has not been done. Please enforce by whatever method you deem appropriate that Respondents comply with your Opinion filed October 29, 1997.
Mr. Bullock responded in a letter to the administrative law judge dated February 2, 1998:
Ms. Whitefield and I have had several conversations about getting Mr. Angell evaluated by Dr. Bundrick, and I have communicated to Sedgwick the necessity to follow up on scheduling an appointment for that purpose. Ms. Buffy Workman of Sedgwick advises that Dr. Bundrick’s office manager, Wayne Smith, had, even before Ms. Whitefield’s letter, been contacted and advised that Cooper Tire is requesting that an appointment be scheduled for Mr. Angell to receive the evaluation contemplated. Mr. Smith has assured Ms. Workman that he will follow up with Mr. Angell to schedule an evaluation. As the letter I sent to Dr. Bundrick back on December 1, 1997 [the letter counsel for Claimant attached to her January 30 correspondence to you], Cooper Tire has been attempting to get Dr. Bundrick’s treatment of Mr. Angell going for several weeks. Depending upon what Dr. Bundrick finds upon evaluation, and what treatment(s) he suggests, a decision may have to be made as to what extent further treatment is within the framework of the Opinion entered in this case on October 29, 1997. That question, however, is premature, since the evaluation is still pending.
The administrative law judge wrote to the parties on February 9, 1998:
As you are both aware, no appeal was taken from the October 29, 1997, Opinion and Order. Accordingly, the decision is now final. The findings of fact and conclusions entered, inter alia, included: that claimant has proven, by a preponderance of the credible evidence, that his physical problems involving his right leg and back were directly and causally related to the June 8, 1992, admitted injury; that respondents remained responsible for continued reasonably necessary medical and related treatment provided by Dr. William S. Bundrick, as well as any legitimate referrals by Dr. Bundrick; and, that Dr. Bundrick was recognized as claimant’s primary medical provider.
I am compelled to point out that my Opinion does not “require” that Dr. Bundrick be “guided” by the opinion of Dr. John Wilson. While Dr. Bundrick may consider any recommendations, I have not restricted his treatment, if any. Dr. Bundrick is the designated primary medical provider and any recommendations should be considered following additional development of the medical evidence which was approved by the aforesaid Opinion and Order.
Dr. Bundrick did not see the claimant until February 10, 1998, at which time he gave the following impression in correspondence mailed to the carrier:
Torn medial and lateral menisci with chondromalacia of the right knee. . . . At the present time the patient will continue to be on observation for the right knee, but if his symptoms increase, particularly in the mechanical symptoms, then I think he will require arthroscopic surgery on the knee. I would also recommend referral of this patient to Dr. David Cavanaugh for his low back pain, and pain in the left leg which appears to be from reflex sympathetic dystrophy.
The claimant testified that he attempted to see Dr. Cavanaugh, but that “we were never able to get that okayed.”
William G. Bullock wrote to Carolyn Whitefield on May 28, 1998:
You recently called indicating that Mr. Angell was complaining [a] that Cooper Tire has refused to let him see Dr. Cavanaugh; and [b] that Cooper Tire has refused to let him see Dr. Bundrick. I will deal with the second complaint first. Cooper Tire has not refused to let Mr. Angell see Dr. Bundrick. Cooper stands ready and willing for Mr. Angell to receive from Dr. Bundrick, the treating physician, all treatments reasonable and necessary and causally related to the injury found by Judge Greenbaum to be compensable and subject to further treatments. If Dr. Bundrick has refused treatment, it has not been at the request or with the knowledge of Cooper Tire. I would be happy to clarify this with Dr. Bundrick’s office if you feel that is necessary.
With regard to the treatment Claimant seeks with Dr. Cavanaugh, as Mr. Angell is aware, Dr. Cavanaugh is not an approved physician under Cooper Tire’s H.M.O. Pursuant to Arkansas Code Annot. § 11-9-508 (Repl. 1996), the AWCC has adopted Rule 33 of the Rules of the Arkansas Workers’ Compensation Commission. That rule, entitled “Managed Care”, provides that the MCO of the employer will provide all medical treatment for work related injuries. While Dr. Cavanaugh is not an approved physician, Cooper Tire would suggest, and has suggested to Dr. Bundrick, two physicians with the same specialty as Dr. Cavanaugh who are within the HMO’s approved list. These doctors are Dr. Steven Cathey and Dr. Anthony Russell, both Board Certified Neurologists in Little Rock. Dr. Bundrick has indicated he does not object to either of these doctors, and would be happy to refer Claimant to one of them if Claimant agreed.
Mr. Angell filed another claim for additional worker’s compensation. A prehearing order with Judge Andrew Blood was filed December 2, 1999:
The claimant contends that respondent has failed to comply with the prior Order in this claim entered by Administrative Law Judge David Greenbaum relative to medical treatment under the are (sic) of Dr. William S. Bundrick; that claimant continues to require medial (sic) treatment for his right leg and back injury growing out of the June 8, 1992, injury, as well as his left leg; that respondent has refused to honor claimant’s treatment by Dr. Bundrick or referrals therefrom; that claimant has continued to receive treatment for his compensable injury under the care of Dr. Mitchell Young after respondent refused to honor his treatment with Dr. Bundrick; that respondent has not paid incurred unpaid medial treatment by the claimant with Dr. Bundrick in accordance with the prior October 29, 1997, Order of the administrative law judge; that the claimant has not reached the end of his healing period relative to his right leg and back injury of June 8, 1992. Claimant seeks the afore benefits and reserve (sic) the issue of permanency relative to his back and right leg. The respondent contends that claimant’s claim for additional benefits is barred by the statute of limitation; that in the event of an award of benefits to the claimant it is entitled to an off-set pursuant to Ark. Code Ann. § 11-9-411.
Dr. Bundrick saw the claimant on December 6, 1999, his first visit since February 10, 1998. Dr. Bundrick reported:
Again, it is my recommendation that this patient have arthroscopic surgery on the knee for removal of the torn menisci and shaving of the chondromalacia. Since the time that I last saw the patient in February 1998, he has also had to require intermittent analgesics from this office. Although, on 2-10-98, we recommended arthroscopic surgery in my report concerning this patient’s knee, and my office manager informs me that he has been unable to get this approved through the workman’s compensation.
Counsel deposed Aubrey Wayne Smith, the assistant administrator for Dr. Bundrick at the Bone Joint Clinic, on January 18, 2000. Mr. Smith testified:
A. My first contact as far as reverifying that Mr. Angell could come back and see the doctor was with Buffy Workman at Sedgwick James November the 13th, the date of the workers’ comp set-up form, of `97. There was a period of time that Buffy and I did not talk. She did call back later and state that we were okay to see Mr. Angell for a one-time evaluation on his knee, which we did in February of `98.
Q. That was the February 10, `98 date you mentioned earlier?
A. Right. So there was a 90-day period that the process went through verification and, yes, we could see him for a one time. From that time, Dr. Bundrick recommended that Mr. Angell see a neurosurgeon for his back. Did not specify which neurosurgeon. Buffy called to state there was a neurosurgeon in Little Rock that the company wanted to send him to.
Mr. Angell had seen Dr. Cavanaugh in the past, which is a Shreveport neurosurgeon.
Transportation to the Shreveport area was closer, and Dr. Bundrick supported the fact that Mr. Angell should see Dr. Cavanaugh for the back problem.
Q. Let me ask you. Did Mr. Angell request to go see Dr. Cavanaugh?
A. Dr. Bundrick recommended that he see him, I believe, in a narrative report on the 10th. . . . The recommendation was for him to see Cavanaugh again.
Q. For his back?
A. For his back. Because Dr. Bundrick had moved away from treating the back area. And Buffy at that point told me that she would have to get with Cooper’s legal representation and Mr. Angell’s representation legally and that they would hash out whether he could or could not go to Dr. Cavanaugh.
Q. Do you have a date for that conversation?
A. It was 3-27-98, which would be at the bottom portion of that Exhibit 1 there. I again spoke to Buffy on April the 24th. She called back and stated that the back evaluation had been okayed and that she would take care of informing Cooper and Ms. Whitefield that it was okay. I don’t know if the appointment ever occurred or not. I only documented that we talked and the back treatment was okay. From that point I did not talk to anyone associated with the carrier, nor the adjustor, until February of `99, which if you look at the far right middle, I called to talk to Buffy about the knee. . . .And I was informed that she was no longer with the company.
About a 30-day period elapsed, I guess. My next documentation would be right below that where I called a Pam Mulligan. My understanding was that she was the new adjustor on Mr. Angell’s file. Left a message. I never heard back from Ms. Mulligan, nor did I pursue it any more than that, because I left a message. . . .From that point, March of `99, my next conversation would have been 8-18 of `99 and 8-19 of `95 (sic). A new carrier — I was informed Stonebill (sic) Claims was the new carrier and a Jill Johnson was an adjustor. I left two messages for her explaining that Mr. Angell wanted to come back in for his right knee, could we get authorization to see him, please call me. I never heard a word from that. And that was the last talk with who I thought was the new carrier.
***
Q. Did Dr. Bundrick then see the claimant, Mr. Angell, on December 3rd of `99?
A. We scheduled the appointment for the 6th. The appointment was scheduled on the 3rd for the 6th.
Q. And how was that paid?
A. It was filed on his Medicare, which I believe is his primary insurance.
After another hearing before the Commission, the administrative law judge filed an opinion on May 19, 2000. The administrative law judge found that the statute of limitations did not bar the claim for additional benefits, and that the respondent had controverted payment of medical benefits subsequent to February 10, 1998. The administrative law judge found that the respondent had “wilfully and intentionally failed to pay for the incurred medical treatment received by the claimant under the care of Dr. Bundrick subsequent to the medical service of February 10, 1998, and as such a thirty-six percent (36%) penalty is payable to the claimant on said incurred unpaid bills pursuant to Ark. Code Ann. § 11-9-802(d) and (e).” The administrative law judge found that the respondent had refused to comply with the October 29, 1997, final order of the administrative law judge and was in contempt of the Commission. The respondent appeals to the Full Commission.
II. ADJUDICATION
A. Statute of Limitations
Ark. Code Ann. § 11-9-702, in its pre-Act 796 form, provides:
(b) TIME FOR FILING FOR ADDITIONAL COMPENSATION. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.
In the present matter, the administrative law judge found that Ark. Code Ann. § 11-9-702(b) does not bar the present claim for additional worker’s compensation. The Full Commission affirms this finding. The respondents argue that the last medical bill they paid was for treatment provided by Dr. Bundrick on February 10, 1998. The respondents assert that the claimant’s claim for “additional” worker’s compensation filed in October, 1999 was “well over the one year limitations period” and it thus barred by Ark. Code Ann. § 11-9-702(b).
Yet, an administrative law judge found on October 29, 1997 that the respondents were responsible for continued reasonably necessary medical and related treatment. Further, the administrative law judge recognized Dr. Bundrick as the claimant’s primary medical provider. Dr. Bundrick indeed saw the claimant on February 10, 1998 and referred the claimant to Dr. Cavanaugh for low back pain. The claimant attempted to secure this treatment, but credibly testified that the respondents never provided this authorized treatment. The preponderance of evidence indicates that the respondents simply refused to authorize reasonable and necessary medical treatment, which was awarded by the Commission on October 29, 1997. Therefore, we construe the claimant’s claim in October, 1999 for “additional” benefits to actually constitute a claim for enforcement of the Commission’s previous order. Consequently, Ark. Code Ann. § 11-9-702(b) does not bar the claim.See, Helena Contracting Co. v. Williams, 45 Ark. App. 137, 872 S.W.2d 423 (1994). The administrative law judge’s decision is affirmed.
B. Penalty
Ark. Code Ann. § 11-9-802 (Supp. 1999) provides:
(d) Medical bills are payable within thirty (30) days after receipt by the respondent unless disputed as to compensability or amount.
(e) In the event the commission finds the failure to pay any benefit is willful and intentional, the penalty shall be up to thirty-six percent (36%) payable to the claimant.
In the present matter, the administrative law judge found that the respondent willfully and intentionally failed to pay for the incurred medical treatment received by the claimant under the care of Dr. Bundrick subsequent to the medical service of February 10, 1998. The administrative law judge therefore found that the 36% statutory penalty was payable to the claimant based on incurred medical bills which the respondent had not paid. The administrative law judge noted that a bill for reasonable and necessary medical treatment provided by Dr. Bundrick on December 6, 1999, has not been paid. The administrative law judge further noted that the respondent has not paid for prescription medication provided by Dr. Bundrick. The preponderance of evidence indicates that the respondent’s failure to timely pay for related medical treatment to the claimant has been willful and intentional. Therefore, we affirm the administrative law judge’s imposition of a 36% penalty on the unpaid medical bills.
C. Contempt
Ark. Code Ann. § 11-9-706 provides:
(b) If any person or party in proceedings before the commission disobeys or resists any lawful order or process, . . . or refuses to comply with any final order of an administrative law judge or the commission, . . . then said person or party, at the discretion of the administrative law judge or the commission, may be found to be in contempt of the commission and may be subject to a fine not to exceed ten thousand dollars ($10,000).
In following the plain language of Ark. Code Ann. § 11-9-706(b), the Full Commission affirms the administrative law judge’s finding that the respondent is in contempt of the Workers’ Compensation Commission. The record indicates that (1) despite the administrative law judge’s October, 1997 order awarding reasonable and necessary medical treatment from Dr. Bundrick, the respondent did not allow the claimant to see Dr. Bundrick until February 10, 1998; (2) the respondent never authorized the claimant to see Dr. Bundrick again after February 10, 1998; (3) the respondent paid no outstanding medical bills pursuant to the Commission’s October, 1997 order; and, (4) the respondent refused to authorize the claimant to see Dr. Cavanaugh upon the referral of Dr. Bundrick.
The Full Commission therefore affirms the administrative law judge’s finding that the respondent is in contempt of the Commission. However, we hold in abeyance imposition of a fine, contingent on the respondent promptly complying with all past and prospective orders of the Commission in this matter.
III. CONCLUSION
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge’s finding that Ark. Code Ann. § 11-9-702(b) does not bar the present claim for additional worker’s compensation. We affirm the finding that the respondent has willfully and intentionally failed to pay for medical treatment received by the claimant from Dr. Bundrick, and that the respondent must pay a 36% penalty on incurred unpaid medical bills pursuant to Ark. Code Ann. § 11-9-802(d) and (e). The Full Commission affirms the finding that the respondent has refused to comply with the administrative law judge’s October 29, 1997 order, and that the respondent is therefore in contempt of the Commission. However, we suspend and hold in abeyance payment of the fine imposed by the administrative law judge, contingent on the respondent’s compliance with past and prospective Commission orders in this matter. The Full Commission thus affirms, as modified, the decision of the administrative law judge.
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 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 (Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority’s opinion finding that the claimant’s claim for additional workers’ compensation benefits is not barred pursuant to Ark. Code Ann. § 11-9-702(b). I also dissent from the majority opinion finding that the respondents are subject to a 36% penalty on unpaid medical bills pursuant to Ark. Code Ann. § 11-9-802(d) and (e).
In my opinion, the statute of limitations has run on the claimant’s claim for benefits. The evidence shows that the claimant last visited Dr. Bundrick’s office on February 10, 1998. He did not file his claim with the Commission until October of 1999. Ark. Code Ann. § 11-9-702(b) states:
(b) Time for Filing Additional Compensation. (1) In cases where any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.
(2) The time limitations of this subsection shall not apply to claims for the replacement of medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, or other apparatus permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies, but replacement of such items shall not constitute payment of compensation so as to toll the running of the statute of limitations.
The evidence shows that the only medical treatment that the claimant even halfway received during this time period was getting prescription refills. This is specifically prohibited under the statute from tolling the statute of limitations.
I also dissent from the majority opinion finding that the respondent is responsible for a 36% penalty on the unpaid medical bills. There was no evidence presented that the respondent had failed to timely pay for related medical treatment to the claimant or that any failure to pay was willful and intentional.
__________________________ MIKE WILSON, Commissioner