CLAIM NO. E120880
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 13, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JOHN WILLIAMS, Attorney at Law, Booneville, Arkansas.
Respondent represented by ELDON F. COFFMAN, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed in part and affirmed in part.
[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed June 14, 1996 finding that the treatment of Dr. Terry Green constituted emergency medical treatment and is therefore the responsibility of respondent. Based upon our de novo review of the entire record, we find that the claimant has failed to prove that Dr. Green is an authorized physician or that Dr. Green’s treatment was emergency treatment. Therefore, we find that the finding of the Administrative Law Judge regarding this issue must be, and hereby is, reversed.
[8] After the third surgical procedure was recommended, respondent arranged for second and third opinions by Drs. Luis Cesar and Jim J. Moore. After examining the claimant and claimant’s medical records, Dr. Cesar wrote: “I am not sure a fusion would be the answer for his problem . . . I am just not convinced that fusion for people who don’t have any spondylolisthesis is of any benefit.” Likewise, Dr. Moore examined the claimant and claimant’s medical records. In his Independent Medical Examination report, Dr. Moore stated:He was informed if we were able to get his pain level down 50% of what it is at present, I would consider this a successful endeavor. If we were able to improve his pain more than this, that would be `icing on the cake’ so to speak. Hopefully this will be arranged when it is approved by his workers compensation carrier . . .
[9] A hearing was held on March 6, 1995 to determine whether the third surgical procedure was reasonable and necessary. On April 11, 1995, the Administrative Law Judge entered his opinion finding that the claimant failed to prove by a preponderance of the evidence that the surgical procedure recommended by Dr. D. Luke Knox is “reasonably necessary in the treatment of his compensable back injury.” After considering all of the evidence, the Administrative Law Judge noted in support of his finding:Apparently Dr. Knox is recommending perhaps fusing the L5-S1 segment with instrumentation. The patient apparently is of the understanding that Dr. Knox wishes to fuse two levels, L4-5 and L5-S1, which I certainly think would not be particularly appropriate to consider. Furthermore, in view of the fact that the patient is having less structural pain, I am not sure that a fusion would necessarily give him too much benefit from his current complaints of pain . . . At this point, I am not convinced that additional surgery would necessarily improve this patient over his current status with the thought in mind that perhaps the golden opportunities have passed by as it is.
[10] Shortly before receiving the Administrative Law Judge’s April 11, 1995 order denying the surgical procedure recommended by Dr. Knox, claimant began going to the Booneville Community Hospital for pain medication. The records introduced at the May 13, 1996 hearing reveal that claimant’s first visit to the Booneville Hospital occurred on April 3, 1995. After visiting the Booneville Hospital on four other occasions and after receiving the opinion of the Administrative Law Judge denying the requested surgery, claimant sought the treatment of Dr. Terry Green, an orthopedist in Russellville. Claimant did not follow the change of physician requirements prior to initiating treatment with Dr. Green. After first visiting Dr. Green on April 11, 1995, claimant returned to the Booneville Hospital on one further occasion for additional pain medication. On June 5, 1995, approximately three weeks after beginning his treatment with Dr. Green, Dr. Green performed the third surgical procedure, a diskectomy and fusion, of claimant’s lumbar spine. [11] Respondent controverted Dr. Green’s treatment on the grounds that the treatment was unauthorized and the surgical procedure performed by Dr. Green was not reasonable and necessary for the treatment of claimant’s compensable injury. [12] At the hearing held on May 13, 1996, claimant testified that he sought pain medication at the Booneville Hospital based upon the advice of Dr. Knox. Specifically, claimant stated, “Sometime in January he told me if I got to hurting real bad, instead of trying to get back to Fayetteville to me to just to go get me a local doctor and get a shot until the hearing come up on the operation.” [13] In awarding medical benefits to the claimant, the Administrative Law Judge found that the treatment rendered by Dr. Green was emergency medical treatment and therefore not subject to the change of physician requirements. However, we cannot find based upon the evidence presented by the claimant that Dr. Green’s treatment was emergency treatment. Ark. Code Ann. § 11-9-514 which governs the change of physician requirements states in subsection (b): “Treatment or services furnished or prescribed by any physician other than the ones selected according to the foregoing, except emergency treatment, shall be at the claimant’s expense.” There is no dispute that claimant sought the treatment of Dr. Green outside the change of physician rules. Claimant was well aware of the change of physician requirements as evidenced by his previous request for a change of physician which initially began claimant’s treatment with Dr. Knox. In our opinion, claimant did not follow the steps necessary to initiate a change of physician, nor has he proven that the treatment rendered by Dr. Green was emergency medical treatment. Dr. Knox first recommended the third surgical procedure to fuse claimant’s lumbar spine at the L5-S1 level. This procedure was not classified by Dr. Knox as emergency treatment. Moreover, neither Dr. Luis Cesar nor Dr. Jim J. Moore opined that a third surgical procedure was necessary or that it was emergency treatment. [14] The Administrative Law Judge hangs his finding that Dr. Green’s treatment is emergency medical treatment on the fact that claimant sought pain medication from the Booneville Community Hospital beginning on April 3, 1995. However, this medication was rendered at least two months prior to claimant actually undergoing the third surgical procedure at the hands of Dr. Green. Moreover, even after claimant initiated his treatment with Dr. Green, claimant returned to the Booneville Hospital on at least one occasion seeking pain medication. If Dr. Green was rendering emergency medical treatment, why would claimant still need to go to the Booneville Hospital for medication? Even assuming arguendo that the treatment and pain medication received at the Booneville Hospital constitutes emergency medical treatment, we cannot find that Dr. Green’s treatment is elevated to emergency treatment. [15] This case is easily distinguishable from the leading case on emergency medical treatment, UniversalUnderwriters Ins. v. David Bussey, 17 Ark. App. 47, 703 S.W.2d 459 (1986). The claimant in Bussey underwent a cervical fusion by his authorized treating physician. Claimant remained symptomatic and his treating physician stated that nothing else could be done and refused to refer claimant to a neurosurgeon. Claimant in Bussey sought the services of a neurosurgeon on his own. The facts in BusseyWith Dr. Moore not recommending the additional surgery, and Dr. Cesar stating that he would not do the surgery, I find that the claimant failed to prove by a preponderance of the credible evidence that this surgical procedure is reasonably necessary under the circumstances. Dr. Moore is recommending noninvasive procedures prior to additional surgical intervention. Dr. Cesar is recommending a less invasive procedure which could work. Dr. Knox is recommending a procedure that if it does not relieve the pain is irreversible.”
reveal:
[16] Obviously, the failed fusion resulted in a need for immediate treatment. The services rendered by the neurosurgeon in Bussey are clearly emergency services as indicated by the neurosurgeon’s prompt response in hospitalizing the claimant on claimant’s first visit and performing surgery only three days later. [17] On the contrary, in the case at hand, the record reveals that Dr. Green was in no hurry to perform claimant’s surgery. Although Dr. Green recommended surgery after examining the claimant, Dr. Green’s records clearly reveal that the surgery was not emergency treatment. According to Dr. Green’s records the surgery would be set up at a later date once the pay arrangement could be arranged. Furthermore, Dr. Green did not perform the surgery until approximately three weeks after first examining the claimant. [18] In our opinion, such lack of necessity and speed seen in Dr. Green’s medical records demonstrates that his treatment and surgery performed on the claimant were not emergency treatment. The time span between Dr. Green’s first examination and the date of surgery reveal that there was not a need for immediate action nor was claimant’s condition critical, a crisis, nor was surgery urgent. [19] Although the Court of Appeals has failed to define or clarify the definition of emergency treatment, in our opinion, such treatment should require at least “a sudden or urgent occasion” for treatment based upon an unforeseen combination of circumstances or the resulting state that calls for immediate action.” (See The American College Dictionary and Webster’s Third New International Dictionary (Unabridged). Neither Dr. Green’s treatment nor the surgery called for immediate action. In short, Dr. Green took his time to arrange financial payment and a convenient surgery date prior to even scheduling the surgery. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that Dr. Green’s treatment and surgery were emergency treatment. Claimant has failed to prove by a preponderance of the evidence that Dr. Green was an authorized physician, or that he rendered emergency treatment. Consequently, we find that claimant has failed to prove that respondent is responsible for Dr. Green’s treatment, and we, therefore, reverse this finding of the Administrative Law Judge. [20] However, we find that the claimant has proven by a preponderance of the evidence that the surgery performed by Dr. Green was a compensable consequence of claimant’s compensable injury. The surgery was clearly needed to correct problems in claimant’s lumbar spine which arose out of the compensable injury. Therefore, we find that the decision of the Administrative Law Judge awarding temporary total disability benefits for claimant’s healing period associated with the surgery should be affirmed. Claimant re-entered his healing period on June 5, 1995, the date on which the surgery was performed and remained in his healing period until he reached maximum medical improvement on April 4, 1996, as found by Dr. Green. Accordingly, we affirm the award of temporary total disability. [21] IT IS SO ORDERED.[The neurosurgeon] immediately diagnosed appellee’s problem to be a moving graft, i.e., the fusion by [claimant’s authorized physician] had failed, causing a false joint. [The neurosurgeon] stated at the initial visit that appellee was extremely anxious, tearful, complaining of severe pain, with marked limitation. [The neurosurgeon] concluded that appellee was a `basket case’. [The neurosurgeon] admitted appellee to a hospital on the day he first saw him and performed surgery three days later.
DAVE GREENBAUM, Special Chairman MIKE WILSON, Commissioner
[22] Commissioner Humphrey concurs in part and dissents in part.[23] CONCURRING AND DISSENTING OPINION
[24] While I agree with the majority’s finding that surgery performed by Dr. Green on June 5, 1995, was a compensable consequence of claimant’s original compensable injury, and that he is thus entitled to an award of temporary total disability benefits from June 5, 1995 through April 4, 1996, I must respectfully dissent from the finding that Dr. Green’s surgical intervention was not emergency treatment.