CLAIM NO. E702353
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 3, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE J. CHRIS BRADLEY, Attorney at Law, North Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondent appeals from the Administrative Law Judge’s finding that the claimant was entitled to a change of physician and to temporary total disability benefits from May 17, 2000, through a date yet to be determined. After conducting a de novo review of the entire record, we affirm the Administrative Law Judge’s finding that the claimant is entitled to a change of physician. We reverse the Administrative Law Judge’s award of additional temporary disability compensation.
Change of Physician
The claimant sustained a compensable knee injury on February 17, 1997, and was initially treated by Dr. Raby, an orthopedic surgeon. Dr. Raby referred the claimant to Dr. Fisher for pain management beginning July 8, 1997.
In a pre-hearing filing dated December 1, 1998, the claimant requested that additional medical care by either Dr. Buie or Dr. Mumme (both orthopedic surgeons) be authorized. A Commission order dated January 11, 1999, stated that the issues at an upcoming hearing would include the, “Change of physician to Dr. Buie or Dr. Mumme.” This order did not characterize the issue as being whether a referral to Dr. Buie or Dr. Mumme was reasonable and necessary, because at the time there had been no referral. The record contains no report of a referral until after the claimant petitioned the Commission for a change of physician, when Dr. Fisher wrote on February 23, 1999:
To that end, we had hoped to have him evaluated here locally by Dr. James Buie of River Valley Orthopaedics, at least as an effort to establish him with a local orthopod in anticipation of some future changes. . . . It is my opinion that he would benefit from seeing Dr. Buie for an evaluation in anticipation of some corrective procedure in the future.
On March 9, 1999, the respondent notified the claimant by letter that they would agree to claimant being seen by Dr. Buie, stating:
Based upon Dr. Fisher’s recommendations, the respondents will agree to have your client seen by Dr. Buie for an evaluation in anticipation of some corrective procedure in the future. Please have the case removed from March 22, 1999, setting.
Thereafter, neither party requested that the Commission enter an order regarding the claimant’s prehearing request for a change of physician.
There is no record of the claimant being seen by Dr. Raby again after June 16, 1998. At a hearing on April 17, 2000, the claimant testified that his treating physicians at that time were Dr. Buie and Dr. Fisher. He clearly did not consider Dr. Raby as his treating physician any longer. Following that hearing, an order was entered which stated:
Dr. Fisher referred claimant to Dr. Buie, an orthopedist, for further medical treatment.
The Administrative Law Judge’s current opinion states that:
The documentary evidence submitted in this case does reflect that at one time claimant filed a pre-hearing questionnaire requesting that he be allowed to receive medical treatment from either Dr. Mumme or Dr. Buie. However, it is unclear from a review of the remaining evidence whether the claimant’s request was a true request for a change of physicians or whether it was a request for approval of a referral from claimant’s authorized treating physician.
(Emphasis added.)
The Administrative Law Judge concluded that the claimant had been referred to Dr. Buie by Dr. Fisher based on the claimant’s testimony to this effect and the letter in which the respondent agreed to allow the claimant to be evaluated by Dr. Buie. The Administrative Law Judge found that the recommendation from Dr. Fisher was:
[I]n the nature of a referral for which claimant sought approval. Given this evidence, I find that insufficient evidence has been offered indicating that the claimant exercised his one-time change of physician when he saw Dr. Buie.
The Administrative Law Judge awarded the claimant a one time change of physician to Dr. Stephen Heim. The respondents dispute the Administrative Law Judge’s award of a change of physician to Dr. Heim on the grounds that the claimant already had his one time change of physician in 1999. We disagree. As we understand the applicable law, even if what occurred in 1999 should be characterized as a “change of physician,” and not a referral, we do not believe that the 1999 “change of physician” would represent the claimant’s one time change of physician under Ark. Code Ann. § 11-9-514 for the following reasons.
There is no doubt that the claimant filed some type of change of physician request with the Commission in early 1999. However, the respondents ultimately authorized the claimant to be evaluated by the doctor in question (Dr. Buie) by agreement of the parties. The change of physician/referral issue was never presented to an Administrative Law Judge for a hearing or a decision. Therefore, the Commission never approved a change of physician, and under these circumstances, it would appear that the 1999 change of physician or referral was by mutual agreement of the parties. The Courts have previously held that a change of physician by mutual agreement of the parties without Commission intervention is not a one time change of physician within the meaning of the Arkansas Workers’ Compensation Law. See Magic Mart, Inc., v.Little, 12 Ark. App. 325, 676 S.W.2d 756 (1984). As we understand the law and standard practice in the legal community, if this respondent intended for the claimant’s treatment by Dr. Buie beginning in 1999 to be the claimant’s one time change of physician under Workers’ Compensation law, then the respondent should have sought and received correspondence from the Commission making a one time change of physician to Dr. Buie. Having failed to do, the respondents lack the appropriate evidence to establish that the claimant received his one time change of physician to Dr. Buie in 1999 under the Workers’ Compensation Law.
Consequently, regardless of whether claimant’s treatment by Dr. Buie is considered a referral as the claimant now asserts, or a change of physician as the respondent now assert, we would be constrained to affirm the Administrative Law Judge’s finding awarding a change of physician.
ADDITIONAL TTD
Because the claimant’s admittedly compensable knee injury is to a scheduled portion of the body, the claimant’s claim for temporary benefits is subject to Ark. Code Ann. § 11-9-521(a), which provides that an employee is entitled to temporary benefits during the healing period or until the employee returns to work. See generally WheelerConstruction Co. v. Armstrong, 73 Ark. App. 146, ___ S.W.3d ___ (2001). The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended. Id.
We find that the preponderance of the evidence establishes that the healing period for the claimant’s knee injury ended on May 17, 2000. In this regard, the claimant sustained a compensable knee injury in 1997 and underwent corrective surgery which has apparently not been particularly successful. However, we fail to see where any physician has provided the claimant any medical treatment since May 17, 2000 intended to improve the underlying permanent nature of the claimant’s knee injury. To the extent that the Administrative Law Judge seems to conclude that the claimant has been receiving treatment from Dr. Fisher which might improve the underlying nature of his permanent condition, we note that Dr. Fisher’s reports indicate that he has been treating the claimant’s back and not the claimant’s knee. There was also some suggestion from Dr. Buie that the claimant may require another arthroscopic procedure at some point in the future. However, we also note that the claimant is not even satisfied with Dr. Buie’s prior treatment and has sought and been awarded a change of physician to a new physician who has obviously had no chance to advise what additional treatment, if any, that the claimant may need at some point in the future. More importantly, the claimant was assigned apermanent impairment rating for his knee on May 17, 2000 by Dr. Buie. We find that the claimant has therefore failed to establish by a preponderance of the credible evidence that he remained in a healing period for his knee injury after May 17, 2000.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we affirm the Administrative Law Judge’s award of a change of physician but reverse the Administrative Law Judge’s award of additional temporary disability compensation.
For prevailing in part on this appeal before the Full Commission, the 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
______________________________ MIKE WILSON, Commissioner
Commission Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I concur with the opinion of the majority finding that claimant is entitled to a change of physician. However, I agree with the Administrative Law Judge’s analysis concerning claimant’s entitlement to additional benefits for temporary total disability and would affirm the award of such benefits. Therefore, I must respectfully dissent in this regard.
_______________________________ SHELBY W. TURNER, Commissioner