CLAIM NO. E412878
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 26, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOEY McCUTCHEN, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE JOSEPH PURVIS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on September 11, 1995. In that opinion and order, the administrative law judge found that the two sets of lumbar epidural steroid injections provided to the claimant by referral from Dr. Harford were reasonable and necessary for treatment of the claimant’s compensable injury. In addition, the administrative law judge found that the respondents are responsible for expenses related to the medical treatment provided by Dr. Parker and Dr. MacDade.
(a) (1987). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury.Norma Beatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. DeborahJones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (Claim No. D511255). [15] In the present claim, we find that the claimant proved by a preponderance of the evidence that the two sets of lumbar epidural steroid injections ordered by Dr. Harford were reasonably necessary for treatment of her compensable injury. In that regard, the record indicates that, at the time that Dr. Harford first initiated steroid injection treatment, his working diagnosis was myofascial syndrome. Even the medical literature submitted into evidence by the respondents and the accompanying report of Karen Parker, a registered nurse, acknowledge that the steroid injection procedure is considered standard treatment
for myofascial pain. In addition, Dr. Kale, who performed the second injection series, explained in a letter dated February 7, 1995, that the claimant was so apprehensive about her pain that the second block series was required to ascertain whether a somatic origin existed for the claimant’s complaints. Only after verifying a successful injection series with no relief whatsoever was Dr. Kale able to ascertain a lack of somatic origin in the claimant’s complaints. Moreover, Dr. Kale properly recommended that the third injection series be canceled in light of the claimant’s report of no relief to the obviously successful second injection series. Therefore, in light of Dr. Harford’s working diagnosis of myofascial syndrome in late May and early June of 1994, the undisputed evidence that steroid injections represent standard treatment for myofascial syndrome, and the beneficial diagnostic information obtained from the two epidural injection series, we find that the preponderance of the evidence establishes that the two lumbar epidural steroid injection series ordered by Dr. Harford were reasonably necessary for treatment of the claimant’s compensable injury. [16] In reaching our conclusion, we note that Dr. Rangaswamy opined in an August 9, 1994, report that neither epidural steroid injection series was medically justified and that the scheduled referral to Dr. Heim was also not appropriate for the claimant. While we find that the opinion of Dr. Rangaswamy, a highly qualified orthopedic surgeon, clearly justified canceling the scheduled appointment with Dr. Heim, we find that Dr. Rangaswamy’s August 9, 1994, report is insufficient evidence to conclude that the two epidural steroid injection series were not reasonably necessary when ordered. Treatment intended to reduce or enable a claimant to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment within the meaning of Ark. Code Ann. § 11-9-508. BillyChronister v. Lavaca Vault, Full Workers’ Compensation Commission opinion, June 20, 1991 (Claim No. D704562). While the results obtained may be a consideration in some cases, the primary considerations are the nature of the service in relation to the injury of the claimant. Tonnie Crisp v. WeyerhaeuserCorporation, Full Workers’ Compensation opinion, July 27, 1993 (Claim No. D812922). Moreover, the compensability or non-compensability of medical services is not dependent on a retrospective evaluation of the results obtained from the service. Joyce Hager v. St. Edward Mercy Medical Center, Full Workers’ Compensation Commission opinion, July 25, 1990 (Claim No. D408662). [17] As discussed, the evidence does not support a conclusion that the epidural steroid injections were of absolutely no benefit. To the contrary, the injections were of significant diagnostic benefit. In addition, the injections were made during the course of standard treatment for myofascial syndrome, as even the respondents’ records indicate. Under these circumstances, we find that the two epidural steroid injections series ordered by Harford were reasonably necessary for treatment of the claimant’s compensable injury, and that the expense of the treatment is the responsibility of the respondents. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. [18] With regard to the respondents’ liability for expenses of treatment later provided by and at the direction of Dr. Parker, Ark. Code Ann. § 11-9-514 (Repl. 1996) sets forth a strict procedure which must be followed if an injured employee desires to change physicians after treatment is provided, and the employer is not liable for a new physician’s services unless the claimant follows this procedure. American Transportation Co. 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). However, after notification of a work-related injury, the employer or insurance carrier must deliver to the employee a notice (a Form N) which explains the claimant’s rights and responsibilities regarding a change of physicians. Ark. Code Ann. § 11-9-514 (c)(1) (Repl. 1996). 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). [19] This Commission has previously found that respondents bear the burden of proving that the required notice was furnished if they contend that they are not liable for medical expenses because the treatment was not properly authorized under the change of physician rules. Susan Robinson v. Armour HeightsNursing Home, July 31, 1992 (Claim No. D912591); Joyce Clark v.Mar-Bax Shirt Co., Full Workers’ Compensation Commission, July 9, 1991 (Claim No. D702527); Loyce Valentine v. Wal-Mart, Full Workers’ Compensation Commission, Feb. 7, 1986 (Claim No. D311200); John Hampton v. Check-Inn Motel, Full Workers’ Compensation Commission, Aug. 27, 1985 (Claim No. D405546). [20] In addition, the change of physician rules do not apply where the employer refuses to provide reasonably necessary medical treatment as required by Ark. Code Ann. § 11-9-508
(1987). In this regard, the controversion of a claim in its entirety may be tantamount to a refusal to provide medical care.Dorothy Hamilton v. Gravette Medical Center, Full Workers’ Compensation Commission, May 10, 1993 (claim No. E002338); PaulaMitchell v. St. Michael Hospital, Full Workers’ Compensation Commission, July 31, 1990 (Claim No. D801630). In addition, a claimant does not incur liability for reasonable and necessary “emergency” medical treatment even if provided by an unauthorized treating physician. Emergency treatment is not limited to life-threatening situations. White v. Lair Oil Co., 20 Ark. App. 136, 725 S.W.2d 10 (1987); Universal Underwriters InsuranceCo. v. Bussey, 17 Ark. App. 47, 703 S.W.2d 459 (1986). Nevertheless, the use of the term “emergency” obviously contemplates some sort of sudden or unexpected exigency which demands prompt attention. For example, in White, supra andBussey, supra, the evidence established that the claimants were denied medical treatment by the authorized treating physician although the medical evidence established that the claimants sustained very substantial injuries and were in excruciating pain, and they sought treatment from another physician immediately after authorized medical treatment was denied. Finally, a legitimate referral by an authorized treating physician is not a change of physicians and is not subject to the procedures set forth in Ark. Code Ann. § 11-9-514. TEC v.Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991); Electro-Airv. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985). [21] In the present claim, the evidence establishes that the claimant signed a Form N explaining the claimant’s rights and responsibilities regarding a change of physician on May 16, 1994. In addition, the claimant testified that the respondents made the initial choice of physician and that the respondents selected Dr. Harford. Moreover, the claimant’s testimony establishes that the claimant was not referred to Dr. Parker by Dr. Harford, but that the claimant sought care from Dr. Parker on her own initiative. Moreover, Dr. Parker’s office notes from August 31, 1994, and the claimant’s testimony indicate that the claimant was not in any acute distress when she first sought treatment from Dr. Parker, and Dr. Parker clearly did not provide the claimant any emergency medical care on or after his first examination on August 31, 1994. [22] As discussed, the respondents did notify the claimant that the respondents determined that Dr. Harford’s referral to Dr. Heim, an orthopedic specialist, was not reasonably necessary for treatment of the claimant’s injury, and the respondents notified the claimant in the same letter that the claimant would be required to pay the expenses of Dr. Heim’s treatment if she kept the scheduled appointment. The claimant testified that from the letter she understood that “I got cut off my workmen’s comp.” [23] However, the claimant acknowledged that, after learning that Dr. Heim’s appointment was canceled, she did not attempt to return to Dr. Harford for additional follow up and she did not attempt to contact the respondents to arrange alternative care if she was not satisfied with the care provided by Dr. Harford. In addition, contrary to the claimant’s suggestion, nothing in the record indicates that the claimant could not return to Dr. Harford for additional care at respondents’ expense after Dr. Heim’s appointment had been canceled. Moreover, the claimant did not return to Dr. Harford, her authorized treating physician, she did not contact the respondents, and she did not seek a change of physician pursuant to the procedure established in Ark. Code Ann. § 11-9-514. Instead, the claimant, on her own initiative, contacted Dr. Parker for a “second opinion” on August 31, 1994, and thereafter continued to seek additional treatment from Dr. Parker with disregard for the change of physician procedures under the Arkansas Workers’ Compensation Law. Therefore, we find that the preponderance of the evidence establishes that the claimant failed to comply with the change of physician rules prior to seeking treatment from Dr. Parker, and, pursuant to the provisions of Ark. Code Ann. § 11-9-514 (b), the respondents are not responsible for the expense of medical treatment provided by or at the direction of Dr. Parker or Dr. MacDade. [24] In short, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that the two sets of lumbar epidural steroid injections provided to the claimant by referral from Dr. Harford were reasonably necessary for treatment of the claimant’s compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. In addition, we find that the claimant failed to prove by a preponderance of the evidence that the respondents are liable for medical services provided by and at the direction of Dr. Parker or Dr. MacDade. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [25] 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 (1987). 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 (b) (1987). [26] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman
[27] Commissioner Humphrey concurs. [28] Commissioner Holcomb concurs in part and dissents in part.[29] CONCURRING AND DISSENTING OPINION
[30] I concur with the majority’s finding that the claimant failed to prove by a preponderance of the evidence that the respondent is liable for expenses related to services provided by and at the direction of Dr. Parker and Dr. MacDade. However, I respectfully dissent from the majority’s decision finding that the two lumbar epidural steroid injection (LESI) treatments are reasonable and necessary medical treatment.
[32] It is well-established that whether the medical treatment actually provided is reasonable and necessary is a question of fact for the Commission. DeBoard v. Colson Coal, 20 Ark. App. 166, 725 S.W.2d 857 (1987). [33] The record shows that the LESI injections are not reasonable and necessary medical treatment for the claimant’s work-related injury. The claimant underwent x-rays and an MRI at the direction of his treating physician, Dr. Harford. The results were normal. Based solely upon the claimant’s subjective complaints of pain, two lumbar epidural steroid injections were ordered. These two treatments alone cost in excess of six thousand dollars ($6,000) and the claimant admitted that she did not receive any relief from the first injection. Despite this, a second lumbar epidural steroid injection was performed. [34] Because of the high medical bill, the respondent submitted the claimant’s matter for a medical review. Dr. Rangaswamy of the Systematic Corp./Physician Consultation Institute of America, Inc. reviewed the medical records. In Dr. Rangaswamy’s report he states that “[t]he initial epidural steroid injection was not justified in this patient at any time.” Because the claimant experienced no improvement whatsoever after the first injection, Dr. Rangaswamy concluded that the second treatment was not justified. [35] In my opinion, the respondent has proven that the lumbar epidural steroid injection treatments were not reasonably necessary medical treatment and I would reverse the Administrative Law Judge’s decision in this regard. Accordingly, I respectfully dissent from this portion of the majority’s decision. [36] ALICE L. HOLCOMB, Commissioner(a) The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.