BOYCE v. OSCEOLA NURSING CENTER, 1996 AWCC 95

CLAIM NO. E416358

LESLIE BOYCE, EMPLOYEE, CLAIMANT v. OSCEOLA NURSING CENTER, EMPLOYER, RESPONDENT ALEXSIS (THIRD PARTY ADMINISTRATOR), INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 17, 1996

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

Claimant represented by the HONORABLE MIKE SPADES, JR., Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on January 16, 1996. In that opinion and order, the administrative law judge found that the claimant failed to demonstrate that she is entitled to a change of physician. In addition, the administrative law judge found that the claimant is entitled to return to Dr. Pollock for any reasonably necessary follow-up care. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed.

[3] The claimant was employed by the respondent employer as a cafeteria cook on October 17, 1994, when she slipped and fell, sustaining an admittedly compensable injury. According to the claimant, her fall caused a temporary loss of consciousness. Upon regaining consciousness the claimant reported pain in her back, head, and big toe. She was immediately taken to the hospital where she was treated by Dr. Sumner Cullom, her family physician. X-rays of the big toe, the cervical spine and the lumbosacral spine, and skull did not indicate any fracture. According to the claimant, Dr. Cullom released her and scheduled a follow-up appointment for the following day; however, she was notified by the respondent on October 18, 1994, that she should report to Dr. George Pollock for follow-up care.

[4] The claimant presented to the Doctor’s Clinic on October 18, 1994, where she was followed by Dr. George Pollock and by Dr. Robert Patrick. The claimant received an initial diagnosis of “acute back strain” for which she received medication, Sonolator treatment, a back brace, whirlpool baths, and physical therapy. A follow-up examination on October 25, 1994, indicated normal bilateral straight leg raise testing. However, the claimant reported persistent low back pain with numbness down the right leg, and an MRI of the lumbosacral region of the spine was performed on October 29, 1994. The MRI indicated mild degenerative marginal spurring about the epiphyseal joints, but all bony structures were intact. In addition, the MRI results indicated no protrusion, extrusion, or other abnormality in the intervertebral discs of the lumbosacral region of the back.

[5] On November 2, 1994, the claimant was released to light-duty work with lifting restrictions. However, the claimant indicated that she felt incapable of returning to work at that time and requested referral to a specialist. A referral to Dr. Joseph Yao, an orthopedist, was scheduled for November 7, 1994. At that time, the claimant reported that she was experiencing pain from the back of her head extending down through her sacrum which was aggravated by walking, standing, sitting, bending, sneezing, coughing, lifting, deep breaths, and going from standing to sitting. The claimant also reported that physical therapy initiated October 20, 1994, including traction and electrical stimulation had provided no relief, although medication and her lumbar support had provided some relief. Dr. Yao’s clinical examination indicated diffuse tenderness from the back of the neck down to the sacrum area, with a restricted range of back motion. Based on his clinical examination and a review of the claimant’s MRI and x-ray test results, Dr. Yao diagnosed a cervical-thoracic-lumbar strain and indicated that he would expect a gradual improvement. Dr. Yao released the claimant to return to light-duty work with a 5 pound maximum lifting restriction and referred her back to Dr. Pollock for additional follow-up care, including exercise and localized heat treatment. The claimant returned to light duty for the respondent employer on November 8, 1994, and worked until December 6, 1994, when, according to the claimant, she was told by her employer to remain off work until she could return to regular duty.

[6] The claimant continued to complain of extensive low back pain following her evaluation by Dr. Yao, and Dr. Pollock’s office scheduled a referral to Dr. Terence Braden, an osteopath, on November 21, 1994, for additional evaluation and treatment. However, Dr. Braden immediately observed behavior which he found indicative of exaggerated symptoms. In that regard, Dr. Braden noted in his initial evaluation report:

This is a pleasant female who grunts and groans with every movement that she makes (it should be noted that as I stood outside the room reading through her chart there was no grunting and groaning coming from the inside of the room as she waited for me to enter).

* * *

Palpation: The patient was asked to show me where the most painful areas were using her thumbs up against her back and point to the most painful spots. The amount of pressure applied by the patient against her back with her thumbs as well as the areas were watched. When she withdrew her thumbs from her back this examiner then gently touched the back areas and she jumped away in pain buckling at the knees.
Range of motion: She did not flex forward, bend backwards or side bend right and left because of severe complaints of pain.
Sensation: Sensation is intact to pinprick and light touch as well as position sense in the bilateral lower extremities.
Strength: Any attempt at testing strength in the bilateral lower extremities even with long toe flexors or extensor hallucis longus, the patient complains of severe pain in her low back and was unable to do this.

[7] Based on his review of the diagnostic test results and his observations of the claimant’s behavior during clinical examination, Dr. Braden concluded that the claimant described symptoms “out of proportion to examination with marked symptom magnification behavior.” During additional follow-up examinations on December 8, 1994, December 19, 1994, and January 10, 1995, Dr. Braden observed similar outbursts of magnified pain response upon gentle palpation of the claimant’s sacrum area. However, Dr. Braden found prior lower back x-rays suggestive of a possible fracture in the distal sacro-coccygeal region and for the sake of thoroughness ordered a bone scan. However, no abnormality was indicated. Dr. Braden also prescribed medication, additional physical therapy, and a TENS unit for pain control.

[8] During the follow-up visit on January 10, 1995, the claimant indicated to Dr. Braden that she had not benefitted from recent medication adjustments or from a more extensive physical therapy prescribed on December 19, 1994. Following his January 10, 1995, evaluation, Dr. Braden indicated that he had been unable to find any possible physiological basis for the symptoms described by the claimant, and he indicated that he had nothing left to offer the claimant in the way of rehabilitation medicine. Moreover, he again indicated that the claimant’s subjective complaints were indicative of symptom magnification and that a functional capacity evaluation was necessary to determine validity criteria for the claimant’s self-described limitations.

[9] The claimant received a functional capacity assessment on January 25, 1995, at the American Physical Therapy Center. According to the report of Jim Keller, the physical therapist who performed the functional capacity evaluation, the claimant’s test results indicated self-limited effort on nearly every physical test procedure attempted. With regard to the validity of the functional capacity test results, Mr. Keller reported:

There were 21 validity criteria which indicates whether the claimant was performing with maximum effort and whether the test results were valid. Ms. Boyce failed 20 of the 21 validity criteria indicating sub-maximal effort. The data for this evaluation is invalid and cannot be used for her return to work functional capacities.

[10] Moreover, in summarizing the test results, Mr. Keller concluded:

The results of this evaluation indicate pain/disability exaggeration. Failed validity criteria indicating sub-maximal effort and invalid test data in actual functional capacities which must be left to your conjecture.

[11] In a letter dated February 16, 1995, Dr. Braden expressed the following opinion regarding the claimant’s medical status:

In my opinion, Ms. Boyce may be released to her full work duties. Her capacities are anyone’s conjecture based on her failed Functional Capacity Evaluation and a failure of almost all validity criteria.
She is limited by her pain. Impairment at this time, in my opinion, would be 0%.

[12] The claimant testified that she did not attempt to return to Dr. Braden or Dr. Pollock after undergoing the functional capacity evaluation on January 25, 1995. However, on her own initiative, the claimant instead returned to Dr. Cullom, her family physician, who apparently ordered a CT scan of the claimant’s lower back. In an office note dated March 20, 1995, Dr. Cullom stated that the CT scan report indicated a bulging disc. According to Dr. Cullom’s note, an examination at that time indicated “moderate paraspinal tenderness, with some spasm.” A follow-up examination conducted June 20, 1995, indicated “moderate paravertebral tenderness, with marked spasm.” In a letter dated June 20, 1995, Dr. Cullom opined that the claimant’s current symptomology requires evaluation by a neurosurgeon as soon as possible.

[13] The claimant testified that she continues to experience problems on a daily basis, that she can only sit for 10-15 minutes at a time, and then only with a pillow for back support. According to the claimant, she is no longer able to drive a car or perform house work, and she finds that her pain decreases when she lies down. The claimant also testified that she disagrees with Dr. Braden’s conclusions, and that, in her opinion, Dr. Pollack and Dr. Braden failed to perform an adequate examination during her office visits. The claimant has requested a change of physician to Dr. Barrett-Tuck, who was apparently recommended by Dr. Cullom.

[14] The Arkansas Workers’ Compensation Law requires an employer to provide such medical treatment as may be reasonably necessary for the treatment of a work-related injury received by an employee. Ark. Code Ann. §11-9-508(a) (Supp. 1995). Where the employer makes the initial selection of a physician, a claimant may petition the Commission once for a change of physician. Ark. Code Ann. 11-9-514(a)(2) (Supp. 1995). The statute provides the following:

If the employer selects a physician, the claimant may petition the Commission one (1) time only for a change of physician and if the Commission approves the change, with or without a hearing, the Commission shall determine the second physician and shall not be bound by the recommendation of claimant or respondent. . . .

[15] However, a change of physician, even where the employer makes the initial selection, will not be automatically granted merely because the claimant requests the change. Even though a claimant is not required to establish a compelling reason or circumstance to justify a first change of physician if the employer makes the initial choice, the Commission must review each request to assure that the change is justified. The Legislature’s use of the phrase “. . . if
the commission approves the change. . .” (emphasis added) clearly contemplates that the Commission will retain discretion to review petitions for physician changes on their merits and to approve or disapprove such changes.

[16] In the present claim, we find that the claimant has failed to prove by a preponderance of the evidence that a change of physician is justified. As discussed, cervical x-rays, lumbosacral x-rays, an MRI of the claimant’s lower back, a bone scan, and clinical examinations indicate that the claimant sustained a relatively minor injury. In addition to the primary care provided by Dr. Pollock, the claimant has received specialist referrals to an orthopedist and to an osteopath, each of whom prescribed appropriate treatment to resolve the relatively minor back sprain diagnosed by each physician.

[17] The claimant has suggested a number of grounds to justify a change of physician. In that regard, the claimant has expressed dissatisfaction with Dr. Braden’s medical conclusions and reports. However, we note that Dr. Braden only followed the claimant by referral from Dr. Pollock and in January of 1995, Dr. Braden determined that he had nothing left to offer the claimant. The claimant’s testimony established that she simply chose not to return to Dr. Pollock for additional care, but to instead seek follow-up care from her family physician. However, the Commission has held on numerous occasions that a claimant’s personal preference to change physicians is not a sufficient reason to grant a change of physician. See, Shirley Cerrato v.Pentair Industries, Full Workers’ Compensation Commission, Jan. 9, 1992 (Claim No. D912632); Ronald Chapman v. BillBlann Trucking, Full Workers’ Compensation Commission, Oct. 22, 1991 (Claim No. D903638).

[18] In addition, the claimant has suggested that the animus which she perceives between herself and Dr. Braden may somehow taint her relationship with Dr. Pollock if she returns to Dr. Pollock for additional care. As discussed, however, the claimant admitted under cross-examination that she has simply not attempted to contact Dr. Pollock. Moreover, the record indicates that Dr. Pollock has provided adequate and appropriate medical care throughout his course of treatment, and nothing in the record suggests that Dr. Pollock would exhibit any bias in treating the claimant because of her relationship with Dr. Pollock or for any other reason.

[19] Dr. Cullom has opined that his more recent diagnostic testing and clinical examinations indicate that the claimant requires evaluation by a neurosurgeon. Although the claimant has not introduced the results of any CT back scan into the record, Dr. Cullom’s office notes indicate that a recent CT scan suggests a bulging spinal disk in the claimant’s back. However, we note that Dr. Cullom’s recommendation for neurological evaluation appears based to a large extent, if not completely, on the claimant’s subjective report of pain during straight leg raise testing. Moreover, none of the claimant’s prior diagnostic or clinical test results suggest that the claimant has sustained a bulging disk. Therefore, after considering the claimant’s prior MRI which indicated no abnormality in her low back disks shortly after the injury, the claimant’s failure to submit into evidence a report for the more recent CT, the low reliability of the claimant’s subjective complaints as documented by Dr. Braden and by her functional capacity evaluation, and all other matters properly in the record, we find that the claimant has failed to prove that a change of physician for a neurological evaluation, or for any other reason, is justified at this time.

[20] In short, the clinical and diagnostic test results indicate that the claimant sustained a relatively minor injury. In addition, it is clear from the claimant’s testimony and the medical evidence that the symptoms and restrictions described by the claimant far exceed the severity of the condition indicated by extensive medical testing. Moreover, the preponderance of the evidence shows that the claimant has received appropriate medical care from Dr. Pollock, Dr. Patrick, Dr. Yao, and Dr. Braden. Likewise, there is nothing in the record suggesting that Dr. Pollock is unwilling to provide any care that is reasonably necessary for treatment of her compensable injury, including any reasonably necessary referrals.

[21] Accordingly, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has failed to prove by a preponderance of the evidence that she is entitled to a change of physician. Therefore, we find that the decision of the administrative law judge must be, and hereby is, affirmed.

[22] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[23] Commissioner Humphrey dissents.