CLAIM NO. E803946
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 18, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondent represented by HONORABLE J. R. WILDMAN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Modified.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the Administrative Law Judge on March 18, 2002. In that opinion and order, the Administrative Law Judge found in relevant part that the preponderance of the evidence reflects that the claimant is entitled to a one-time change of physician from Dr. Earl Peeples to Dr. Jim Citty, but that the preponderance of the evidence also reflects that the claimant is not entitled to additional treatment from Dr. Jim Citty because the proposed visit to Dr. Citty is not reasonably necessary for the treatment of her compensable injury. On appeal, the claimant asserts that it was legal error for the Administrative Law Judge to award the claimant a one-time change of physician without at least permitting the claimant to see her new physician one time in order to determine whether his suggestions, if any, are reasonably necessary for treatment of her compensable injury. We agree. For the reasons discussed below, we understand the claimant to be automatically entitled to a one-time visit to her new authorized treating physician when a change of physician is made pursuant to Ark. Code Ann. § 11-9-514(a)(3)(A)(iii).
Ark. Code Ann. § 11-9-514(3)(A)(iii) states:
Where the employer does not have a contract with a managed care organization certified by the commission, the claimant employee, however, shall be allowed to change physicians by petitioning the commission one (1) time only for a change of physician, to a physician who must either be associated with any managed care entity certified by the commission or be the regular treating physician of the employee who maintains the employee’s medical records and with whom the employee has a bona fide doctor-patient relationship demonstrated by a history of regular treatment prior to the onset of the compensable injury, but only if the primary care physician agrees to refer the employee to a physician associated with any managed care entity certified by the commission for any specialized treatment, including physical therapy, and only if the primary care physician agrees to comply with all the rules, terms, and conditions regarding services performed by any managed care entity certified by the commission.
In the present case, the respondent has not appealed the Administrative Law Judge’s selection of Dr. Citty to be the claimant’s treating physician in her one-time change of physician from Dr. Earl Peeples to Dr. Citty. However, as discussed above, the claimant appeals the Administrative Law Judge’s conclusion that the claimant is not entitled to even a one-time visit to Dr. Citty at the respondent’s expense. In the recent case of Collins v. Lennox Industries, Inc., 77 Ark. App. 303, ___ S.W.3d ___ (2002), the Commission found that an injured worker had failed to establish that he was entitled to any additional medical treatment, and on that basis, denied the claimant’s request for a one-time change of physician. In reversing the decision of the Full Commission, the Court stated:
Because we find that a one-time change of physician is mandatory, we hold that the Commission’s finding that the employer had fulfilled the obligation of providing adequate medical treatment, diagnostic testing, and consultation with specialists, under the provisions of Ark. Code Ann. § 11-9-508 was not supported by substantial evidence and accordingly reversed. . . . Therefore, we reverse and remand with instructions to order a change of physician.
As we understand the plain language of the Court’s reasoning i Collins, we are without authority to find that the respondent in the present case has fulfilled its obligation of providing adequate medical treatment for the claimant’s compensable injury prior to the claimant receiving her mandatory one-time change of physician. Absent any further guidance from the courts, we are therefore constrained to agree with the claimant’s argument on appeal in the present case that the claimant is entitled to at least a one-time visit to Dr. Citty at the respondent’s expense in order to determine what proposed treatment, if any, Dr. Citty might have which would be reasonably necessary for the claimant’s compensable injury.
Therefore, we find that the decision of the Administrative Law Judge is modified as indicated herein.
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 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
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION I respectfully concur in part and dissent in part from the majority’s opinion. Specifically, I concur in the majority’s opinion finding that the claimant is entitled to a change of physician. However, I cannot agree that the Commission is without authority to find that the respondent in the present case has fulfilled its obligation of providing adequate medical treatment. The majority is correct that the Courts have offered no guidance; however, my interpretation of Collins and the applicable statutes require the claimant to prove that additional medical treatment is reasonable and necessary.
Ark. Code Ann. § 11-9-704(c)(3) specifically provides:
Administrative law judges, the commission, and any reviewing courts shall construe the provision of this chapter strictly.
In construing these requirements in section 514, I recognize that the basic rule of statutory construction requires one to give effect to the intent of the legislature. Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2000) states that we are to construe the workers’ compensation statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed. Edens v. Superior Marble Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). The doctrine of strict construction is to use the plain meaning of the language employed Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Where the language of a statute is unambiguous, legislative intent can be determined from the ordinary meaning of the language used. Leathers v. Cotton, 332 Ark. 49, 52, 961 S.W.2d 32, 34 (1998). In considering the meaning of a statute, we are to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute, if possible.
Under the present law, a claimant may petition for a change of physician, and the change “shall” be granted if the proper evidence is established regarding the new selected doctor. In Collins, the Court found that a one-time change was mandatory. However, the change of physician section of the statutes only addresses whether the physician from whom the claimant seeks treatment will be an “authorized” treating physician. The change of physician section does not address whether the respondent must pay for the treatment rendered by the new doctor. My review of the change of physician statute fails to reveal any provision, expressed or implied, which addresses the respondent’s responsibility for payment of medical services. Ark. Code Ann. § 11-9-514 only addresses authorized physicians and the process for changing authorized treating physicians.
Ark. Code Ann. § 11-9-508 sets forth the employer’s liability for medical services. This section provides, in pertinent part:
(a)(T)he employer shall promptly provide for an injured employee such medical 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.
Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees’ injuries DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The treatment sought must be for reasonably necessary medical treatment in connection with the compensable injury in order for the respondent to be liable for payment of the treatment.
When these two statutes are read in conjunction with one another and strictly construed, I find that the treatment sought from the new authorized physician must be for reasonably necessary medical treatment.
The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable necessary. Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 (D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, August 27, 1993 (D703346). In workers’ compensation cases, the burden rests upon the claimant to establish his claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, the Commission must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 (D512553).
My review of the evidence in this case demonstrates that no doctor has recommended any further treatment for the claimant for her right upper extremity injury. The claimant has not sought treatment from any doctor in two years. Dr. Peeples released the claimant from his care, stating that he had no recommendations for her. Dr. Smith told the claimant that his tests for nerve damage were normal. The claimant did not return to Dr. Citty after he referred her to Dr. Smith. As a matter of fact, the claimant has not seen Dr. Citty since 1999 for any purpose.
Therefore, for all the reasons set forth herein, I dissent from the majority’s opinion allowing the claimant a one-time visit to Dr. Citty at the respondent’s expense.
_______________________________ JOE E. YATES, Commissioner