CLAIM NO. E605910
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 9, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD S. RYAN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE CAROL WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an administrative law judge’s opinion filed April 20, 1999. The administrative law judge found that pursuant to Ark. Code Ann. § 11-9-514, the claimant failed to petition the Commission for a change of physician; therefore, that any medical treatment rendered by physicians other than Drs. Rutherford, Yocum, Edrington, and Cash was not authorized and not the responsibility of the respondents. The administrative law judge also found that medical treatment rendered “by Dr. Yocum, having been ruled as unauthorized,” along with attendant hospital charges, “the lien filed on March 5, 1999, by the Department of Human Services for medical payments made, is hereby extinguished and held for naught.” The administrative law judge further found that due to “the continued deterioration of the T7 transverse process,” and claimant’s increasing pain symptoms, the spinal fusion performed by Dr. Edward Saer was both reasonable and necessary. Finally, the administrative law judge found that the claimant is entitled to additional temporary total disability compensation commencing with the date of the spinal fusion in September, 1998, and ending when the claimant reached his maximum healing period on February 16, 1999.
The Full Workers’ Compensation has reviewed the entire recor de novo. The Full Commission reverses the administrative law judge’s finding that Dr. Edward Saer was an unauthorized treating physician, but we affirm the finding that the surgery performed by Dr. Saer was reasonable and necessary to treat the claimant’s compensable injury. We reverse the administrative law judge’s finding that the lien filed by the Arkansas Department of Human Services is “extinguished and held for naught.” We affirm the finding that the claimant is entitled to temporary total disability compensation commencing with the date of the claimant’s surgery and ending when he reached maximum medical improvement on February 16, 1999. We thus reverse in part and affirm in part the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that the claimant, age 48, sustained a compensable injury on April 19, 1996. The claimant said that he fell and struck a ledge with his back after scaffolding on which he was standing collapsed. Chest x-ray taken on the date of injury showed mild decreased vertebral height at C-7. There were no rib fractures or pneumothorax. The thoracic spine showed a mild compression fracture at the anterior plate of T-7, with approximate 20% loss in height. A CT scan was obtained of the mid-thoracic spine region, confirming a compression of the vertebral body, although the vertebral body was intact, and there was no posterior component disruption. Dr. David Edrington diagnosed compression fracture, T7, prescribed medication, and discharged the claimant from the emergency room. The respondents began paying temporary total disability compensation on April 20, 1996.
Dr. John Yocum, an orthopedist, began treating the claimant and assigned modified work restrictions on April 22, 1996. On May 2, 1996, the carrier sent a Form AR-N for the claimant to complete and sign, which he did on or about May 8, 1996. Dr. Yocum thereafter stated that the claimant could return to full work on June 17, 1996, except for no lifting over 50 pounds. The respondents therefore ceased paying temporary total disability compensation after June 16, 1996.
The claimant testified that his pain symptoms increased in October, 1996 after operating a concession stand at the Arkansas State Fair. The respondents reinstated temporary total disability on October 23, 1996, on which date Dr. Yocum assigned renewed work restrictions and additional physical therapy. Repeated x-rays revealed a healing T-7 compression injury. The respondents sent the claimant to Dr. Reginald Rutherford on November 19, 1996. Dr. Rutherford’s examination of the claimant was “normal with the exception of nonorganic clinical findings pertaining to superficial tenderness, intrascapular thoracic paraspinal muscles, and nonphysiologic pain provocation, intrascapular region, with axial loading and axial rotation.” Dr. Rutherford thought the claimant was embellishing his symptoms, and he arranged a bone scan to assess the degree of healing which had transpired. In addition, Dr. Rutherford signed a Certificate to Return to Work or School, dated November 19, 1996, remarking that the claimant was not taken off work, and that there were no workplace restrictions (but the respondents continued paying temporary total disability).
The claimant followed up with Dr. Rutherford on November 25, 1996. Despite Dr. Rutherford’s earlier assessment of “superficial tenderness” and “symptom embellishment,” he now reported that the claimant’s bone scan was indeed abnormal, mid-thoracic region, “thus indicating Mr. Byars’ previously identified compression fracture is not yet healed. As a rule of thumb, the bone scan may remain abnormal for up to two years post injury, of which Mr. Byars was advised.” Dr. Rutherford continued conservative treatment modalities. The respondents again ceased paying temporary disability on December 3, 1996, and Dr. Rutherford advised the claimant on December 23, 1996 that there was no medical reason why he could not return to work. Dr. Yocum stated on January 24, 1997 that x-rays revealed a stable compression injury at T-7. Dr. Yocum recommended continued conservative treatment, but wrote, “I think he is probably going to be prone to having exacerbations of his discomfort if he gets into an occupation that involves a lot of lifting. I will release him from my care on this date. I told him to return p.r.n.” Dr. Yocum subsequently assigned the claimant a 10% permanent physical impairment rating to the body as a whole, which the respondents accepted and paid.
On March 24, 1997, Dr. Rutherford opined that the claimant had reached maximum medical improvement, recommended use of a TENS unit as long as the claimant found it beneficial, and released the claimant from his care. The claimant stated that his symptoms persisted, however, and he presented on his own to an orthopedic surgeon, Dr. Ralph Cash, on November 4, 1997. Dr. Cash’s physical examination of the claimant revealed “a mild kyphosis that is clinically apparent” but no neurological deficit. (Dorland’sIllustrated Medical Dictionary, 28th edition, defines “kyphosis” as “abnormally increased convexity in the curvature of the thoracic spine as viewed from the side; hunchback.”) Dr. Cash thought that the claimant was a candidate for a spinal fusion, for which he recommended a subspecialty evaluation. In a DisabilityCertificate dated January 9, 1998, Dr. Cash wrote that the claimant “has restrictive lifting.”
Dr. Edward Saer corresponded with Dr. Cash on January 30, 1998:
Thanks for asking me to see Clifton Byars. . . . X-rays which he brought with him show evidence of mild superior endplate compression at T7 on the initial films. On films taken in October 1996 there’s significant collapse greater than 50%, with some anterior bone formation. We got films today and this shows no change in the amount of collaspe (sic) although he does have more bone anteriorly. I can’t tell if this is solidly fused to the level above and below or not but he certainly has some exuberant bone going up to C6 (sic) and down to T8.
Dr. Saer thought that the claimant’s pain was related to the original workplace injury, and he recommended an exercise program and additional diagnostic studies.
The claimant followed up with Dr. Saer on May 22, 1998:
I reviewed his studies with him. His bone scan showed some increased uptake at the site of his fracture. The MRI shows the fracture. He has some changes there that almost suggest that it hasn’t healed completely. He has no significant canal compromise.
I had a very long discussion with Mr. Byars and his mom today. He’s at the point where he wants to go ahead and have something done surgically for this. . . . I really don’t think doing an anterior procedure would be worthwhile. We could simply do a posterior stabilization and fusion in an attempt to help relieve his pain. This would not correct his kyphosis and he understands that. Trying to correct the kyphosis would be extremely difficult. . . . The only alternative of course of surgery would be simply to give this more time and see if it will heal on it’s (sic) own and see if his symptoms will subside. He’s pretty adamant about not wanting to do that because he’s not noticed significant improvement to date.
In October, 1998, Dr. Saer wrote, “I believe within a reasonable degree of medical certainty that the fracture was a result of his work injury, and was the major cause of his surgery performed on September 2, 1998.” The claimant admitted that he did not petition the Commission for a change of physician prior to surgery by Dr. Saer. The claimant testified that he had received and signed the AR-N Form, which indicated the procedure for requesting a change of physician, but that he did not know what the form contained, and merely signed and sent it back. On December 15, 1998, Dr. Saer reported that the claimant’s back looked good, and that he had “pretty good motion.” Dr. Saer discussed that the claimant needed to gradually increase his activities. By February 16, 1999, Dr. Saer again talked to the claimant about increasing his activities, stating, “He can wean out of the brace altogether. He needs to be a little careful with bending, lifting, twisting, etc. still.” The claimant testified that surgery effectively improved his physical condition.
The claimant contended entitlement to a change of physician. He also claimed entitlement to additional temporary total disability commencing when he came under Dr. Cash’s care, and continuing until he reaches his maximum healing period. The respondents contended that the claimant’s medical treatment subsequent to Drs. Yocum, Rutherford, and Cash was unauthorized, and that the claimant is not entitled to additional temporary total disability compensation for an unauthorized surgical procedure. Hearing was held before the Commission on March 23, 1999.
In his opinion filed April 20, 1999, the administrative law judge cited the claimant’s testimony and concluded that the claimant knew that Dr. Saer was not an authorized physician. Under Ark. Code Ann. § 11-9-514(A)(2), the administrative law judge found, the claimant may petition the Commission for a change of physician, but that “treatment or services furnished or prescribed by any physician other than the one selected according to the foregoing, shall be at the claimant’s expense.” Because an “unauthorized physician,” Dr. Saer, performed the claimant’s spinal fusion surgery, the expenses for same are not the respondents’ responsibility. On the other hand, found the administrative law judge, “the mere fact that medical services were unauthorized, does not preclude the Commission from considering said medical evidence in determining whether claimant is entitled to additional temporary total disability benefits.” In that regard, the administrative law judge found that Dr. Saer’s “unauthorized” surgical treatment was reasonable and necessary, and that the claimant entered a new period of temporary total disability when he underwent the spinal fusion. The administrative law judge ordered the respondents to pay benefits to the claimant in accordance with his findings of fact; respondents appeal to the Full Commission.
II. CHANGE OF PHYSICIAN
Since the claimant’s injury occurred after July 1, 1993, this claim is subject to the provisions of Act 796 of 1993. Act 796 amended Ark. Code Ann. § 11-9-514 to read as follows:
11-9-514: Medical services and supplies — Change of physician.
(a)(1) If the employee selects a physician, the Workers’ Compensation Commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying change.
(2)(A) 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 recommendations of claimant or respondent.
(B) However, if the change desired by the claimant is to a chiropractic physician, optometrist, or podiatrist, the claimant may make the change by giving advance written notification to the employer or carrier.
(3) Following establishment of an Arkansas managed care system as provided in § 11-9-508, subdivisions (a)(1) and (2) of this section shall become null and void, and thereafter:
(A)(1) The employer shall have the right to select the initial primary care physician from among those associated with managed care entities certified by the Commission as provided in 11-9-508.
(ii) The claimant employee, however, may petition the Commission one (1) time only for a change of physician, who must also either be associated with a 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 certified managed care entity for any specialized treatment, including physical therapy, and only if such primary care physician agrees to comply with all the rules, terms, and conditions regarding services performed by the managed care entity initially chosen by the employer.
The provisions of Act 796 of 1993 are to be strictly construed.See, Ark. Code Ann. § 11-9-704(c)(3). Ark. Code Ann. § 11-9-514
(a)(1) and (2) became null and void in September, 1995, when an Arkansas managed care system was established. Since we find that the change of physician provisions of subsections (a)(1) and (2) became null and void in September, 1995, and since there is no evidence in the record to indicate that the respondents have contracted with a certified managed care entity, we find that the claimant could seek reasonable and necessary medical treatment from any physician he chose. See, Floyd Savage v. City of LittleRock, Full Workers’ Compensation Commission, order filed October 7, 1999 (E708648). Moreover, this section is inapplicable if the authorized treating physician refers the claimant to another doctor for examination or treatment. American GreetingsCorporation v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998), citing Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 952
(1985).
In his Findings of Fact in the present matter, the administrative law judge found that the claimant was paid all benefits to which he was entitled, up to the surgical fusion conducted by Dr. Edward Saer. The administrative law judge also found, however, that Dr. John Yocum’s treatment was unauthorized and not the responsibility of the respondents. Since the administrative law judge determined in his Conclusion section that Dr. Saer’s treatment was unauthorized (though reasonable and necessary), it is apparent that the administrative law judge typographically erred in finding that Dr. Yocum’s treatment was unauthorized. We interpret the administrative law judge’s order to find that the respondents are not responsible for Dr. Saer’s
“unauthorized” medical treatment, even though he determined that said treatment was reasonable and necessary to treat the compensable injury.
After de novo review, the Full Commission reverses the administrative law judge’s finding that Dr. Saer was an unauthorized treating physician. The respondents agreed to medical treatment of the claimant from Dr. Cash, even though they did not “pre-approve” said treatment. The respondents implicitly assent with the administrative law judge’s finding that Dr. Cash was an authorized treating physician. The record before the Commission plainly shows that Dr. Cash referred the claimant to Dr. Saer. The claimant testified that Dr. Cash “recommended me to Dr. Saer.” Upon Dr. Saer’s first examination of the claimant in January, 1998, he wrote to Dr. Cash, saying, “Thanks for asking me to see Clifton Byars.” Therefore, Dr. Cash’s referral to Dr. Saer is not even considered a change of physician under Arkansas Workers’ Compensation Law, before or after the amendments of Act 796 of 1993. See, American Greetings v. Garey, supra. The Full Commission finds that Dr. Saer’s treatment was authorized, and we reverse the decision of the administrative law judge in this regard.
III. MEDICAL TREATMENT
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Supp. 1997). 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 (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.Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (D511255). What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. Arkansas Department of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994).
The administrative law judge found in the present matter that “due to the continued deterioration of the T7 transverse process, and claimant’s increasing pain symptoms, the spinal fusion performed by Dr. Edward Saer was both reasonable and necessary.” We affirm the administrative law judge’s finding that surgical treatment performed by Dr. Saer was both reasonable and necessary. The claimant sustained a compensable injury on April 19, 1996, when he fell and struck a ledge with his back. Chest x-ray taken on the date of injury showed decreased vertebral height at C-7, and the thoracic spine showed a mild compression fracture and loss of height at T-7. A CT scan confirmed a compression of the vertebral body in the mid-thoracic spine. Dr. Edrington diagnosed compression fracture, T-7, and the claimant initially received conservative treatment.
Dr. Yocum, an orthopedist, released the claimant to restricted work in June, 1996, but the claimant’s pain symptoms increased after operating a concession stand in October, 1996. Repeated x-rays revealed a “healing” compression injury at T-7. In November, 1996, Dr. Rutherford reported that a bone scan of the claimant’s mid-thoracic region was abnormal. Dr. Rutherford thus opined that the claimant’s work-related compression fracture had not yet healed. Dr. Yocum stated in January, 1997 that x-rays continued to reveal a “stable” compression injury at T-7, and Dr. Rutherford opined in March, 1997 that the claimant had reached maximum medical improvement. Nevertheless, the claimant subsequently came under the authorized orthopedic care of Dr. Ralph Cash. Dr. Cash thought that the claimant was a candidate for spinal fusion. Dr. Cash thus referred the claimant to Dr. Edward Saer for a subspecialty evaluation, and Dr. Saer’s review of x-rays showed evidence of endplate compression at T-7, as had consistently been shown since the outset of the compensable injury in April, 1996. Further, Dr. Saer thought that the claimant’s chronic pain was related to the compensable injury, and he recommended an exercise program and additional diagnostic studies. Dr. Yocum corresponded with the respondents in April 1998, stating that the studies suggested by Dr. Saer were proper and that further treatment of the claimant was indicated.
In May, 1998, Dr. Saer reported that a bone scan showed increased uptake at the site of the claimant’s thoracic compression fracture, also confirmed by MRI. Dr. Saer reported that the claimant’s injury had not yet healed. Dr. Saer thought that a posterior stabilization and fusion would help relieve the claimant’s pain. After performing this surgery in September, 1998, Dr. Saer stated within a reasonable degree of medical certainty that the thoracic compression fracture resulted from the workplace injury, leading to the necessity for surgery. The claimant credibly testified that Dr. Saer’s surgery significantly improved his physical condition. Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Billy Chronister v. Lavaca Vault., Full Workers’ Compensation Commission, June 20, 1991 (D704562). We affirm the administrative law judge’s finding that the spinal fusion performed by Dr. Saer was both reasonable and necessary.
IV. TEMPORARY DISABILITY
An injured employee is entitled to temporary total disability compensation when he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway andTransportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The “healing period” is defined as the period necessary for healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Supp. 1997). 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. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities.
In the present matter, the claimant sustained a compensable injury on April 19, 1996. Dr. Edrington reviewed a chest x-ray and CT scan, diagnosed compression fracture at T-7, and the respondents began paying temporary total disability compensation on April 20, 1996. The respondents initially ceased paying temporary total disability after June 16, 1996, when Dr. Yocum released the claimant to restricted work activity. The claimant’s pain symptoms increased in October, 1996, and the respondents therefore reinstated temporary total disability on October 23, 1996. Although Dr. Rutherford reported in November, 1996 that the claimant’s compression fracture had not yet healed, the respondents again discontinued temporary disability compensation on December 3, 1996.
By January, 1997, Dr. Yocum indicated that the claimant’s compression injury at T-7 was “stable,” and Dr. Rutherford pronounced “maximum medical improvement” in March, 1997. Yet, the claimant’s pain symptoms persisted, and Dr. Cash thought in January, 1998 that the claimant was a candidate for a spinal fusion. In January, 1998, Dr. Saer reviewed x-rays which evidenced mild superior endplate compression at T-7; additionally, in May, 1998, Dr. Saer reported that a bone scan showed some increased uptake at the site of the claimant’s thoracic fracture, confirmed by MRI. Dr. Saer, an orthopedic surgeon, was concerned that the claimant’s injury had not completely healed. Whether an employee’s healing period has ended is a factual determination to be made by the Commission. Carroll General Hospital v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). In light of the expert medical opinions confirmed by objective medical findings, we find that the claimant’s healing period continued as of the date of surgery performed by Dr. Saer in September, 1998.
The administrative law judge found that the claimant is entitled to additional temporary total disability compensation “commencing with the date of his spinal fusion surgery in September, 1998, and ending when he reached his maximum healing period on February 16, 1999.” The claimant submits that the Full Commission should affirm this finding, but the respondents argue that they should not be liable for any temporary total disability associated with “this unauthorized treatment and surgery.” Even if the Commission did find that Dr. Saer’s treatment was unauthorized, which we do not find, whether or not medical treatment is authorized is irrelevant in determining whether the claimant is entitled to temporary total disability compensation.See, Hulda M. Stephenson v. Tyson Foods, Full Workers’ Compensation Commission, June 14, 1999 (E709782). In order to be entitled to temporary total disability, a claimant must prove that he is within his healing period and totally incapacitated to earn wages. Brashears, supra. We find that the claimant remained within his healing period for the compensable injury and totally incapacitated to earn wages from time of surgery performed by Dr. Saer on September 2, 1998, until Dr. Saer’s effective medical release of the claimant on February 16, 1999. We therefore affirm the administrative law judge’s finding that the claimant is entitled to temporary total disability compensation for this time period.
V. CONCLUSION
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we reverse the administrative law judge’s finding that Dr. Saer was an unauthorized treating physician, and we affirm the finding that Dr. Saer’s surgical treatment of the claimant was reasonable and necessary to treat the compensable injury. We reverse the administrative law judge’s finding that the lien filed by the Arkansas Department of Human Services is “extinguished and held for naught.” The respondents are directed to reimburse the Arkansas Department of Human Services an amount sufficient to reimburse the Department the full amount of benefits paid on behalf of the claimant to which the Department is entitled pursuant to Ark. Code Ann. § 20-77-301 et seq. Finally, we affirm the administrative law judge’s finding that the claimant is entitled to temporary total disability compensation commencing with the date of the claimant’s surgery on September 2, 1998, and ending when he reached maximum medical improvement on February 16, 1999. We thus reverse in part and affirm in part the findings of the administrative law judge.
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, 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) (Repl. 1996).
IT IS SO ORDERED.
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ELDON F. COFFMAN, Chairman
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PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.