CLAIM NO. E302582
WESLEY CASE, EMPLOYEE, CLAIMANT, v. ALTON BEAN TRUCKING CO., EMPLOYER, RESPONDENT, and WAUSAU INSURANCE CO., CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 12, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by A. GENE WILLIAMS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on March 16, 1995 finding that claimant’s petition to change physicians should be granted. After carefully conducting a de novo review of the entire record, we find that claimant has failed to offer compelling evidence, a legitimate interest or proof that any additional treatment by a physician in Marianna, Florida, is reasonable and necessary. Therefore, we reverse the decision of the Administrative Law Judge.
[3] Claimant was injured on February 12, 1993 in a truck accident. He received aggressive medical treatment and physical therapy through December 28, 1993. On that date, he was released from care by his treating physician. [4] In June of 1994, claimant gave notice of his intent to change physicians to a chiropractor in North Little Rock. Respondent controverted the proposed change contending that further treatment was not reasonable or necessary medical treatment for claimant’s work-related injury. A July 25, 1994 telephone prehearing conference was held. At that time, it was determined that the issue would be decided by the Administrative Law Judge based upon the medical reports submitted by the parties. Before the Administrative Law Judge could render an opinion, claimant moved to Florida. It appears that claimant moved to Florida sometime in late November of 1994. Claimant then requested authorization to change physician to an orthopaedic surgeon of his choice in the Marianna, Florida, area. [5] A second prehearing conference was held in January of 1995. Again, it was agreed that a full hearing was unnecessary and that the issue would be determined by reference to the medical reports and briefs submitted by the parties. An Administrative Law Judge determined in March of 1995 that claimant had a right to change to an orthopaedic surgeon of his choice in Florida. After conducting a de novo review of the record, we find that this determination is not supported by the evidence and is wholly without merit. Therefore, we reverse the decision of the Administrative Law Judge. [6] Claimant was injured in a motor vehicle on February 12, 1993. He was examined in the emergency room on that date. Between February 12, 1993 and March 5, 1993, claimant was seen on one occasion at another emergency room. An A-29 was mailed to claimant on February 18, 1993. Claimant acknowledged receipt of the notice on April 1, 1993. Claimant’s regular medical care began on March 5, 1993. At that time, he was examined by Dr. Henson. Dr. Henson referred claimant to Dr. Kilgore, an orthopaedic surgeon. Dr. Kilgore first examined claimant on March 9, 1993. Dr. Kilgore ordered an MRI of the neck and left shoulder area. Those scans were normal. Dr. Kilgore prescribed physical therapy. [7] Claimant reported to Dr. Kilgore on May 3, 1993, contending that his left shoulder “gave out”. Dr. Kilgore then referred claimant to Dr. Steven Cathey, a neurosurgeon. In July of 1993, Dr. Cathey noted that claimant was improving slowly and that claimant denied any prior history of neck or shoulder injury. Dr. Cathey also noted that claimant’s neurological examination was entirely negative. Furthermore, Dr. Cathey stated “I do not identify any restricted movement, paraspinous spasm, etc.” Dr. Cathey returned claimant to Dr. Kilgore in July of 1993. Dr. Kilgore recommended arthroscopic surgery which was performed on July 27, 1993. After the surgery, Dr. Kilgore provided monthly follow-up care through December 28, 1993 when he noted marked improvement in claimant’s condition and advised that claimant had reached maximum medical improvement. [8] Part of the significance of claimant’s medical records is that claimant did not at any time advise Drs. Kilgore, Cathey or Henson that on August 14, 1991, he had fallen eight feet from the back of a truck, landed on his back, neck, and shoulder. In fact, as a result of this fall, claimant was treated by an orthopedic surgeon from August through November of 1991. The medical records of this treatment note that claimant had “abnormally high findings on testing for magnification of symptoms.” In December of 1991, claimant joint-petitioned this claim. [9] Apparently claimant lied on his application to respondent on March 10, 1992 specifically stating that he had never been injured so as to require medical attention. [10] Claimant failed to prove that the medical treatment desired after December 28, 1993 is in any way related to his work related injury. A.C.A. §
11-9-508(a)(1987) provides that a claimant is entitled only to reasonable and necessary treatment of the work-related injury. Claimant failed to prove by a preponderance of the credible evidence that the additional medical treatment is reasonable and necessary for the treatment of his February 12, 1993 injury. [11] As a result of claimant’s work-related injury, he received aggressive medical care and physical therapy through December of 1993. In December of 1993, claimant was released from care with no further recommendation of additional treatment. The record is void of any medical evidence concerning claimant’s physical condition subsequent to December of 1993. In fact, there is no evidence of claimant’s condition after 1993. There is no testimony from claimant as to his physical condition either by evidentiary deposition or affidavit. [12] The sole reason for claimant’s request for additional treatment appears to be that he moved to Florida. This is not sufficient to find that additional treatment is related, reasonable or necessary. Thus, as stated, we reverse the decision of the Administrative Law Judge. [13] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[14] Commissioner Humphrey dissents.
[15] DISSENTING OPINION
[16] I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to receive treatment from a physician in Florida.
[17] Although the majority seems to suggest that claimant is malingering or exaggerating his symptoms, it is important to remember that in the present claim, there are clear, objective findings to support claimant’s symptoms. These findings cannot be simply explained away by some perceived inadequacy from the past. [18] As a result of the admittedly compensable injury, claimant eventually came under the care of Dr. Reed W. Kilgore, an orthopedic surgeon. Claimant’s primary symptomatology centered around his left shoulder. In a report dated July 22, 1993, Dr. Kilgore reported the following:
From the standpoint of the left shoulder, he continues to have problems, even with conservative management over an extended period of time, and has objective findings consistent with anterior shoulder subluxation. . . . I think it’s reasonable to proceed with diagnostic arthroscopy. If anterior shoulder subluxation or laxity is confirmed at the time of the shoulder arthroscopy, we should proceed with anterior shoulder ligament reconstruction, such as a Bankart repair.
[19] The arthroscopy revealed objective findings of anterior glenoid detachment and tearing, which is indicative of anterior subluxation of the shoulder. The Bankhart procedure was performed. [20] On December 28, 1993, Dr. Kilgore released claimant as having reached maximum medical improvement. However, Dr. Kilgore noted continued restriction of motion, as well as atrophy of the left shoulder girdle. Additionally, Dr. Kilgore believed claimant would continue to experience a slow improvement of his pain and that could return for treatment as needed. Dr. Kilgore rated claimant’s permanent anatomical impairment to the shoulder at 6% and respondents apparently accepted and paid benefits accordingly. [21] Thereafter, claimant moved to Florida and requested that he be permitted to occasionally see an orthopedic surgeon in Florida, rather than returning to Arkansas to see Dr. Kilgore. In my opinion, this move, plus the objective findings of continued abnormalities in the left shoulder and Dr. Kilgore’s opinion that claimant would continue to experience symptoms are sufficient to support a finding that claimant is entitled to a change of physician to an orthopedic surgeon in Florida. Accordingly, I would affirm the opinion of the Administrative Law Judge. [22] PAT WEST HUMPHREY, Commissioner