CLAIM NOS. E218024 E218025
CYNTHIA EAVES, EMPLOYEE, CLAIMANT v. ARLINGTON HOTEL, EMPLOYER, RESPONDENT NO. 1 and CONTINENTAL LOSS ADJUSTING SERVICES, INSURANCE CARRIER, RESPONDENT NO. 1 and SELF-INSURED SERVICES COMPANY, INSURANCE CARRIER, RESPONDENT NO. 2
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 5, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent #1 represented by the HONORABLE THOMAS J. DIAZ, Attorney at Law, Little Rock, Arkansas.
Respondent #2 represented by the HONORABLE PATRICK E. HOLLINGSWORTH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Respondent No. 2 appeals and the claimant cross appeals an opinion and order filed by the administrative law judge on December 4, 1996. In that opinion and order, the administrative law judge found that the claimant has shown by a preponderance of the credible evidence that her gastro-intestinal problems are a compensable consequence of her October 8, 1992, injury and surgery and are therefore the responsibility of respondent No. 2. In addition, the administrative law judge found that all of the claimant’s physical problems after October 8, 1992, are the result of the claimant’s October 8, 1992, injury. The administrative law judge also found that respondent No. 2 is responsible for all medical and related expenses after October 8, 1992, so long as the treatment was provided by an authorized treating physician or by referral of an authorized treating physician. In addition, the administrative law judge found that the claimant has sustained a wage loss disability of seven percent (7%) to the body as a whole for an overall permanent partial disability of seventeen percent (17%) to the body as a whole which is attributable to the October 8, 1992, injury and resulting surgery. The administrative law judge found that respondent No. 1 has paid all appropriate benefits as a result of the claimant’s November 26, 1990, injury, and the administrative law judge found that the claimant has failed to show by clear and convincing evidence that her November 26, 1990, injury was caused in substantial part by any safety violations.
[3] After conducting a de novo review of the entire record we find that the claimant proved by a preponderance of the evidence that her gastro-intestinal problems are a compensable consequence of her October 8, 1992, injury and surgery and that this condition is therefore the responsibility of respondent No. 2. In addition, we find that Dr. Fletcher, Dr. Bodemann, Dr. Rogers, and Dr. Dunn are authorized treating physicians within the chain of referral for the claimant’s October 8, 1992, injury. We find that the claimant has sustained a permanent impairment to her earning capacity equal to seven percent (7%) rated to the body as a whole as a result of her October 8, 1992, injury and resulting surgery which is the sole responsibility of respondent No. 2. We also find that the claimant has failed to prove by clear and convincing evidence that her November 26, 1990, injury was caused in substantial part by any safety violations. Therefore, we find that the administrative law judge’s decision in these regards must be affirmed.
[4] However, we find that all of the claimant’s cervical problems are a recurrence of the claimant’s November 26, 1990, injury. Therefore, we find that respondent No. 1 is responsible for the controverted medical benefits related to the claimant’s cervical problems. In addition, we find that Dr. Bodemann is the claimant’s authorized treating physician for her November 26, 1990, injury. Therefore, we find the administrative law judge’s decision in this regard must be reversed.
[5] The claimant sustained an admittedly compensable injury on November 26, 1990, when she fell down a flight of stairs. The claimant struck her head and was unconscious for a short time. She was then taken to the emergency room at St. Joseph’s Hospital in Hot Springs where she received emergency treatment. She was subsequently followed by Dr. Michael Bodemann, a general practitioner, who is also the claimant’s treating family physician. In addition to the care provided at St. Joseph’s Hospital and the care provided by Dr. Michael Bodemann, the claimant has also received massage therapy for her 1990 injury by referral from the respondent employer. However, the massage therapy is not under the direction of Dr. Bodemann or any other treating physician.
[6] The claimant testified that she experienced problems with her head, wrist, neck, and low back as a result of the 1990 fall. However, the claimant did not miss any work as a result of the fall. Respondent No. 1, the employer’s carrier at the time, paid various medical and related expenses related to that injury through December 11, 1990.
[7] The claimant sustained a second compensable injury on October 8, 1992, when respondent No. 2 was providing workers’ compensation coverage for the respondent employer. The October 8, 1992, injury occurred while claimant was pulling some large plants on rollers. The claimant testified that “something snapped” and that she experienced pain in her neck and lower back. The employer initially referred the claimant to Dr. Garner who released the claimant to return to work on light-duty for a period of time. The claimant was next seen by Dr. Bruce Smith, an orthopedic surgeon in Hot Springs, who took her off work on November 30, 1992. She was subsequently seen by Dr. Reginald Rutherford, a neurologist in Little Rock, and ultimately came under the care and treatment of Dr. Thomas Fletcher, a neurosurgeon.
[8] Dr. Fletcher ultimately performed back surgery on April 12, 1993. Respondent No. 2 paid the claimant temporary total disability to March of 1994. Dr. Fletcher assigned the claimant a 10 percent anatomical impairment as a result of her October 8, 1992 injury and subsequent surgery, and this disability compensation has also been paid by respondent No. 2.
[9] At the time of her hospitalization for back surgery in April of 1993, the claimant developed gastrointestinal problems. In addition, the claimant experienced pain in her ribs. The claimant testified that Dr. Fletcher ordered her to present to her family physician on account of her rib problems. The claimant testified that she returned to Dr. Bodemann and that Dr. Bodemann subsequently referred her to Dr. Rogers and Dr. Dunn in reference to her gastrointestinal problems.
[10] The claimant testified that, during October of 1993, she also experienced additional problems with her neck and returned to Dr. Bodemann for further evaluation and treatment for those problems as well. Dr. Bodemann caused an MRI to be performed and prescribed physical therapy.
[11] In the present claim, the claimant seeks permanent disability benefits related to an impairment to her earning capacity with regard to her October 8, 1992, low back injury and subsequent surgery. In addition, the claimant seeks payment of medical expenses for treatment provided by Dr. Bodemann in 1993 including the MRI and physical therapy that he prescribed. The claimant also asserts that her gastro-intestinal problems were the result of medical complications associated with her compensable injuries and surgery performed in April 1993. The respondents controvert any benefits in addition to those which have already been paid. In addition respondent No. 2 specifically asserts that the treatment provided by Dr. Rogers and Dr. Dunn was unauthorized medical treatment.
[12] We find that the greater weight of the evidence indicates that the claimant’s continuing neck problems are a recurrence of her 1990 fall down a flight of stairs while respondent No. 1 was on the coverage. In reaching this decision, we note that the administrative law judge found that the 1993 pulling incident was an independent intervening cause of the claimant’s neck problems. However, we note that the 1993 incident did not involve a fall or any type of direct trauma to the claimant’s neck. In addition, we note that Dr. Bodemann’s records indicate that the claimant continued to experience symptoms in her neck during the course of the two years between the 1990 and the 1992 incidents (although the claimant did not seek additional care from Dr. Bodemann for those complaints during the two year period). We also note that radiological examinations of the claimant’s neck made immediately after the 1990 incident and in 1993, after the 1992 incident, show essentially the same abnormality. Likewise, we note that Dr. Fletcher opined that he felt the claimant’s neck problems were more likely related to the 1990 incident than to the 1992 incident. Consequently, we find that the greater weight of the evidence indicates that the claimant’s 1993 neck problems were a recurrence of the 1990 injury.
[13] In addition, we note that Dr. Bodemann was the claimant’s last (and only) authorized treating physician for the 1990 injury. Moreover, the record indicates that Dr. Bodemann subsequently ordered the 1993 MRI and physical therapy. Therefore, since we find that the claimant’s 1993 neck problems were a recurrence of her 1990 injury, and since we find that this treatment was ordered by her authorized treating physician for the 1990 injury, we find that respondent No. 1 is liable for the medical care provided and ordered by Dr. Bodemann for the claimant’s cervical problems in 1993. In addition, we find that respondent No. 1 is liable for any additional medical care which is reasonably necessary for the claimant’s cervical injury.
[14] With regard to the claimant’s gastro-intestinal problems following her surgery while respondent No. 2 was on the coverage, we note that respondent No. 2 acknowledges in their reply brief on appeal to the Full Commission that the gastro-intestinal problems are a compensable consequence as to the injury sustained while respondent No. 2 was on the coverage. Nevertheless, respondent No. 2 denies liability for treatment provided for this condition, contending that Dr. Rogers and Dr. Dunn were neither the claimant’s authorized treating physicians nor were they providing medical treatment through a legitimate referral from an authorized treating physician. However, we note that Dr. Fletcher referred the claimant to her family physician (Dr. Bodemann) for the conditions that did not specifically relate to her back abnormality, and we note that Dr. Bodemann referred the claimant for additional treatment to Dr. Dunn and Dr. Rogers. Consequently, we find that the greater weight of the evidence establishes that the claimant received treatment from Dr. Rogers and Dr. Dunn through a legitimate chain of referrals from her authorized treating physician Dr. Fletcher. Consequently, we find that respondent No. 2 is liable for the treatment provided by Dr. Rogers and Dr. Dunn at issue in this claim. We further find that respondent No. 2 is liable for any additional medical care which is reasonably necessary for the claimant’s October 8, 1992, injury or the complications sustained therefrom.
[15] With regard to the claimant’s claim for permanent disability benefits in excess of her ten percent (10%) anatomical impairment rating assigned by Dr. Fletcher, the record indicates that the claimant was 30 years old at the time of the hearing and has a high school education. In addition, the claimant has attended the University of Arkansas at Fayetteville, the University of Arkansas at Little Rock, and Garland County Community College for several years, but has not attained any degrees. The claimant has also completed a real estate school and has a real estate sales license. The claimant’s work experience has primarily been in real estate sales plus her work for the respondent employer, Arlington Hotel. With regard to her work for the respondent employer, the claimant first became employed in 1986 as a hostess. In 1988 or 1989 she worked her way into management, initially as a supervisor, and later as the assistant restaurant manager in charge of five dining facilities at the hotel. When the claimant last worked for the respondent, she was earning $7.50 per hour. The claimant testified that due to a great deal of overtime work, her last annual salary was in excess of $20,000 per year.
[16] With regard to the claimant’s medical limitations as a result of her 1992, injury the record indicates that Dr. Fletcher performed a lumbar laminectomy with a L4-5 diskectomy and exploration of the L5-S1 disc on April 12, 1993. On February 3, 1994, approximately nine months later, Dr. Fletcher released the claimant to return to work. At that time he indicated that the claimant will be able to perform light forms of work which do not require lifting in excess of 10 to 20 pounds. In addition, Dr. Fletcher indicated that the claimant must avoid prolonged sitting or standing in one position and that she will be restricted in frequent bending or lifting with straining as well as squatting or climbing. Dr. Fletcher indicated that she could best perform sedentary-type work (which would be sitting or standing and carrying out very light type activity).
[17] After considering the claimant’s relatively young age, her education and work experience, and all other relevant factors we find that the claimant sustained a seven percent (7%) impairment to her earning capacity in excess of the ten percent (10%) permanent anatomical impairment assigned by Dr. Fletcher. In reaching our decision, we recognize that the physical limitation imposed by Dr. Fletcher will prohibit the claimant from engaging in any heavy physical employment. In addition, the limitations may also prohibit the claimant from engaging in any medium duty employment. However, we also note that the claimant’s job experience in real estate should qualify her for a relatively sedentary field of work if she chooses to re-enter that field. In addition, we note that the claimant has transferrable job skills in management which will also facilitate her return to work in a relatively sedentary environment. Likewise, we note that the claimant has returned to work at least part time in the family restaurant.
[18] Respondent No. 2 asserts on appeal that the claimant received a bona fide offer of employment from the respondent employer at the same or greater wages than she was earning at the time of her injury. Therefore, according to respondent No. 2, the claimant’s present claim for permanent disability benefits in excess of her permanent anatomical impairment assigned by Dr. Fletcher is barred by the provisions of Ark. Code Ann. §
11-9-522(b) (1987). With regard to this issue the record indicates that the claimant was employed prior to her injury as a supervisor and was paid $7.50 per hour. In addition, the claimant’s credible testimony indicates that she worked significant overtime at this wage rate. However, the offer of re-employment made by the respondent employer, although at $7.50 per hour, was made with the understanding that the claimant would not be entitled to any additional overtime work. Consequently, we find that the respondents failed to prove by a preponderance of the evidence that the claimant was made an offer of employment at wages greater than or equal to the wages that she was earning at the time of her compensable injury. Therefore, we find that the respondents failed to show that the claimant’s present claim for permanent disability in excess of the permanent anatomical impairment assigned by Dr. Fletcher is barred by the provisions of Ark. Code Ann. §
11-9-522(b).
[19] The claimant asserts that respondent No. 1 is responsible for an alleged safety violation and therefore is liable to claimant for a safety violation penalty pursuant to Ark. Code Ann. §
11-9-503. That section provides that claimant’s compensation will be increased by 25 percent if she can establish by clear and convincing evidence that her injury was caused in substantial part by the violation of a safety statute or regulation. In the present claim, the claimant asserts that the respondents failed to comply with Rule 6 and Rule 12 of the Arkansas Department of Labors Basic Safety Manual. In this regard Rule 6 provides:
Keep floors clean in order to keep them from becoming slippery.
[20] Likewise Rule 12 of the Arkansas Department of Labors Basic SafetyManual provides:
All floor surfaces shall be maintained in a smooth non-slippery condition free from holes and projections which might cause tripping.
[21] The claimant testified that her November 26, 1990, injury occurred as she was leaving the hotel through the employee exit descending a flight of stairs. The claimant testified that the stairs were covered with “a greasy mushy substance” which had been freshly mopped causing the surface to be extremely slippery. The claimant testified that the stairs were filthy with a mushy, greasy substance approximately an inch thick, which the claimant testified she had observed many times before the fall. According to the claimant, this condition was caused by the kitchen personnel who pushed the grease from the kitchen into this area. The claimant testified that prior to this accident, she had made numerous complaints to Mr. Fischer, the general manager of the hotel, and Wanda Benson, the personnel manager regarding the stairs. The claimant’s husband, Mr. Vahid Baghestani, testified that he was the claimant’s supervisor at the time of the November 26, 1990, injury. According to Mr. Baghestani, he had also made complaints on many occasions to Mr. Fischer and Ms. Benson about the unsafe condition of the stairway. According to Mr. Baghestani, these complaints were made orally and in writing.
[22] In assessing the weight to be accorded the testimony of the claimant and her husband regarding the alleged dangerous greasy condition of the stairway, which was allegedly caused by kitchen personnel, we initially note that the claimant was the assistant restaurant manager at the respondent’s facility and that the claimant’s husband was her supervisor. Thus, it appears that the claimant and her husband were directly over the employees who the couple now assert engaged in a dangerous employment practice. We also note that the claimant’s husband also has significant ongoing litigation against the respondent on his own behalf. In addition, we note that although the claimant’s husband indicated that he had made written complaints about the condition of the stairs, no such written documents were submitted into the evidence at this hearing. Consequently, considering the status of the claimant’s husband’s litigation against the respondents, we find that the testimony of the claimant’s husband, without some degree of corroborative documentation, is entitled to little weight. In addition, we find that the testimony of the claimant, which is corroborated only by the testimony of her husband who has an interest in the outcome of this litigation as well as his own litigation against the respondents, is also entitled to little weight. In reaching our decision, we also note that Carl Heineman, the person in charge of maintenance at the time of the claimant’s fall, testified that he never received any complaints or written notification that the kitchen steps had a problem. In addition, he stated that any request or complaints regarding the steps would have been forwarded to him for action. Mr. Heineman testified that he attended department head meetings in 1990 and that he did not recall the claimant’s husband ever mentioning anything regarding the condition of the kitchen steps. Moreover, Mr. Heineman testified that he was familiar with the steps where the fall occurred in November of 1990 and that he could not recall any problems with those steps during that period of time.
[23] After weighing the testimony of the claimant, her husband, Mr. Heineman, and all other evidence in the record, we find that the claimant has failed to prove by clear and convincing evidence that her slip and fall injury on the kitchen steps when she was the assistant restaurant manager was caused in substantial part by violation of Rule 6 or Rule 12 of the Arkansas Department of Health rules. Consequently, we find that the claimant failed to establish by clear and convincing evidence that respondent No. 1 is liable for a safety violation penalty pursuant to Ark. Code Ann. §
11-9-503.
[24] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, affirmed in part and reversed in part.
[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 (Repl. 1996). For prevailing in part 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).
[26] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[27] Commissioner Humphrey concurs in part and dissents in part.
[28] CONCURRING AND DISSENTING OPINION
[29] I concur with the principal opinion except to the extent it finds that claimant failed to prove that her November 26, 1990, injury was caused by a safety violation. In my opinion, this aspect of the Administrative Law Judge’s decision should be reversed.
[30] I find claimant’s testimony, as well as her husband’s, to be entirely credible. I would accordingly allow full weight to their account of the condition of the stairwell on which claimant fell on November 26, 1990, and would find that said condition amounted a failure on the part of respondent employer to maintain a safe workplace.
[31] As set out above, I concur in part and respectfully dissent in part from the principal opinion.
[32] PAT WEST HUMPHREY, Commissioner
[33] Commissioner Wilson concurs in part and dissents in part.
[34] CONCURRING AND DISSENTING OPINION
[35] I respectfully dissent in part and concur in part from the majority’s opinion. Specifically, I dissent from the findings that respondent No. 1 is responsible for the medical and related expenses of claimant’s cervical problems; that claimant sustained a wage loss disability of seven percent (7%) to the body as a whole over and above the ten percent (10%) physical impairment rating for which respondent No. 2 is responsible; and that Dr. Bodemann, Dr. Rogers and Dr. Dunn are all authorized treating physicians of claimant’s October 8, 1992 injury. However, I concur with the finding that claimant’s gastro-intestinal problems are a compensable consequence of her October 8, 1992, injury and that claimant has failed to show by clear and convincing evidence that her November 26, 1990, injury was caused, in substantial part, by a safety violation.
[36] Claimant has sustained two separate compensable injuries while employed by Arlington Hotel. Arlington, however, was insured by different carriers at the time of claimant’s injuries. Claimant’s first injury occurred on November 26, 1990, when Arlington was insured by Continental Loss Adjusting Services, Respondent No. 1. This injury occurred when claimant fell down a flight of stairs, hitting her head and knocking claimant unconscious for a short period of time. Claimant did not miss any time from work as a result of the November 26, 1990, injury. The claim was accepted as compensable and treated as a medicals only claim. Claimant continued to work for Arlington until October 8, 1992, when she sustained a second injury while Arlington was insured by Self Insured Services Company, Respondent No. 2. Claimant’s second injury occurred when she was pushing or pulling large plants on rollers across the floor and “something snapped” in claimant’s neck and lower back. As a result of this second injury, claimant was originally treated by Dr. Gardner and released to return to light-duty work. As claimant’s symptoms continued to persist, claimant eventually came under the care of Dr. Bruce Smith, an orthopedic surgeon who took claimant off work on November 30, 1992. Dr. Smith recommended surgery and claimant was seen for a second and third opinion by Dr. Reginald Rutherford, and Dr. Thomas Fletcher, both neurologists. On April 12, 1993, claimant underwent back surgery at the hands of Dr. Fletcher. Dr. Fletcher eventually released claimant to return to work on or about March of 1994 with a ten percent (10%) whole body impairment.
[37] The evidence reflects that during claimant’s hospitalization for back problems claimant developed gastrointestinal problems. The Administrative Law Judge found that these problems were a compensable consequence of claimant’s compensable injury and neither respondent has appealed this finding. The evidence also reflects that shortly after undergoing back surgery claimant began to experience problems with one of her ribs. The parties do not appear to be in dispute over whether the rib problem is a compensable consequence. I find that both the gastro-intestinal problems and the rib problem are compensable consequences of claimant’s second injury.
[38] The record also reflects that during October of 1993 claimant again came under the care of Dr. Michael Bodemann for the treatment of neck problems. It must be noted that Dr. Bodemann initially treated claimant for her 1990 injury. The principal opinion finds that claimant’s neck problems were a compensable consequence of claimant’s 1990 injury and thus all responsibility for the neck problems are to be born by respondent No. 1. I cannot agree that the neck problems are a compensable consequence of the 1990 injury.
[39] Respondent No. 2 accepted the finding of the Administrative Law Judge that the gastro-intestinal problems are a compensable consequence of claimant’s 1992 injury. However, respondent No. 2 appealed the finding that they are responsible for the medical treatment of such problem on the grounds that all treatment was outside the chain of authorized treating physicians. I agree with respondent No. 2 on this issue. Claimant’s treating physician was Dr. Thomas Fletcher. Dr. Fletcher noted in his July 19, 1993, correspondence to respondent No. 2 that claimant had complained of pain at her lower anterior rib margin on the left side. Dr. Fletcher noted:
At that time I recommended that she see her local physician for that complaint which appeared to be related to some bruising due to her positioning on the operating table on the padded frame that is used for that purpose.
[40] Dr. Fletcher made note of claimant’s gastro-intestinal complaints; however, he did not refer claimant to her local physician for such problems. Claimant took it upon herself to receive treatment for her gastro-intestinal problems from Dr. David Rogers and Dr. Richard Dunn without first seeking approval of their treatment from respondent No. 2. I must point out that the record reflects claimant did receive Form A-29 setting forth claimant’s rights and obligations with regard to a change of physician. I find that claimant has failed to prove by a preponderance of the evidence that she received a valid referral from Dr. Fletcher to either Dr. Rogers or Dr. Dunn. “Whether treatment is the result of a `referral’ rather than a `change of physician’ is a factual determination to be made by the Commission.” Pennington v. Gene Cosby Floor and Carpet,
51 Ark. App. 128,
911 S.W.2d 600 (1995). The Commission’s authority to characterize a change of physician as a referral has its origin in our Rule 23, which authorizes the Commission to permit deviation from the Commission’s rules when compliance is impossible or impractical. Id. In Patrick v. Arkansas Oak Floor,
39 Ark. App. 34,
833 S.W.2d 790 (1992), the claimant’s treating physician advised the claimant that he had done all he could do for the claimant and stated that if the claimant wanted to see another physician he would be glad to make a referral. The doctor’s notes in Patrick specifically stated “Perhaps a referral to another orthopedic surgeon would be appropriate.” The claimant in Patrick
advised his treating physician that he would like to see a neurological specialist. The Arkansas Court of Appeals held that a referral made based upon a request by claimant is not a valid referral, but rather, is in the nature of a change of physician.Id.
[41] Dr. Fletcher’s correspondence set forth above is clear, he did not refer claimant to Dr. Rogers or Dr. Dunn for the treatment of her gastro-intestinal problems. Rather, Dr. Fletcher referred claimant to her “local physician” for the treatment of her rib complaints. The rib complaints are separate and distinct from the gastro-intestinal problems. If claimant needed treatment for her gastro-intestinal problems, it was claimant’s responsibility to either obtain a valid referral for such treatment from Dr. Fletcher or to follow the change of physician procedures and obtain a change from Dr. Fletcher to a physician specializing in that area of medical expertise. Clearly, claimant did not do that. While respondent No. 2 is responsible for the treatment of Dr. Rogers and Dr. Dunn insofar as that treatment related to claimant’s rib complaints, I find that claimant has failed to prove by a preponderance of the evidence that she received a valid referral to these doctors for her gastro-intestinal complaints. Accordingly, I must dissent from the principal opinion finding respondent No. 2 responsible for this treatment which I find to be outside the chain of authorized treating physicians.
[42] Likewise, with regard to the treatment of claimant’s neck problems in October of 1993, I cannot find that the problems claimant experienced in October of 1993 were a compensable consequence of claimant’s original 1990 injury. Claimant clearly sustained a new injury or aggravation in 1992 thus, breaking the chain of causation from the 1990 injury. Therefore, I must dissent from the principal opinion on this issue.
[43] In addition, I cannot find that respondent No. 2 is responsible for the treatment of the neck complaints in 1993 since claimant failed to obtain authorized medical treatment for this problem. Although Dr. Bodemann treated claimant for the 1990 injury and was the authorized treating physician for that injury, Dr. Bodemann was not the authorized treating physician for claimant’s 1992 injury. Thus, when claimant took it upon herself to seek treatment from Dr. Bodemann for her neck complaints, she again stepped outside the chain of physicians since she did not have a valid referral to Dr. Bodemann nor was he ever an authorized physician for the 1992 injury. Accordingly, I find that claimant has failed to prove by a preponderance of the evidence that respondent No. 2 is responsible for the medical treatment rendered by Dr. Bodemann or through his referrals as he was not an authorized treating physician, and I respectfully dissent from this finding.
[44] With regard to the seven percent (7%) wage loss disability awarded in the principal opinion, I find that claimant has failed to prove entitlement to such benefits.
[45] At the time of claimant’s 1992 injury, she was only 26 years old. At the hearing held in July of 1996 claimant was 30 years of age. Claimant is well educated, having attended the University of Arkansas at Fayetteville, UALR, and Garland County Community College. In addition, claimant at one time held her Real Estate License although she let the license lapse in the recent past. In addition to the hostess work claimant originally performed at the Arlington, claimant was promoted several times to a supervisory position and at the time of her 1992 injury was in charge of five restaurants within that facility. Given claimant’s young age, education, and relatively nominal physical impairment rating, I find that claimant has failed to prove by a preponderance of the evidence that she has sustained any wage loss disability.
[46] In my opinion, if claimant is not working presently, such is not the result of her work-related injury. Claimant was offered a job to return back to work for respondent, a position which she originally accepted and then later resigned from. I am convinced that if claimant were to place herself back into the job market, she would find employment earning wages equal to or greater than what she was earning at the time of her injury. If claimant has sustained any decrease in her wage earning capacity, such decrease has been brought on claimant by herself by her refusal to return to work for the Arlington, and by her failure to seek gainful employment. Claimant currently appears content to write poetry with the hopes of someday earning money from publishing her literary works. This is by no means a work-related decrease in ones’ wage earning capacity. Therefore, I respectfully dissent from the principal opinion on this issue.
[47] Finally, I concur with the principal opinion finding that claimant has failed to prove by clear and convincing evidence that her 1990 injury was caused, in substantial part, by a safety violation.
[48] MIKE WILSON, Commissioner
