CLAIM NO. E308896
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 25, 2001.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE WILLIAM C. FRYE and the HONORABLE ROBERT B. BUCKALEW, Attorneys at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE J. RODNEY MILLS, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed June 19, 2000. The administrative law judge found that the respondents initially agreed to pay the claimant additional temporary total disability compensation from January 18, 2000 until February 25, 2000, but that the respondents have now controverted payment of this period of temporary total disability by failing to pay it in a timely manner. In addition, the administrative law judge found that treatment provided by Dr. Dale Asbury was authorized, reasonable, and necessary, as was the claimant’s treatment at the Sparks Regional Medical Center Emergency Room. The administrative law judge also found that the claimant remained in his healing period and totally incapacitated to earn wages from November 19, 1997 until a date to be determined, so that the claimant is entitled to additional temporary total disability.
After reviewing the entire record de novo, the Full Commission finds that the respondents are bound by their agreement to pay the claimant additional temporary total disability compensation from January 18, 2000 until February 25, 2000, but that the respondents have subsequently controverted this period of temporary total disability. We affirm the administrative law judge’s finding that treatment provided by Dr. Dale Asbury was authorized, reasonable, and necessary, as was the claimant’s treatment at the Sparks Regional Medical Center Emergency Room. The Full Commission reverses the administrative law judge’s finding that the claimant remained in his healing period and totally incapacitated to earn wages from November 19, 1997 until a date to be determined.
I. HISTORY
The parties stipulated that Ray Freeman, age 44, suffered a compensable injury on June 2, 1993. Mr. Freeman testified that while he was unloading a truck, some boxes fell “and hit me in the head.” The parties stipulated that the injury was “primarily to his neck.” The respondents provided medical treatment, and they began paying temporary total disability compensation on June 3, 1993.
In September, 1993, Dr. Wilbur Giles performed an anterior cervical diskectomy and fusion, C4-5, C5-6. The respondents ceased paying temporary total disability after February 2, 1994. Dr. Jim J. Moore conducted a neurosurgical independent medical evaluation on August 24, 1994:
This patient then is in a fairly remote status of anterior cervical surgery with less than optimal results. He has improved, at least the radicular component of his problems, and
I do not see any obvious neurologic deterioration.
The patient has been demonstrated on radiographs to have a failure to fuse, at least at C4-5
and apparently possibly C5-6. It is my feeling that this patient has not reached the end of a healing period and will not until the pseudoarthrosis has resolved, either spontaneously or by additional surgery. . . .I do feel this patient requires medical care and it is felt that the most appropriate individual to provide this, either surgically or nonsurgically, would be the operating surgeon, in this instance, Dr. Giles.
Mr. Freeman claimed entitlement to additional worker’s compensation, contending that he was entitled to temporary total disability compensation from February 3, 1994 until a date to be determined. The claimant contended that he was entitled to medical treatment by Dr. Giles, including the expense of additional surgery. The respondents contended that the claimant reached the end of his healing period on February 2, 1994. The respondents also contended that medical treatment by Dr. Giles, including additional surgery, was not reasonable and necessary.
In correspondence dated January 23, 1996, the respondents suggested “that the claimant return to Dr. Carle at MediStat if he needs medical attention. The claimant went well over a year without any medical attention, and the last doctor he saw apparently was Dr. Carle.” On January 24, 1996, the respondents stated that “the primary care physician is the place for the claimant to start”, and they provided the telephone number for Dr. Ibson at MediStat.
After a hearing before the Commission, the administrative law judge found that the claimant showed that he had not reached the end of his healing period for the compensable injury. The administrative law judge found that the claimant was entitled to “continuous medical treatment by his primary treating physician, Dr. Wilbur Giles, including the expense of additional surgery. . . .The Respondent shall pay for all medical, hospital and related expenses, arising out of the compensable injury of June 2, 1993, including additional surgery by Dr. Wilbur Giles, and shall remain responsible for continued reasonable and necessary treatment for said injury.” The administrative law judge found that the claimant was entitled to temporary total disability from February 3, 1994 to a date yet to be determined. The respondents appealed to the Full Commission.
The Full Commission affirmed the administrative law judge in an opinion filed October 22, 1996. The Full Commission found that the claimant had proved that he was entitled to continued medical treatment from Dr. Giles for the compensable injury, including surgery as recommended by Dr. Giles, and that such continued care was reasonable and necessary for treating the compensable injury. The Full Commission found that the claimant was entitled to additional temporary total disability compensation from February 3, 1994, to a date yet to be determined. The respondents appealed to the Arkansas Court of Appeals.
Meanwhile, Mr. Freeman had relocated to Fort Smith, Arkansas. “I tried to deal with the pain on my own,” he testified, and when I couldn’t anymore, I’d go to the emergency room.” He was treated at Sparks Regional Medical Center Emergency Department on November 16, 1996. The diagnosis appears to indicate “acute and chronic neck pain”, and medication was prescribed. The claimant again presented to Sparks Regional Medical Center on November 28, 1996, at which time the diagnosis was “cervical disc.” The claimant continued to periodically treat at Sparks Regional through September, 1997. During this time, the claimant complained of headaches, neck and back pain, elbow pain, and knee pain. The claimant testified that injections and medication relieved his pain.
The Court of Appeals affirmed the Commission’s award of additional temporary disability and medical treatment in an opinion delivered September 10, 1997 (CA 97-37, not designated for publication). (Rehearing denied, October 8, 1997). On October 27, 1997, Dr. Giles evaluated the claimant and diagnosed “Stable anterior cervical diskectomy and arthrodesis, 4-5 and 5-6 with mature grafts present.”
The following findings resulted from a cervical MRI taken November 6, 1997:
There are solid anterior interbody fusions at the C4-5 and C5-6 levels. . . .There is spondylosis at the C6-7 level with loss of disc height and some subchondral marrow edema felt to be degenerative in origin. No cervical cord lesions are seen. The craniocervical junction is normal. . . .
IMPRESSION:
1. Solid anterior fusion at C4-5
and C6-7 (sic) levels.
2. Bulging annuli at C3-4 and C6-7
levels. There is moderate canal stenosis at C6-7 accentuated by ligamentum flavum hypertrophy.
3. Cervical spondylosis at C6-7 with loss of disc space height and subchondral marrow edema.
Dr. Giles wrote on November 19, 1997:
CURRENT DIAGNOSIS:
Healed fusion, C4-5, C5-6 with secondary development of cervical spondylosis at
C6-7 with cervical radiculitis.
The respondents stopped paying temporary total disability compensation after November 19, 1997. Dr. Giles wrote on April 8, 1998 concerning the claimant:
I would feel that his overall permanent partial disability as a result of his injuries as a total combined 15% to the body as a whole. He will be in need of occasional muscle relaxants and mild analgesics in the future as well as possible occasional therapy modalities. In the future he can receive his medications from his local family physician. I no longer wish to be involved in his care and treatment and will no longer plan to see him in my office. He is returned to the care of his local family physician as I have nothing further to offer him from my standpoint.
A case manager for Concentra Managed Care, Inc. began contacting the claimant’s attorney on May 5, 1998 in an attempt to begin vocational rehabilitation. The case manager began meeting with the claimant in June, 1998.
The claimant contended that he was entitled to additional temporary total disability compensation for a period beginning November 19, 1997 and continuing until a date to be determined. The respondents contended that the claimant was found by his treating physician to have reached the end of his healing period on November 19, 1997.
On July 3, 1998, responding to correspondence from the claimant’s attorney, Dr. Asbury stated, “it would seem that his clinical presentation has not changed significantly and that his disability has not relented.” Dr. Asbury again wrote to the claimant’s attorney on September 11, 1998:
I am writing this in response to your letter dated September 2, 1998. In that letter, you have asked whether or not Ray is within his healing period. I know you are familiar with his past. Certainly it would be my hopes and expectations that Mr. Freeman would go back to work at some time in the near future and be able to do this. It is therefore my belief that he remains within a healing period. This is based on a single examination of the patient.
You also asked in your letter whether he is temporarily totally disabled. As stated previously in my letter of July 3rd, I believe that based on clinical presentation and his history, his disability has not changed from previous examination.
Dr. Michael S. Wolfe, an orthopedist, examined the claimant and gave the following impression on October 22, 1998:
Status post two level cervical diskectomy with fusion at C4-5 and C5-6, with residual secondary degenerative changes, but without definitive neurologic findings.
He has essentially reached maximum medical improvement. . . .
In regard to his temporary disability previously noted, he had reached completion of solid fusion by his clinic visit with Dr. Giles as of October
27, 1997 and you can make a determination of temporary disability from then, however, it appears from the radiographs seen on his visit with Dr. Tom Rooney on October 12, 1994 that this fusion was essentially complete at that point.
Allowing an additional three months for work hardening, I would have felt that by January 12,
1995 he would have likely been rehabilitated after a successful surgery and could have returned to reasonable activities at that time.
At this stage, he is essentially at maximum medical improvement. Certainly, he has been at such a light physical activity level that he might require eight to twelve weeks of effort at work hardening to allow him to return to his full activities. I do think that because the problem is in the cervical spine area, there should not be significant limitations. Certainly, carrying objects of a heavy nature, i.e. thirty to forty pounds, in the shoulder or cervical spine region should be avoided. Other than that, I
think he can return to normal activities without significant restrictions.
Mr. Freeman testified that the respondents did not provide work hardening. According to the record, however, the vocational case manager with Concentra Managed Care closed her file on November 30, 1998, stating, “Should the client choose to proceed with work hardening and then vocational rehabilitation, the account may request that this file be re-opened.”
Dr. Asbury advised in January, 1999 that further treatment for the claimant’s neck was warranted, and that “further work for the patient is not warranted at this time.” On January 13, 2000, another vocational case manager with Concentra Managed Care Services became involved in the case. The record includes a Concentra Activity Report dated January 20, 2000:
Mr. Freeman was examined by Dr. Schroeder at HealthSouth on January 18, 2000. Dr.
Schroeder recommended physical therapy, occupational therapy (conditioning) and biofeedback. Mr. Freeman had physical therapy, occupational therapy evaluation on January 20,
2000.
Dr. Schroeder indicated she felt Mr. Freeman could return to work with no overhead lifting over 25 pounds at present time.
Dr. Cygnet Schroeder wrote to Concentra on January 26, 2000:
IMPRESSION:
1. Post cervical diskectomy, multiple levels.
I would anticipate that this patient has potential to do jobs in the area of sedentary and light work within the Dictionary of Job Classifications.
Prior to his return to any kind of employment, given that he has not worked in a formal environment since his injury nor did he have post operative physical therapy, I would certainly recommend that we start at that point for a conditioning program for his neck, upper extremity strength and modalities to decrease any muscle spasm. . . .I have referred him for physical therapy here at HealthSouth Rehabilitation Hospital.
The respondents agreed to pay temporary total disability from January 18, 2000 through February 25, 2000, while the claimant treated at HealthSouth. Another functional capacity evaluation report, dated March 1, 2000, indicated that the claimant was able to work at the light physical demand level for an eight-hour day. The next day, Concentra arranged a fitness program for the claimant at Sparks Fitness Center in Fort Smith, which program included a personal trainer.
After another hearing before the Commission, the administrative law judge filed an opinion on June 19, 2000. The administrative law judge found that the claimant remained in his healing period and totally incapacitated to earn wages from November 19, 1997 until a date to be determined, so that the claimant is entitled to “additional benefits for temporary total disability.” Based on the parties’ stipulations, the administrative law judge found that the claimant was entitled to additional temporary disability from January 18, 2000 until February 25, 2000, while the claimant was “receiving authorized therapy at Healthsouth.” The administrative law judge determined that the respondents had controverted temporary total disability compensation from January 18, 2000 to February 25, 2000.
The administrative law judge found that the claimant’s treatment by Dr. Asbury was authorized and reasonably necessary for the claimant’s compensable injury and related symptoms. The administrative law judge also found that the claimant’s treatment at the Sparks Regional Medical Center Emergency Room was reasonably necessary. The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Temporary Total Disability
Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that 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). Ark. Code Ann. § 11-9-102(13) (1987) defines “healing period” as that period necessary for healing of an injury resulting from an accident. 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. Moreover, the persistence of pain is not sufficient, in itself, to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
The present claimant suffered a compensable neck injury on June 2, 1993. In September, 1993, Dr. Wilbur Giles performed an anterior cervical diskectomy and fusion, C4-5, C5-6. Dr. Jim J. Moore, a neurosurgeon, felt in August, 1994 that the claimant would not reach the end of his healing period “until the pseudoarthrosis has resolved, either spontaneously or by additional surgery.” The treating surgeon, Dr. Giles, diagnosed “Stable anterior cervical diskectomy and arthrodesis, 4-5 and 5-6 with mature grafts present” in October, 1997. A subsequent MRI showed “solid anterior interbody fusions at the C4-5 and C5-6 levels.” On November 19, 1997, therefore, Dr. Giles diagnosed a “healed fusion” at C4-5, C5-6.
We also note the subsequent impression of Dr. Wolfe, an orthopedist, who examined the claimant in October, 1998. Dr. Wolfe agreed with Dr. Giles’ report that the claimant had achieved “solid fusion” by October, 1997. Dr. Wolfe pronounced maximum medical improvement. In considering the reports of Dr. Moore, Dr. Giles, and Dr. Wolfe, the Full Commission finds that the claimant’s cervical diskectomy and fusion became stable by November 19, 1997, so that the claimant’s healing period from the effects of his compensable injury did not continue beyond that date.
The claimant argues that he has not reached the end of his healing period. The claimant relies on the opinion of a general practitioner, Dr. Asbury, who examined the claimant on one occasion and stated in September, 1998, “It is therefore my belief that he remains within a healing period.” The Commission has the duty of weighing medical evidence as it does any other evidence. If the evidence conflicts, resolution of the conflict is a question of fact for the Commission.Farmer’s Insurance Co. v. Buchheit, 21 Ark. App. 7, 727 S.W.2d 391
(1987). In the present matter, the reports of two neurosurgeons and an orthopedist indicate that the claimant’s cervical fusions healed no later than November 19, 1997. We decline to attach greater weight to the lone opinion of Dr. Asbury. In reviewing his September, 1998 correspondence, we also note that Dr. Asbury has confused “healing period,” that is, whether the claimant’s underlying condition from the effects of his compensable injury has become stable, with “incapacity to earn wages.”
After de novo review, the Full Commission finds from a preponderance of the evidence that the claimant’s healing period ended no later than November 19, 1997. An employee is not entitled to temporary total disability compensation after the end of his healing period. Trader v.Single Source Transportation, Full Workers’ Compensation Commission, Feb. 12, 1999 (E507484). Therefore, we need not discuss whether the claimant proved that he was totally incapacitated to earn wages after November 19, 1997.
B. Temporary Total Disability From January 18, 2000 through February 25, 2000 — Controversion
The respondents generally controverted payment of temporary total disability compensation after November 19, 1997. Hearing before the Commission was held on March 21, 2000. At that time, the claimant’s attorney stated that the respondents had agreed in writing that they would pay temporary total disability from January 18, 2000 through February 25, 2000, while the claimant received outpatient treatment at HealthSouth. The respondents had not tendered payment as of the hearing date. The respondents implicitly agreed that they had sent such a letter, but the respondents would not stipulate that they had controverted this period of temporary disability. See, Transcript, p. et seq.
The administrative law judge found that the claimant was entitled to this period of temporary disability, and that the respondents had controverted same:
Although the respondents concede that the claimant was entitled to benefits for temporary total disability while receiving therapy as directed by Dr. Schroeder from January 18 to
February 25, 2000, benefits had not been paid at the time of the hearing. Mere failure to pay benefits does not amount to controversion necessarily, especially where the respondents are attempting to investigate the claim.
However, here, there is no indication that the respondents were attempting to determine whether the claimant was entitled to temporary total disability benefits while undergoing treatment as directed by Dr. Schroeder. Under these circumstances, the benefits have been controverted and the claimant’s attorney is entitled to the appropriate fee.
Whether a claim is controverted must be determined from the circumstances of each particular case. Buckner v. Sparks RegionalMedical Center, 32 Ark. App. 5, 794 S.W.2d 623 (1990). The claimant must prove controversion by a preponderance of the evidence. Walter v.Southwestern Bell, 17 Ark. App. 43, 702 S.W.2d 822 (1986). The preponderance of evidence in the present matter shows that the respondents agreed to pay temporary total disability compensation from January 18, 2000 to February 25, 2000. We find that the respondents are bound by their prehearing agreement to pay this period of compensation. However, the respondents, without explanation, had not paid this agreed period of temporary total disability as of the hearing on March 21, 2000. The respondents now contend for the first time in their briefs on appeal that the claimant is not entitled to temporary total disability compensation from January 18, 2000 to February 25, 2000. Whether vel non the respondents had controverted payment of temporary total disability as of the hearing date, it is clear that the respondents have now in fact controverted the claimant’s entitlement to same in their briefs on appeal. The Full Commission declines to nullify the respondents’ voluntary pre-hearing agreement that they would pay temporary total disability compensation from January 18, 2000 to February 25, 2000. We therefore affirm the administrative law judge’s finding that the respondents have controverted payment of temporary total disability from January 18, 2000 until February 25, 2000, for which the claimant’s attorney is entitled to the maximum attorney’s fee.
C. REASONABLE AND NECESSARY MEDICAL TREATMENT
The administrative law judge found that the claimant’s treatment at the emergency room of Sparks Regional Medical Center in Fort Smith was reasonably necessary for the compensable injury. The administrative law judge also found that the claimant’s treatment by Dr. Dale Asbury was authorized and reasonably necessary for the claimant’s compensable injury and related symptoms. We affirm these findings.
The claimant correctly states on appeal that Dr. Giles released him in 1998 and referred the claimant to his local family physician. The claimant testified that Dr. Asbury was his family doctor. The record includes a prehearing order filed June 24, 1998, which states that “the claimant’s authorized treating physician is his family physician, Dr. Dale E. Asbury, but only for such medical care as may be reasonably necessary for his compensable injury.” CX 1, p. 44. According to the claimant, then “The real issue is whether Dr. Asbury’s treatment of the Claimant was reasonable and necessary.” With regard to his emergency treatment at Sparks Regional, the claimant states, “The Respondents cannot control authorization of medical during a controverted period.” The record indicates that the claimant indeed sought treatment at Sparks Regional in 1996-97, while the respondents were appealing to the Court of Appeals the Commission’s award of reasonable and necessary medical treatment. The change of physician rules do not apply during this controverted period. See, Clements v. Shoney’s, Full Workers’ Compensation Commission, Feb. 12, 1998 (E604632).
The Full Commission affirms the administrative law judge’s determination that the claimant’s emergency treatment at Sparks Regional Medical Center was reasonable and necessary. The claimant began treated at Sparks Regional from November, 1996 through September, 1997, basically for “acute and chronic neck pain.” Although the claimant also complained of headaches and elbow and knee pain during this time, the record indicates that treatment for his neck was reasonable, necessary, and related to the compensable cervical injury. A prehearing order filed with the Commission clearly lists Dr. Asbury as an authorized treating physician. Medical treatment intended to reduce or enable an injured worker to cope with chronic pain may constitute reasonably necessary medical treatment. Chronister v. Lavaca Vault, Full Workers’ Compensation Commission, June 20, 1991 (D704562). The Full Commission recognizes that we have determined that the claimant’s healing period ended in November, 1997. Nevertheless, the Commission can award medical treatment for continued pain even after the end of the employee’s healing period.Georgia-Pacific Corp. v. Dickens, 58 Ark. App. 266, 950 S.W.2d 463
(1997).
III. CONCLUSION
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge’s finding that the respondents have controverted payment of temporary total disability compensation from January 18, 2000 until February 25, 2000, and we find that the respondents are bound by their prehearing agreement to pay the claimant this period of compensation. We also affirm the administrative law judge’s finding that treatment provided by Dr. Asbury was authorized, reasonable, and necessary, as was the claimant’s treatment at the Sparks Regional Medical Center Emergency Room. However, the Full Commission reverses the administrative law judge’s finding that the claimant remained in his healing period after November 19, 1997. We therefore reverse the administrative law judge’s finding that the claimant is entitled to additional benefits for temporary total disability after November 19, 1997, except as noted 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 in part 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
(Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
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 finding that the claimant failed to prove by a preponderance of the evidence that he remained in his healing period and was totally incapacitated to earn wages from November 19, 1997, until a date to be determined. However, I respectfully dissent from the majority’s finding that the respondents are bound by their agreement to pay the claimant additional temporary total disability benefits from January 18, 2000, until February 25, 2000, and a finding that the claimant’s treatment provided by Dr. Dale Asbury was authorized, reasonable, and necessary medical treatment. In addition, I dissent from the majority’s finding that the claimant’s treatment at the Sparks Regional Medical Center Emergency Room was authorized, reasonable, and necessary medical treatment.
In my opinion, the claimant has failed to show that the medical treatment he received from Dr. Asbury and from the Sparks Regional Medical Center Emergency Room was authorized, reasonable, or necessary. The respondent has at all times authorized reasonable and necessary medical treatment for the claimant. After the claimant moved to Fort Smith, the claimant was specifically authorized to see the doctors at ProMed Clinic should he need any additional treatment for his compensable injury. However, on his own, the claimant sought medical treatment at the Sparks Emergency Room and from Dr. Asbury. These visits to the emergency room and to Dr. Asbury were never authorized by the respondent. Further, the claimant never made a valid request for a change of physician, nor did he seek approval from the Commission.
I also find that the respondent did not controvert temporary total disability benefits for the period that the claimant was undergoing work hardening. No evidence was submitted that indicated that the respondents controverted the payment of these benefits.
Therefore, for all the reasons set forth herein, I respectfully concur in part and dissent in part from the majority’s opinion.
______________________________ MIKE WILSON, Commissioner
CONCURRING AND DISSENTING OPINION
I concur with the findings in the principal opinion that claimant is entitled to benefits for temporary total disability from January 18 to February 25, 2000, and that respondent controverted claimant’s entitlement to these benefits; that the treatment provided by Dr. Asbury was authorized as well as reasonable and necessary; and that the treatment claimant received at Sparks Regional Medical Center emergency room was reasonable and necessary. However, I must respectfully dissent from the finding that claimant’s healing period, and thus his entitlement to benefits for temporary total disability, ended no later than November 19, 1997.
I believe the greater weight of the evidence indicates that claimant remained within his healing period subsequent to November 19, 1997. Even though an MRI scan revealed solid fusions at C4-5 and C6-7, there were additional problems above and below those levels, i.e., secondary spondylosis with radiculitis at C6-7. Dr. Giles opined that if a work hardening rehabilitative program was unsuccessful, claimant might need a diskectomy and arthrodesis at C6-7. Eventually, claimant received therapy by, and at the direction of, Dr. Schroeder in January and February of 2000. Thus, in my opinion, there was treatment that could have improved claimant’s condition.
Several of respondent’s arguments are untenable at best. First, respondent, in effect, promised claimant it would pay temporary total disability benefits while he received the therapy ordered by Dr. Shroeder. As of the date of the hearing (March 21, 2000), and apparently even as of today’s date, respondent has not paid these benefits to claimant. Respondent, for the first time on appeal, alleges that claimant is not entitled to these benefits and has the audacity to argue against a finding of controversion.
Second, in spite of a prehearing order designating Dr. Asbury as claimant’s treating physician, respondent continues to allege that such treatment is not only unreasonable and unnecessary, but unauthorized as well.
Finally, if the above situations are not egregious enough, consider respondent’s argument that the treatment claimant received at Sparks Regional Medical Center was unauthorized because claimant did not first obtain respondent’s permission to seek treatment there. Amazingly, this treatment was received during the period of time respondent was controverting claimant’s entitlement to reasonably necessary medical treatment, lost the adjudication of this issue at the ALJ and Full Commission levels, and unsuccessfully pursued appeals to both the Arkansas Court of Appeals and the Arkansas Supreme Court. Simply put, respondent cannot controvert claimant’s entitlement to medical treatment, and then insist that claimant receive treatment from a physician it chooses.
For the foregoing reasons, I concur in part and respectfully dissent in part.
______________________________ SHELBY W. TURNER, Commissioner