GEORGE v. ALLEN TILLERY CHEVROLET, 1996 AWCC 48

CLAIM NO. E504647

JAY GEORGE, EMPLOYEE, CLAIMANT v. ALLEN TILLERY CHEVROLET, EMPLOYER, RESPONDENT and SISCO, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 1, 1996

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE RICHARD MUSE, Attorney at Law, Hot Springs, Arkansas.

Respondents represented by the HONORABLE WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on September 25, 1995. In that opinion and order, the administrative law judge found that the claimant is entitled to reasonably necessary treatment from Dr. Gary Meek, including any additional diagnostic testing and valid referrals which are reasonably necessary for treatment of the claimant’s compensable injury. In this regard, we find that the administrative law judge’s decision must be affirmed. The administrative law judge also reserved the claimant’s request for a change of physician to a neurosurgeon. However, we find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to a change of physician to a neurosurgeon. Accordingly, we find that the administrative law judge’s decision in this regard must be set aside.

[3] The claimant sustained an admittedly compensable injury on Tuesday, March 7, 1995, while rotating an automobile engine on an engine stand in the respondents’ service department. The claimant testified that, as he was rotating the engine upside down, his right hand caught on the engine, causing a twisting sensation in his neck as the engine abruptly stopped spinning. According to the claimant, he didn’t experience any immediate pain, but developed progressively more severe pain in the neck beginning that night. After working the remainder of the week, the claimant presented to a hospital emergency room the following Saturday with flu symptoms and neck pain.

[4] The claimant notified his supervisor of the injury on Wednesday, March 8, 1995, and the respondents referred the claimant to Dr. George Meek, a general surgeon, for medical treatment on Monday, March 13, 1995. Dr. Meek ordered x-rays, which were normal, and prescribed pain medication and physical therapy. The claimant testified that he received no benefit from pain medication and only short-term benefit from the physical therapy.

[5] Dr. Meek’s office contacted the respondent employer regarding a referral to a neurologist or neurosurgeon after an inquiry from the claimant’s wife. The respondent employer initially indicated that Dr. Meek had the authority to select an appropriate specialist, and Dr. Meek’s office scheduled an appointment with Dr. James Arthur in Hot Springs. However, the respondent carrier later notified Dr. Meek that the respondents would schedule a specialist, and the claimant was referred to Dr. Tom Fletcher, a neurosurgeon in Little Rock, on March 21, 1995. At that time, Dr. Fletcher apparently noted muscle spasm in the neck region. However, a cervical MRI was negative for disc herniation and nerve root compression, and Dr. Fletcher diagnosed a cervical strain/sprain type injury requiring only conservative treatment. The claimant returned to Dr. Meek for follow-up care complaining of persistent neck pain. Dr. Meek continued to treat the claimant with pain medication and physical therapy, and ordered a cervical myelogram on April 21, 1995, which was negative for bulging discs, nerve root compression or canal stenosis.

[6] When the claimant’s condition failed to improve, Dr. Meek contacted the respondents requesting authorization for an additional evaluation by a specialist, and the respondent carrier scheduled a second appointment for the claimant with Dr. Fletcher for May 20, 1995. Dr. Fletcher’s physical examination at that time indicated that the claimant’s prior muscle spasms had resolved. He also found good range of motion in the neck, with no muscle atrophy, no motor weaknesses, and no local tenderness over the spinous processes. Dr. Fletcher affirmed his prior diagnosis of a cervical strain/sprain, and opined that, despite the claimant’s inability to detect a change in his reportedly persistent neck and shoulder pain, “his problem is improving”. Dr. Fletcher’s letter to Dr. Meek dated June 5, 1995, also opined that the claimant’s neck injury would resolve with continued exercises and increased activity. The respondent carrier received a copy of Dr. Fletcher’s letter on June 6, 1995, and notified Dr. Meek’s office that the respondents were terminating the claimant’s medical benefits, including any additional treatment provided by Dr. Meek, as of June 6, 1995.

[7] The claimant testified at the hearing conducted on September 11, 1995, that he continues to experience persistent neck and shoulder pain. He also testified that he currently experiences headaches, blurred vision, and has developed numbness in the third and fourth fingers of the right hand. In addition, the claimant testified that he recently developed a knot on his spine which he contends has exacerbated his symptoms. Moreover, the claimant testified that his compensable injury has not resolved, and that he desires additional medical treatment from a neurosurgeon, preferably Dr. Richard Peek. The Arkansas Workers’ Compensation Law requires an employer to provide such medical treatment as may be reasonably necessary for the treatment of a work-related injury received by an employee. Ark. Code Ann. §11-9-508 (a) (Cumm. Supp. 1995). Where the employer makes the initial selection of a physician, a claimant may petition the Commission once for a change of physician. Ark. Code Ann. §11-9-514 (a)(2) (Cumm. Supp. 1995). The statute provides the following:

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 the recommendation of claimant or respondent. . . .

[8] However, a change of physician, even where the employer makes the initial selection, will not be automatically granted merely because the claimant requests the change.

[9] Even though a claimant is not required to establish a compelling reason or circumstance to justify a first change of physician if the employer makes the initial choice, the Commission must review each request to assure that the change is justified. The Legislature’s use of the phrase “. . . if the commission approves the change. . .” (emphasis added) clearly contemplates that the Commission will retain discretion to review petitions for physician changes on their merits and to approve or disapprove such changes.

[10] In the present claim, we find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to a change of physician to a neurosurgeon. As discussed, cervical x-rays, a MRI, a myelogram and clinical examinations indicate that the claimant sustained a relatively minor injury, and Dr. Tom Fletcher, a neurosurgeon, has diagnosed the claimant with a cervical sprain/strain type injury. Moreover, we find that a preponderance of the evidence shows that Dr. Meek was providing the claimant appropriate conservative care that was consistent with Dr. Fletcher’s diagnosis and recommendations, prior to the respondents’ termination of medical benefits, and we note that the claimant testified that he was prepared to continue receiving treatment from Dr. Meek if the respondents had not terminated medical benefits.

[11] In short, the claimant’s clinical and diagnostic test results indicate that the claimant has sustained a relatively minor injury. In addition, the preponderance of the evidence shows that the claimant received proper medical care for the treatment of his compensable injury from Dr. Meek and that Dr. Meek is capable of continuing to provide treatment that is reasonably necessary for treatment of the compensable injury. Therefore, we find that additional medical treatment from a neurosurgeon is not reasonably necessary for treatment of the claimant’s compensable injury at this time. Accordingly, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to a change of physician, and we find that the administrative law judge’s reservation of the claimant’s request for a change of physician must be set aside.

[12] However, we do find that the claimant is entitled to continued reasonably necessary medical treatment from Dr. Meek. In this regard, the claimant testified that he continues to experience persistent symptoms. In addition, the reports of both Dr. Fletcher and Dr. Meek indicate that the claimant had not reached maximum improvement at the time he stopped getting medical treatment due to the respondents’ termination of medical benefits on June 6, 1995. In that regard, Dr. Fletcher’s letter to Dr. Meek dated June 5, 1995, states that the claimant’s condition was improving, and he recommended continued exercise and increased activity as treatment to resolve the claimant’s injury. In addition, Dr. Meek’s letter to the respondent carrier dated May 9, 1995, opines that the claimant remained in significant pain and required additional evaluation. Thus, based on the records of Dr. Fletcher and Dr. Meek, as well as the claimant’s testimony and all other evidence properly before us, we find that the claimant remains in need of reasonably necessary medical treatment, and we find that the claimant is entitled to return to Dr. Meek for any additional medical care that is reasonably necessary for treatment of the claimant’s compensable injury.

[13] In summary, we find that the claimant is entitled to reasonably necessary treatment by Dr. Meek, including any additional diagnostic testing and valid referrals which are reasonably necessary for treatment of the claimant’s compensable injury. Therefore, in this regard, we find that the administrative law judge’s decision must be affirmed. However, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to a change of physician to a neurosurgeon. Accordingly, we find that the administrative law judge’s reservation of the claimant’s request for a change of physician must be set aside, and we find that the claimant’s request for a change of physician must be, and hereby is, denied.

[14] 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 (1987). 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 (b) (1987).

[15] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman

[16] Commissioner Holcomb concurs.

[17] Commissioner Humphrey dissents.