CLAIM NO. F005245
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 18, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by HONORABLE BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
ORDER
The claimant appeals an opinion and order filed by the Administrative Law Judge on July 12, 2002. In that opinion and order, the Administrative Law Judge found in relevant part that the claimant failed to prove by a preponderance of the evidence that any medical treatment that he received subsequent to March of 1999 was provided by an authorized treating physician. In addition, the Administrative Law Judge found that the claimant has failed to prove by a preponderance of the evidence that he remained within his healing period and was totally incapacitated from working for any period between March 1, 1999 and the date of the hearing held on June 5, 2002.
With regard to the Administrative Law Judge’s medical treatment finding, we note that the Administrative Law Judge’s Prehearing Order and the respondent’s attorney’s verbal restatement of contentions on page 6 of the hearing transcript, both indicate that the respondent’s sole relevant contention was that the additional medical benefits at issue were not reasonable or necessary, or causally related to the injury that the claimant sustained in February of 1999. In other words, as the claimant’s attorney points out on appeal, at no point in the prehearing conference or while stating contentions at the start of the hearing did the respondent, through its attorney, ever assert any argument that the claimant failed to follow the change of physician rules contained in Ark. Code Ann. § 11-9-514, nor did the respondent ever assert that the medical treatment at issue that the claimant underwent in Mississippi was “unauthorized” pursuant to those change of physician rules. Instead, our de novo review of the record indicates that the Administrative Law Judge raised this issue solely on her own, apparently at some point after the hearing in this case and either prior to or during the course of drafting her opinion and order filed on July 12, 2002. The dissent’s argument notwithstanding, a majority of the Full Commission has previously interpreted, and we again interpret, that any issue regarding the change of physician rules under Ark. Code Ann. § 11-9-514
involves a separate body of law and is not within the scope of a contention raised that medical treatment at issue was not reasonably necessary or causally related to a work-related injury. Because we find that the Administrative Law Judge improperly raised change of physician on her own initiative at some point after the hearing in this case, we vacate the Administrative Law Judge’s findings that the claimant has failed to establish that the medical treatment that he sought in Mississippi subsequent to March of 1999 was by an authorized treating physician, and we vacate the Administrative Law Judge’s finding that the claimant remains solely responsible for all medical treatment he pursued after March of 1999.
We likewise vacate the Administrative Law Judge’s conclusory finding that the claimant has failed to establish that he is entitled to any period of temporary disability compensation between March 1, 1999 and the date of the hearing held on June 5, 2002. Whatever the Administrative Law Judge may ultimately conclude about other periods of potential disability in this case, we point out that the Administrative Law Judge’s analysis on temporary total disability in her July 12, 2002 opinion and order makes no reference to the evidence that the claimant underwent a two-level discectomy surgery on March 23, 2001 and that Dr. Chiou’s reports thereafter do not appear to even consider releasing the claimant to light-duty work until April 30, 2001.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we remand this case to the Administrative Law Judge to first determine what portion, if any, of the claimant’s medical treatment received after March of 1999 was reasonably necessary for and causally related to the work-related injury that he sustained on February 8, 1999. The Administrative Law Judge is also then directed to determine precisely which periods, if any, that the claimant remained within his healing period for his February 8, 1999 work-related injury, and which periods, if any, that the claimant remained totally or partially incapacitated from working between March 8, 1999 and June 5, 2002.
The claimant’s attorney is hereby awarded an attorney’s fee in the amount of $250 pursuant to Ark. Code Ann. § 11-9-715(b)(1). See Belcher v. Holiday Inn, 50 Ark. App. 148, 900 S.W.2d 215 (1995); Crow v. Weyerhaeuser Co., 41 Ark. App. 225, 852 S.W.2d 334 (1993).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I must respectfully dissent from the majority’s opinion finding that the Administrative Law Judge improperly raised the change of physician issue and remanding this case to the Administrative Law Judge for a determination of which medical treatment was reasonable and necessary. The majority opinion, as it has in previous cases, states that any issues involving the change of physician rules is a separate and distinct body of law and that findings with respect to reasonable and necessary medical treatment are not proper. It is my opinion that these two issues are not
separate and distinct, but intertwined within the Arkansas Statutes.
My interpretation of Collins v. Lennox Industries, Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002) and the applicable statutes require the claimant to prove that additional medical treatment is reasonable and necessary when there is a change of physician issue.
Ark. Code Ann. § 11-9-704(c)(3) specifically provides:
Administrative law judges, the commission, and any reviewing courts shall construe the provision of this chapter strictly.
In construing these requirements in section 514, I recognize that the basic rule of statutory construction requires one to give effect to the intent of the legislature. Kildow v. Baldwin Piano Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2000) states that we are to construe the workers’ compensation statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed. Edens v. Superior Marble Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). The doctrine of strict construction is to use the plain meaning of the language employed Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Where the language of a statute is unambiguous, legislative intent can be determined from the ordinary meaning of the language used. Leathers v. Cotton, 332 Ark. 49, 52, 961 S.W.2d 32, 34 (1998). In considering the meaning of a statute, we are to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute, if possible.
Under the present law, a claimant may petition for a change of physician, and the change “shall” be granted if the proper evidence is established regarding the new selected doctor. In Collins, the Court found that a one-time change was mandatory. However, the change of physician section of the statutes only addresses whether the physician from whom the claimant seeks treatment will be an “authorized” treating physician. The change of physician section does not address whether the respondent must pay for the treatment rendered by the new doctor. My review of the change of physician statute fails to reveal any provision, expressed or implied, which addresses the respondent’s responsibility for payment of medical services. Ark. Code Ann. § 11-9-514 only addresses authorized physicians and the process for changing authorized treating physicians.
Ark. Code Ann. § 11-9-508 sets forth the employer’s liability for medical services. This section provides, in pertinent part:
(a)(T)he employer shall promptly provide for an injured employee such medical services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.
Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees’ injuries DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The treatment sought must be for reasonably necessary medical treatment in connection with the compensable injury in order for the respondent to be liable for payment of the treatment.
When these two statutes are read in conjunction with one another and strictly construed, I find that the treatment sought from the new authorized physician must be for reasonably necessary medical treatment.
Therefore, I must respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner