CLAIM NO. F905875
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 3, 2011
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Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant appeared pro se.
Respondent represented by HONORABLE BETTY J. HARDY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed and Dismissed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge filed August 6, 2010, finding that the claimant was entitled to medical treatment and temporary total disability benefits. Based upon our de novo review of the record, we find that the claimant has failed to meet her burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondents employer as a special needs teacher’s aide. On February 6, 2009, the claimant was attacked by a special needs student. The respondents sent the claimant to Dr. James Russell who
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evaluated and treated her. Dr. Russell released the claimant from treatment on February 9, 2009. The claimant was unhappy with Dr. Russell’s treatment and contacted Faye Ross, the claims representative, and asked if she could see another doctor. The claimant had already been provided a Form N, and she could not remember if the information was on the back. Ms. Ross told the claimant that she would need to request a change of physician. The claimant spoke to Ms. Ross on February 10 and February 11, and she was told that Dr. Russell had released her to return to work. The claimant faxed a Change of Physician to the Commission on February 10, 2009. The claimant did not wait for the change of physician to be granted but, instead, went to her family physician, Dr. Andrews-Pirtle on February 12, 2009.
When a claimant desires a change of physician, she must petition the Commission for approval. Sharp v. Lewis Ford, Inc., 78 Ark. App. 164, 78 S.W.3d 746 (2002). Pursuant to the provisions of Act 1167 of 1999, there is an absolute, statutory right to a one-time change of physician. See Ark. Code Ann. § 11-514(a)(3); Collins v. Lennox Industries,Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002). Treatment or services furnished or prescribed by any physician other than
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the ones selected according to the provisions of Ark. Code Ann. § 11-9-514(a)(3), except emergency treatment, shall be at the claimant’s expense. See, Ark. Code Ann. § 11-9-514(b). Thus, a mere petition is not sufficient to establish a change of physician as the Commission must ensure that the selected physician complies with the provision of Ark. Code Ann. § 11-9-514(a)(3) prior to issuing a Change of Physician Order. However, the Court of Appeals has held that where the claimant has exercised his/her absolute, statutory right to a one-time change of physician pursuant to Ark. Code Ann. § 11-9-514(a)(3)(A)(ii), the respondents must pay for the initial visit to the new physician in order to fulfill their obligation to provide adequate medical services under the provisions of Ark. Code Ann. § 11-9-508. Wal-Mart Stores,Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).
Under Arkansas law, the claimant is entitled to a one-time change of physician and is entitled to be examined by that physician. However, the respondents are not obligated to honor the request for a change of physician until the Commission has issued an order granting the request. Ark. Code Ann. § 11-9-514. Moreover, the claimant still has to prove that any additional treatment sought is reasonable and necessary medical treatment.
The Full Commission has held on more than one
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occasion that once an injured worker has filed a request for a change of physician with the Commission, and then seeks treatment from a new physician that the claimant wishes to change to, the claimant does so at her own financial risk. The Commission no longer has the discretion to hold the respondents liable for any treatment rendered by the physician selected by the claimant beginning on the date that the petition was filed. Ark. Code Ann. § 11-9-514(b).
It is apparent that the claimant is not entitled to have medical treatment provided by Dr. Andrews-Pirtle paid by the respondents. The claimant sent a change of physician request to the Commission on February 10, 2009. She did not receive the granted change of physician until sometime in April. The claimant testified that she “took this on myself” and she had insurance and was “gonna go ahead and go to the doctor myself.” The claimant admitted on cross-examination that she knew that if she wanted it to be paid through the Workers’ Comp system that she would need a change of physician. When the claimant sought treatment from Dr. Andrews Pirtle, she presented her insurance card. Moreover, the claimant was fully apprized of the change of physician rules through the Form N, her contact with the claims representative, and through the Commission. However,
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the claimant sought treatment on her own from her family physician.
The evidence also demonstrates that the claimant had been provided all appropriate benefits for her work-related injury. The claimant was seen by Dr. James Russell who evaluated and treated her and released her to return to work on February 9, 2009. Therefore, we find that the claimant is not entitled to any additional benefits in the form of medical treatment or of temporary total disability benefits.
IT IS SO ORDERED.
_____________________________________ A. WATSON BELL, Chairman
_____________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
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DISSENTING OPINION
I must respectfully dissent from the majority opinion, which incorrectly assumes that the Change of Physician rules apply to this claim. After a de novo review of the record, I find that the respondent’s provided a defective Form N; therefore, the Change of Physician rules do not apply, and I must respectfully dissent from the majority opinion.
Ark. Code Ann. § 11-9-514, Medical services and supplies — Change of Physician, provides, in pertinent part:
(c)(1) After being notified of an injury, the employer or insurance carrier shall deliver to the employee, in person or by certified or registered mail, return receipt requested, a copy of a notice, approved or prescribed by the commission, which explains the employee’s rights and responsibilities concerning change of physician.
(2) If, after notice of injury, the employee is not furnished a copy of the notice, the change of physician rules do not apply.
The Form AR-N is a two-sided document with the front side providing identifying information regarding the parties, as
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well as a description of the injury, along with time and place of occurrence. The back side of the document provides information regarding “the employee’s rights and responsibilities concerning change of physician.” The copy of the Form AR-N provided to the claimant contained only the front side of the form. As a consequence of the respondent’s failure to provide the entire Form AR-N to the claimant, as mandated by statute, the change of physician rules were not applicable.
While the claimant was seen by the respondent’s physician, Dr. James Russell on two occasions, she became dissatisfied with her medical treatment under his care. The clinic notes of Dr. Russell reflect that x-rays were not obtained during either of his visits with the claimant. The claimant’s final visit with Dr. Russell occurred on Monday, February 9, 2009. It is not disputed that the claimant was in contact with the claim specialist, Faye Ross, regarding her injury and discontentment with the medical care of Dr. Russell. On February 10, 2009, the claimant faxed a request for a change of physician to the Arkansas Workers’ Compensation Commission. Unfortunately, the request failed to reach appropriate parties.
On Thursday, February 12, 2009, the claimant was
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seen by her family physician, Dr. Valencia Andrews-Pirtle, in connection with the treatment of her February 6, 2009, compensable injury. While under the care of Dr. Pirtle, the claimant underwent diagnostic studies, was prescribed medication, and physical therapy. Further, the claimant was directed to remain off work by Dr. Pirtle until February 18, 2009.
Ark. Code Ann. § 11-9-508(a) (Repl. 2002), mandates that the employer promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). Reasonably necessary medical services may include that necessary to accurately diagnose the nature and extent of the compensable injury; to reduce or alleviate symptoms resulting from the compensable injury; to maintain the level of healing achieved; or to prevent further deterioration of the damage produced by the compensable injury. Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2002); Jordan v.Tyson Food, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
The evidence clearly shows that the medical treatment rendered to the claimant under the care of Dr. Pirtle
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was reasonably necessary in connection with the treatment of the claimant’s February 6, 2009 compensable injury. Since the respondent failed to provide the claimant with a notice which explained her rights and responsibilities concerning change of physician, in accordance with Ark. Code Ann. § 11-9-514(c)(1)(2), the change of physician rules do not apply, and the respondent is liable to the claimant for the reasonably necessary medical treatment provided to the claimant by Dr. Pirtle.
For the aforementioned reasons, I must respectfully dissent.
___________________________________ PHILIP A. HOOD, Commissioner
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