CLAIM NO. F810448
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 6, 2010
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by the HONORABLE JARROD S. PARRISH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed May 26, 2009. The administrative law judge found that a claimant’s “request for a change to multiple doctors does not violate the provisions of Ark. Code Ann. § 11-9-514.” After reviewing the entire record de novo, the Full Commission reverses the administrative law judge’s opinion. The Full Commission finds that the claimant has been granted his one-time change of physician. Ark. Code Ann. § 11-9-514 does not allow requests for “change to multiple doctors.”
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I. HISTORY
The parties stipulated that the claimant sustained a compensable injury to his neck and left wrist on November 10, 2007. The claimant signed a Form AR-N, Employee’s Notice Of Injury, on November 19, 2007. The claimant reported that he had tripped over a pallet and injured his left hand and neck. A Form AR-3, Physician’s Report, dated November 19, 2007, appeared to indicate that the claimant was diagnosed with acute right cervico-thoracic strain, acute contusion of the left chest, post-traumatic left medial epicondylitis, and acute strain and contusion in the left hand.
Dr. David A. Sitzes reported on November 29, 2007:
Mr. Kelley returned to Mercy Convenient Care and Business Health Clinic as directed for recheck. Pain relating to his right cervicothoracic strain was rated as intermittent and 7 out of 10. However, despite this rating he does state that the pain is improved. Pains of his left anterior chest, left medial elbow and left wrist are also improved. He does feel he has benefited from the use of a wrist immobilizer with work, drinking, and sleep. He continues to experience intermittent paresthesias now involving the thumb, index and long fingers of his left hand. These are increased at night. He has a known prior history of carpal tunnel disease. . . .
The examination reveals continued tenderness of the right lateral cervical spine with pain only on full extension and this is definite improvement. There is no upper trapezius tenderness. Tenderness of the left chest and left medial epicondyle are also improved. There is no sensory loss to his left hand to fine touch testing and only a mildly positive Tinel’s involving the left wrist. There is anterior and posterior tenderness reproduced only on full flexion and extension at his left wrist. . . .
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Dr. Sitzes recommended continued conservative treatment modalities. Dr. Sitzes reported on December 5, 2007, “Johnnie Kelley returned to Mercy Convenient Care and Business Health Clinic for recheck as directed of his acute right cervicothoracic strain, and strain and contusion of his left wrist. The symptoms of his left anterior chest and medial epicondyle have resolved. However, he continues to complain of constant and persistent right posterolateral neck and superior trapezius region pain rated as 10 out of 10 on the 1 to 10 pain scale every morning and as 8 out of 10 later in the day. He also reports predominant left wrist pain rated as 4 out of 10. . . . I recommend that he begin a course of physical therapy with particular attention to his cervical strain as well as his left wrist. . . .”
Dr. Sitzes noted on December 26, 2007, “To this point he has continued to be somewhat noncompliant and self directing in regards to the home use of physical modalities. Mr. Kelley has not yet begun the physical therapy which we have previously ordered. . . . Mr. Kelley may return to work on 12/26/07 with no restrictions. I request that he return for recheck in two weeks.”
The claimant began participating in physical therapy and continued to follow up with Dr. Sitzes. Dr. Sitzes reported on February 13, 2008:
Johnnie Kelley returned to Mercy Convenient Care and Business Health Clinic as directed for recheck of his acute right cervicothoracic strain and left wrist sprain. These pains have now completely resolved and examination is within normal limits. Mr. Kelley may return to work on 02/13/08 with no restrictions. No medications are recommended and his physical therapy is canceled. Mr. Kelley is discharged from our care at this time
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having suffered no permanent impairment due to his work related injury.
The record indicates that the claimant signed two separate Forms AR-C, Claim For Compensation, on or about October 8, 2008. The claimant contended on the Forms that he was entitled to additional benefits including additional medical expenses. On one Form AR-C the claimant contended that he had injured his left hand while loading boxes. On the other Form AR-C the claimant contended that he had injured his neck while loading boxes.
The claimant’s attorney corresponded with a representative of the Commission on October 15, 2008:
Enclosed please find a Pre-hearing Information Sheet, a Preliminary Notice, and an AR-C for the above-referenced claimant for a November 10, 2007 injury to his neck. Please forward this file to the clerk’s office for a change of physician from Dr. David Sitzes to Dr. Tony Raben. Following an order of Change of Physician, please have this assigned to a law judge for our hearing request. . . .
Pat Capps Hannah, Administrator of the Commission’s Medical Cost Containment Division, signed a Change of Physician Order on November 20, 2008: “A change of physician is hereby approved by the Arkansas Workers’ Compensation Commission for Johnnie Kelley to change from Dr. David Sitzes to Dr. James Kelly[.] . . . This approval of a change of physician represents claimant’s one time only change of physician pursuant to Ark. Code Ann. § 11-9-514(a)(3)(A)(ii) (Repl. 2002). . . . In accord with this statute, Dr. Kelly is a member of the carrier’s certified managed care organization.”
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The parties stipulated that “on November 20, 2008, the claimant was granted a change of physicians from Dr. David Sitzes (an orthopaedic surgeon) to Dr. James Kelly (a plastic surgeon and hand specialist).”
Pat Capps Hannah wrote to the claimant’s attorney on December 2, 2008:
The doctor to whom you requested to change, Dr. Cyril “Tony” Raben, has refused to treat him for his neck injury. Therefore, we cannot approve a change for him to Dr. Raben. Does he want to choose a physician in the respondents’ MCO, First Health, or does he want the Medical Cost Containment nurses to choose one in an appropriate specialty in the First Health MCO and arrange for treatment of his neck with him/her? . . .
Please let us know right away how he wants us to proceed. . . .
The respondents’ attorney informed Pat Capps Hannah on December 5, 2008, “Claimant has been given the option of choosing another doctor for a change of physician. I am writing to let you know Respondents’ object on the basis that Claimant has used his one time change of physician to move his treatment from Dr. Sitzes to Dr. James Kelly.” The claimant’s attorney replied and stated to Ms. Hannah on December 8, 2008, “I had asked for a change of physician on the neck injury associated with this claim. Although there is one accident date, two injuries resulted from that accident therefore, while Mr. Kelly has had a change of physician for his hand injury, he has not had a change of physician for neck injury. If you do not feel that you can allow this change, please explain so that I may ask for a hearing on this matter.”
Pat Capps Hannah corresponded with the respondents’ attorney on December 15, 2008:
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We have received your recent correspondence objecting to the claimant having a change of physician for his neck injury after having a change for his hand injury. While there is only one claim, the claimant suffered injuries to both his neck and hand and the respondents have accepted the compensability of both injuries.
Given the trend toward specialization, a doctor who treats hand injuries, does not treat neck injuries. Therefore, Mr. Kelley will need a change of physician for his neck injury, as well as his hand, because one specialist does not treat both kinds of injuries. We will continue processing his request for a change to a doctor who will treat his neck injury.
The respondents’ attorney replied on December 24, 2008 and stated in part, “I respectfully disagree with your interpretation of the law. I am requesting a hearing before an Administrative Law Judge regarding the claimant’s entitlement to a second change of physician. Please suspend the processing of the change of physician until we get an Order from the Administrative Law Judge indicating that the claimant is in fact entitled to one.”
Dr. James E. Kelly, III corresponded with the respondents on January 30, 2009: “As you are aware, this is a 67 year old Staffmark employee who was injured while in the job. He had a fall, which resulted in a neck strain injury, which, of course, is being dealt with by another physician, and he fell on an outstretched left hand and has had complaints of pain in the wrist since that time. . . . What I have recommended is that he have an MRI of his wrist and I will make arrangements to get this done.”
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A pre-hearing conference was held on February 2, 2009, and a pre-hearing order was filed on May 7, 2009. According to a pre-hearing information sheet, the claimant contended, “On November 10, 2007 the claimant injured his neck when he was loading boxes and tripped on the edge of the wrapping machine and hit his head on the base plate of the machine.” According to their response to pre-hearing questionnaire, the respondents contended that the claimant was “not entitled to a second change of physician in this claim.” The respondents contended that the claimant was “involved in a single accident” on November 10, 2007 and that the claimant “alleged injuries to his left hand and neck as a result of his fall. Claimant was not involved in any other accidents at work that day. . . . Respondents provided appropriate treatment until Claimant was released from care on February 13, 2008. Claimant subsequently filed two separate claim forms (AR-C) for the two body parts (neck and left hand) injured in the accident that occurred on November 10, 2007. . . . Claimant’s surreptitious claim forms caused two separate files to be opened because the various departments at the Commission interpreted the two claim forms to indicate that two separate incidents occurred on November 10, 2007. Claimant’s sole purpose for filing two separate claims when only one work related occurrence took place is to facilitate his efforts to choose two physicians instead of one under Section 11-9-114(a)(2)(A) of the Arkansas Code Annotated. At the request of Respondents’ counsel, the clerk consolidated both claims into claim number F810448. . . . Claimant’s attempt to obtain a second change of physician
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runs contrary to the legislature’s clear intent that injured workers be allowed one opportunity to change to a physician of their choosing.”
The parties agreed to litigate the following issue: “1. The claimant’s entitlement to a change of physicians from Dr. Sitzes to a neck specialist.”
An administrative law judge filed an opinion on May 26, 2009. The administrative law judge found, in pertinent part:
3. On November 10, 2007, the claimant sustained compensable injuries to his neck and left wrist.
4. On October 20, 2008, the claimant sought a change of physicians from Dr. David Sitzes to Dr. James Kelly (for evaluation and treatment of his compensable hand injury) and to Dr. Cyril Raben (for evaluation and treatment of his compensable neck injury). This constituted the claimant’s “one time” petition for a change of physicians. The claimant’s request for a change to multiple doctors does not violate the provisions of Ark. Code Ann. § 11-9-514. Specifically, the requirement that the claimant is limited to petitioning this Commission one time for a change of physicians.
5. The claimant’s one time petition has been partially granted by the Commission, by approving a change to Dr. James Kelly for evaluation and treatment of the claimant’s compensable left wrist/hand injury. The Commission has not completely ruled on the remainder of the claimant’s one time petition (i.e. the change of physicians for his compensable neck injury).
6. The Medical Cost Containment Division of this Commission has been charged with the responsibility for granting a change of physicians, pursuant to Ark. Code Ann. § 11-9-514.
The administrative law judge ordered, “This case is to be returned to the Medical Cost Containment Division for completion of its consideration of the
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claimant’s one time petition for a change of physicians filed on October 20, 2008.”
The respondents appeal to the Full Commission.
II. ADJUDICATION
Ark. Code Ann. § 11-9-514(a)(3)(A) (Repl. 2002) provides:
(i) The employer shall have the right to select the initial primary care physician from among those associated with managed care entities certified by the commission as provided in § 11-9-508.
(ii) Where the employer has contracted with a managed care organization certified by the commission, the claimant employee, however, shall be allowed to change physicians by petitioning the commission one (1) time only for a change of physician to a physician who must either be associated with the managed care entity chosen by the employer or be the regular treating physician of the employee who maintains the employee’s medical records and with whom the employee has a bona fide doctor-patient relationship demonstrated by a history of regular treatment prior to the onset of the compensable injury but only if the primary care physician agrees to refer the employee to the managed care entity chosen by the employer for any specialized treatment, including physical therapy, and only if the primary care physician agrees to comply with all the rules, terms, and conditions regarding services performed by the managed care entity chosen by the employer. . . .
(b) Treatment or services furnished or prescribed by any physician other than the ones selected according to the foregoing, except emergency treatment, shall be at the claimant’s expense.
In the present matter, an administrative law judge found in part, “The claimant’s request for a change to multiple doctors does not violate the provisions of Ark. Code Ann. § 11-9-514.” The Full Commission reverses this finding. Administrative law judges and the Commission must strictly construe the
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provisions of Act 796 of 1993. See Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2002). Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-514(a)(3)(ii), provides a claimant with an absolute one-time right to a change of physician Collins v. Lennox Indus., Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002). There is no authority allowing a claimant to obtain change of physicians to “multiple doctors.” The parties stipulated that the claimant sustained compensable injuries to his left hand and neck on November 10, 2007. Dr. Sitzes treated the claimant for both injuries. Dr. Sitzes released the claimant with no restrictions on February 13, 2008. Beginning about October 8, 2008, the claimant began pursuing entitlement to treat with more than one physician for his neck and arm. The claimant obtained an ordered change of physician to Dr. Kelly, a hand physician, on November 20, 2008. The claimant contends that he should also be entitled to a “one-time change of physician” to another doctor for the claimant’s neck injury.
There is no statutory or appellate authority allowing the claimant to obtain treatment by “multiple doctors” through a change of physician request. The authorized physician in the present case, following the instant claimant’s change of physician request, is Dr. Kelly. If Dr. Kelly believes the claimant is entitled to additional treatment for his neck, then Dr. Kelly can recommend a referral to another physician. If the respondents controvert referral to another physician, then the Commission may determine whether a proposed referral or additional
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treatment would be reasonably necessary in connection with the claimant’s compensable injury.
Based on our de novo review of the entire record, the Full Commission reverses the administrative law judge’s opinion that “The claimant’s request for a change to multiple doctors does not violate the provisions of Ark. Code Ann. § 11-9-514.” The claimant has received his absolute one-time right for a change of physician. The claimant has been granted a change of physician to Dr. Kelley. The claimant is not entitled to another change of physician.
IT IS SO ORDERED.
_________________________ A. WATSON BELL, Chairman
Commissioner McKinney concurs.
CONCURRING OPINION I concur with the Commission’s finding that the claimant is not entitled to another change of physician. It is clear from reading A.C.A. § 11-9-514 that the legislature was mindful of the fact that a claimant may injure multiple parts of his body in a single workers’ compensation accident requiring treatment by physician’s with different specialties by the fact that the change of physician statute recognizes the necessity of referrals ordered by the
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newly changed physician. Under the claimant’s ALJ’s, and dissent’s interpretation of A.C.A. § 11-9-514 each claimant would be entitled to as many change of physician orders as there are multiple body parts injured without one physician overseeing the whole picture and recovery of the claimant. This was not the intent of the change of physician statute, and is contrary to the stated purpose of Act 796 to improve the health care delivery through the use of managed care concepts. See A.C.A. § 11-9-101(B). A.C.A. § 11-9-514 specifically states that a claimant shall be allowed to change physicians by petitioning one time only to a physician who is a member of the respondent’s MCO, or be a physician associated with any MCO, or be the claimant’s regular treating physician. A claimant is allowed only one petition for a change of physician regardless of the number of body parts the claimant has injured. The key word in this statute is “a”. A.C.A. § 11-9-514 specifically states that the claimant shall be permitted to petition for a one time a change of physicians to “a” physician, not “physicians” or “as many physicians as the claimant has injured body parts”. Admittedly, multiple physicians may be required from varying specialities to treat and manage a claimant’s injuries; however, A.C.A. § 11-9-514 envisions this treatment and medical management being coordinated through referrals from one physician, as noted in the provision that a change to the claimant’s primary care physician agree to make referrals within the respondents MCO or any MCO if the respondent has not contracted with a specific MCO. Thus, when more than one body part is injured, A.C.A. § 11-9-514
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allows for a change of physician to a physician to manage and treat all the injuries through referrals to specialists while retaining one physician to oversee the treatment of the whole patient.
Accordingly, I find that the decision of the Administrative Law Judge must be reversed. The claimant has received his one time change of physicians from Dr. Sitze to Dr. Kelley for the treatment of his hand/wrist injury. All additional treatment must now be managed through referrals from Dr. Kelley.
_______________________________ KAREN H McKINNEY, Commissioner
Commissioner Hood dissents.
DISSENTING OPINION I must respectfully dissent from the majority opinion. In interpreting the provisions of Ark. Code Ann. § 11-9-514, the mandate of “strict construction” applies. Under the rules of strict construction, nothing is to be taken to be intended that is not clearly expressed and the language employed is to be given its plain meaning, American Standard Travelers Indemnity Company v.Post, 78 Ark. App. 79, 77 S.W.3d 554 (2002); Death andPermanent Disability Trust Fund v. Rodriguez, CA 08-842 (Ark. App. 2-11-09).
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In the present case, the applicable provisions of Ark. Code Ann. § 11-9-514 are clear and precise:
“. . . the claimant employee, however, shall be allowed to change physicians by petitioning the commission one (1) time only for a change of physicians to a physician who must either be associated with . . .”
Giving this language its plain and customary meaning, the claimant is limited to petitioning for a change of physicians onetime, nothing more and nothing less. This wording does not limit the claimant in this one-time petition to a single doctor, as the respondents’ argue. To accept the respondents’ argument would clearly violate the legislative mandate of strict construction of the provisions by extending the one-time petition language to also imply a limit to a change of only one physician.
It is clear in this case that the claimant has petitioned this Commission for a change of physicians only one time. However, in this single petition, he requested a change of physicians from Dr. Sitzes to a wrist/hand specialist for compensable wrist/hand injury and to a neck specialist for his compensable neck injury. Such a request
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would not be contrary to the expressed provision of Ark. Code Ann. § 11-9-514 or any other portion of the Act.
In its enactment of Ark. Code Ann. § 11-9-514, the legislature obviously intended to give the injured claimant one opportunity to have a choice in the selection of the medical provider to provide the medical services reasonably necessary for the compensable injury. It would not be reasonable to infer that the legislature also intended to discriminate against injured claimants, who sustained multiple different injuries in the same accident, by allowing them this choice for only one of their compensable injuries.
For the aforementioned reasons I must respectfully dissent.
_______________________________ PHILIP A. HOOD, Commissioner
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