LORINC v. ARAMARK CORPORATION, 1999 AWCC 295

CLAIM NO. E807879

JOSEPH LORINC, EMPLOYEE, CLAIMANT v. ARAMARK CORPORATION, EMPLOYER, RESPONDENT and RELIANCE NATIONAL INDEMNITY CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 29, 1999

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

Claimant represented by the HONORABLE C. BURT NEWELL, Attorney at Law, Hot Springs, Arkansas.

Respondent represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on February 4, 1999. In that opinion and order, the administrative law judge found that the claimant is entitled to temporary total disability benefits from November 20, 1998 through December 28, 1998 and that the claimant is entitled to a change of physician to Dr. John Slater. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed. [3] The respondent employer has the concession to provide food services at the Henderson State University cafeteria and snack bar. While working as catering and snack bar supervisor, the claimant suffered an admittedly compensable injury to his left knee on June 19, 1998. [4] After his injury, the claimant was initially seen by Dr. Noland Haygood, an Arkadelphia general practitioner. Dr. Haygood later referred the claimant to Dr. Kevin McCleod, an orthopedist in Arkadelphia, Arkansas. When the claimant later asked the respondents about seeing a different orthopedist, the respondents directed the claimant to seek treatment from Dr. Mulhollan. Various medical reports from these physicians occasionally note complaints of pain, tenderness, swelling, bruising, effusion, and “popping.” [5] Neither x-rays nor MRIs discovered any cartilage tear, bone fractures or any other injury. None of the claimant’s physicians ever clearly diagnosed the nature of the claimant’s knee injury. However, Dr. McCleod did recommend that the claimant undergo an exploratory arthroscopy in an attempt to determine the nature and extent of the claimant’s knee injury. Dr. Mulhollan appeared to concur in this judgment and indicated that he would be willing to perform the arthroscopy if needed. [6] Both Dr. Haygood and Dr. McCleod have, at previous times, directed the claimant to either remain off work or to return to work in some light or limited duty capacity. In reviewing the claimant’s medical records, we note that during the period in question, the claimant had returned to Dr. Haygood for treatment. In a progress note dated November 20, 1998, Dr. Haygood stated that, because of the unclear nature of the claimant’s injury, he believed that orthopedic referral and evaluation was necessary. Dr. Haygood also noted that the claimant was apparently being asked to do things beyond his previous restrictions. Dr. Haygood then stated that the claimant was being given a “work release pending his evaluation.” The record does not contain any report or statement from Dr. Haygood ever returning the claimant to work. However, in the transcript of the hearing the claimant testified that he had been released by Dr. Haygood to return to work without restrictions on or about December 28, 1998. [7] Dr. Haygood’s stated reason for removing the claimant from employment was because his knee was not improving despite extensive conservative treatment for his condition. Dr. Haygood was obviously of the opinion that, pending a further evaluation by an orthopedic specialist, the claimant should remain off work. Also, Dr. Haygood indicated that the claimant was not working within his previous restrictions, which purported to limit the number of hours that he was working. [8] In reviewing the payroll records which were made a part of the record, it does appear that the claimant was working, on average, approximately 35 to 40 hours per week during the period of August through November of 1998. While this does appear to be significantly fewer hours than the claimant was working prior to his injury, (based upon the stipulated temporary total disability rate of $348.00 per week, and the claimant’s stated hourly rate of $9.14 per hour, it appears that the claimant would have been working about 51 hours per week prior to his injury) it is still a significant amount of hours. [9] Prior to the present dispute, the respondents had paid to the claimant a considerable amount of temporary total and temporary partial disability benefits. The amount of temporary total disability benefits presently in dispute concerns the periods of November 20, 1998 through December 28, 1998, or a period of five weeks and four days. In order for the claimant to establish his entitlement to those benefits, he must establish that he was within his healing period and was totally incapacitated from earning wages. Arkansas State Highway Department v. Beshears, 272 Ark. 244, 613 S.W.2d 392 (1981). [10] The medical record makes it clear that the claimant was still within his healing period between November 20, 1998 and December 28, 1998. At that time, the claimant was undergoing active medical treatment and his condition had not been clearly diagnosed. Also, at least two orthopedic surgeons, as well as Dr. Haygood, had recommended that the claimant undergo exploratory arthroscopy to determine the exact nature of his injury. Even the respondents do not appear to be seriously arguing that the claimant was not within his healing period. [11] The other requirement to be eligible to receive temporary total disability benefits, is that the claimant must be totally incapacitated from working. In the present case, it was Dr. Haygood’s medical opinion that the claimant should not be working during the period in question. While questions as to disability and entitlement to benefits are matters for the Commission to decide, a doctor’s opinion in this regard carries considerable weight. Also, the Court of Appeals has held on numerous occasions that the Commission cannot simply disregard a physician’s opinion unless there is some basis for a contrary finding. [12] The claimant has offered medical evidence supporting an award for temporary total disability benefits. However, other than their blanket assertion that the claimant was not totally incapacitated during the period in question, the respondent has not offered any clear reason to deny the claimant temporary total disability benefits during the period he was taken off work by Dr. Haygood. This unsupported argument, when weighed against the contrary medical opinions of Dr. Haygood, lacks convincing effect. [13] In its brief, the respondents state that the claimant’s condition during the period he is seeking temporary total disability benefits was not materially different than it was for the period prior to November 20, 1998 or after January 5, 1999. While this assertion may be true, it does not refute Dr. Haygood’s rationale for having the claimant remain off work. That is, the claimant’s employment activities were hampering the recovery of the claimant’s injury. [14] The other argument asserted by the respondents is that the claimant should not receive temporary total disability benefits between December 18, 1998 and January 4, 1999, because the employer was not operating during that time frame. The respondents did not offer any authority to support this contention. Presumably, the respondents’ rationale for this period is that, since the claimant would not have been receiving a salary from the respondent for this period if he was not disabled, he should not be able to receive disability benefits from the respondent during the same period. However, this argument overlooks the fact that, but for his job related disability, the claimant could have sought other employment during the relevant time period that his regular employer was not in operation. In fact, the claimant testified that he had done so in the past. We therefore find the respondents’ contention is without merit. [15] We find that the claimant proved by a preponderance of the evidence that he is entitled to temporary total disability benefits for the period from November 20, 1998 through December 28, 1998. We reach this conclusion because the claimant was clearly within his healing period and his physician had directed that he remain off work. We note that there was certainly a reasonable basis for Dr. Haygood’s direction to remain off work during that period since the claimant’s condition had not improved while he was continuing to work prior to that period, and he was scheduled for an evaluation by a specialist. Absent any medical evidence to the contrary, we find that a preponderance of the evidence in the record establishes that the claimant was within his healing period and totally incapacitated from employment from November 20, 1998 through December 28, 1998. [16] The remaining issue in this case is the claimant’s entitlement to a change of physician. Since the claimant’s injury occurred after July 1, 1993, the claimant’s request for a change of physician is governed by the provisions of Ark. Code Ann. § 11-9-514 as amended by Act 796 of 1993. Ark. Code Ann. § 11-9-514 provides in relevant part:

11-9-514. Medical services and supplies — Change of Physician.
(a)(1) If the employee selects a physician, the Workers’ Compensation Commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the Commission that there is a compelling reason or circumstance justifying a change.
(2)(A) 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 recommendations of claimant or respondent.
(B) However, if the change desired by the claimant is to a chiropractic physician, optometrist, or podiatrist, the claimant may make the change by giving advance written notification to the employer or carrier.
(3) Following establishment of an Arkansas managed care system as provided in § 11-9-508, subdivisions (a)(1) and (2) of this section shall become null and void, and thereafter:
(A)(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) The claimant-employee, however, may petition the Commission one (1) time only for a change of physician, who must also either be associated with a managed care entity certified by the Commission 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 a certified managed care entity for any specialized treatment, including physical therapy, and only if such primary care physician agrees to comply with all the rules, terms, and conditions regarding services performed by the managed care entity initially chosen by the employer.

[17] On appeal, the respondents assert in part that the respondents had elected “to go under the managed care provisions”, and that the claimant failed to present any evidence that Dr. Slater is a physician approved under the managed care system for the respondents. The only evidence presented at the hearing bearing on any potential managed care issues are the following exchanges between the claimant and the respondent’s attorney, and between Mr. Ross (the claimant’s supervisor) and the respondent’s attorney. The claimant testified in relevant part as follows:

Q. Now, just going through your treatment history, you saw Doctor Hegood, which is the authorized treating physician for Aramark, is that right?

A. Yes.

Q. And the reason you know to go to this particular physician or this particular clinic is because it’s on the poster that you have posted at your place of employment, is that right?
A. I have personally had to send people to that medical clinic for injuries when I was the catering supervisor and the snack bar supervisor.
Q. And that’s because he’s part of your managed care program for your insurance carrier?

A. That’s just who we send them to.

Q. And that’s who’s on the poster that you have posted at the workplace for your employees and yourself to see, is that right?

A. Yes, ma’am. [Emphasis added] [18] Mr. Ross testified in relevant part as follows:

Q. How are employees notified about which clinic to go to if they have an accident or an injury on the job?

A. We have posters on the bulletin boards.

Q. Is this the poster with the M on it, the managed care poster?

A. Right.

Q. How long has that poster been up and you’ve been under the managed care system?

A. It was there before I got there.

Q. So that would have been sometime before December?

A. That was November of `97, right, so it was there when I arrived. [Emphasis added]

[19] On this record, we find that the testimony presented simply fails to establish whether or not the respondents have, in fact, selected an initial primary care physician (i.e., Dr. Hegood) from physicians associated with managed care entities certified by the Commission. Specifically, the record does not contain any evidence as to which managed care entities, if any, that Dr. Hegood may be associated with, and the record does not contain any evidence to indicate whether any managed care entities that Dr. Hegood may be associated with are certified by the Commission. Since the respondent has failed to establish by evidence or stipulation that it had the right of first choice of physician by association with a certified managed care entity under Ark. Code Ann. § 11-9-514(a)(3)(A)(i), we are constrained to also find that there is no basis in this record to conclude that a change of physician in this case would be subject to the restrictions of Ark. Code Ann. § 11-9-514(a)(3)(A)(ii). [20] In addition, since a managed care system has been established in Arkansas, we point out that Ark. Code Ann. §11-9-514(a)(3) has likewise rendered null and void the change of physician rules in subdivision (a)(1) and (a)(2). Therefore, applying the strict construction doctrine as we are constrained to do, on this record we find that the claimant may seek from any physician that he chooses any additional medical treatment which is reasonably necessary for his compensable injury. AccordFloyd Savage v. City of Little Rock, Full Workers’ Compensation Commission, Opinion filed August ___, 1999, (W.C.C. No. E708648). [21] In the present case, Dr. Haygood apparently referred the claimant to Dr. McCleod for evaluation and treatment. However, Dr. McCleod was unable to diagnose the claimant’s problem and suggested an exploratory arthroscopy to determine the extent and nature of the claimant’s injury. The claimant, who was apparently reluctant to undergo this procedure, requested the respondents to designate another doctor for an additional evaluation. The respondents then chose Dr. Mulhollan who, basically, reached the same result as Dr. McCleod. When Dr. Mulhollan appeared to be recommending yet another surgical procedure, the claimant requested that he be referred to the doctor who had treated him for his previous knee problems, Dr. Slater. [22] In the past, the claimant had undergone several knee surgeries for unrelated knee problems. Obviously, the kind of invasive surgical procedure recommended by Dr. McCleod and Dr. Mulhollan should only be undertaken with caution. Also, given the claimant’s extensive past history of knee problems, we believe that it would be beneficial for an evaluation of the claimant’s present condition by a doctor familiar with his past problems in order to determine whether there is any connection between them or if the claimant’s present injury is the result of a new job-related accident. [23] We also note that both Dr. McCleod and Dr. Mulhollan appeared to have been seeing the claimant for consultative purposes only. Such being the case, Dr. Haygood remained the claimant’s actual treating physician. His opinion that the claimant did need a referral to an orthopedic specialist for further treatment is obviously an important consideration. Dr. Haygood stated in his opinion, in his progress note of November 20, 1998, that Dr. Slater, because of his past familiarity with the claimant’s knee conditions, would be the best choice to provide the claimant the necessary treatment. [24] The claimant has a long history of knee problems of which Dr. Slater is intimately familiar. In fact, the record contains extensive records from Dr. Slater documenting those treatments. Obviously, Dr. Haygood is not capable of providing adequate treatment for this type of injury and there is no indication that the respondents would be in any way prejudiced by the claimant being treated by Dr. Slater. [25] For the reasons set out above, we find that the claimant was within his healing period and totally disabled between November 20, 1998 and December 28, 1998, and is therefore entitled to receive temporary total disability benefits during that period. We further find that the claimant’s entitlement to additional temporary partial disability benefits cannot be determined at the time of the hearing since the claimant had only just returned to work. Therefore, we are not reaching a determination as to the claimant’s entitlement to those benefits. Lastly, we find that the claimant is entitled to a change of physician to Dr. John Slater and that the respondents shall, henceforth, be liable for providing to the claimant all reasonable and necessary medical treatment furnished to him by Dr. Slater or by whichever physician that he chooses. [26] All accrued benefits awarded herein shall be paid in a lump sum without discount and with interest thereon at the maximum legal rate until paid. The claimant’s attorney is awarded the maximum attorney’s fee on all such benefits plus an additional attorney’s fee of $250.00 for prevailing upon this appeal. Pursuant to Ark. Code Ann. § 11-9-715, the respondent is ordered to pay one-half of all attorney’s fees awarded herein with the balance to be paid by the claimant out of benefits he receives. [27] IT IS SO ORDERED. [28] ______________________________
ELDON F. COFFMAN, Chairman ______________________________ PAT WEST HUMPHREY Commissioner [29] Commissioner Wilson dissents.