MAPLES v. ACCURATE PLASTIC MOLDING, 1996 AWCC 132

CLAIM NO. E504344

ROSE MAPLES, EMPLOYEE, CLAIMANT v. ACCURATE PLASTIC MOLDING, EMPLOYER, RESPONDENT and MARYLAND CASUALTY CO., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 26, 1996

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

Claimant represented by the HONORABLE DONALD ROBERTS, Attorney at Law, Hot Springs, Arkansas.

Respondents represented by the HONORABLE MICHAEL EMERSON, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on February 20, 1996. In that opinion and order, the administrative law judge found that the claimant is entitled to additional temporary total disability compensation for the period beginning September 25, 1995, and continuing to the end of her healing period, a date yet to be determined. In addition, the administrative law judge found that the claimant is entitled to a change of physician to Dr. Edward Weber from Dr. Bruce Safman.

[3] After a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. In addition, we find that the claimant failed to prove that she is entitled to a change of physician. Therefore, we find that the administrative law judge’s decision must be reversed. [4] The claimant sustained an admittedly compensable injury on March 13, 1995, when she received a blow to the right wrist from the handle of a half inch power drill that she was operating. She received initial medical treatment at the emergency room of Southwest Hospital. The emergency room physician diagnosed a wrist contusion and possible scaphoid fracture. A thumb spica splint was applied, and the claimant returned for a follow-up examination approximately one week later. Shortly after the follow-up examination at Southwest Hospital, the respondent carrier engaged the services of Pat Moneyhon, a rehabilitation case manager and registered nurse. After examining the claimant’s swollen wrist, Ms. Moneyhon arranged specialized care from Dr. Edward Weber, an orthopedic physician and board certified hand specialist, on March 23, 1995. [5] The swelling and painful condition of the claimant’s right wrist and hand persisted, and on May 19, 1995, Dr. Weber ascertained that the claimant’s symptoms were consistent with sympathetic reflex dystrophy. Dr. Weber proposed a stellate ganglion block followed by physical therapy to rehabilitate the right wrist and hand. [6] The claimant testified that she was reluctant to undergo the stellate ganglion block procedure recommended by Dr. Weber, and she contacted Ms. Moneyhon to request a second opinion to ascertain alternative treatment options. The claimant testified that she initially requested a second opinion from Dr. Gilliam, but was informed by Ms. Moneyhon that Dr. Gilliam is not board certified in hand care. The claimant instead received a clinical evaluation from Dr. Bruce Safman, a physiatrist, on May 31, 1995. Based on his clinical examination of the claimant, Dr. Safman concurred with Dr. Weber’s determination that the claimant’s condition was consistent with reflex sympathetic dystrophy. Dr. Safman also recommended either a stellate ganglion block or a Baer block, although Dr. Safman noted the claimant’s fear of the stellate ganglion block. [7] The claimant subsequently indicated to Ms. Moneyhon that she desired a change of physician. The claimant, her attorney, and Ms. Moneyhon met on June 6, 1995, and agreed that the claimant would change physicians to Dr. Safman if the respondent carrier would agree to the change of physician. Pam Rivers, a claims representative for the respondent carrier, notified the claimant’s attorney that the respondent carrier would agree to a change of physician from Dr. Weber to Dr. Safman. [8] The claimant presented to Dr. Safman on June 7, 1995. At that time Dr. Safman noted a definite improvement in the range of motion in the claimant’s right wrist and hand joints which he attributed to the claimant’s rigorous exercise since his prior examination. Dr. Safman also noted improvements in the physical appearance of the skin over the claimant’s right hand. Dr. Safman ordered physical therapy consisting of paraffin baths followed by rigorous stretching of the wrist and hand beginning on June 8, 1995. On July 26, 1995, Dr. Safman prescribed a TENS unit and also placed the claimant on a home exercise program in addition to physical therapy. [9] After initiating physical therapy in early June, both Dr. Safman and the claimant’s physical therapist observed incremental increases in the range of motion in the claimant’s right wrist through August 16, 1993, when Dr. Safman also prescribed a CPM machine to assist the claimant in home stretching procedures. In addition, Dr. Safman ordered a functional capacity evaluation on August 29, 1995 to assess the claimant’s physical capabilities. [10] In a subsequent progress report dated September 13, 1993, the claimant’s physical therapist indicated that the strength and range of motion measured in the claimant’s right wrist and hand had plateaued at her August 15, 1993, levels, and the claimant’s physical therapist recommended a discharge from physical therapy with a return to normal activities. [11] The claimant testified that, after learning that the respondent employer would not have a light-duty job available for her to return to, she initially investigated working in sales for her aunt. However, on September 17, 1995, the respondent employer contacted Pat Moneyhon to ascertain whether the claimant was capable of returning to light-duty work operating a “hydro machine”. Ms. Moneyhon testified that she operated the machine herself, then discussed the requirements with Dr. Safman who released the claimant to return to work on September 19, 1995. [12] The claimant reported back to work on September 29, 1995, and operated the hydro machine for approximately one and a half to two hours. However, the claimant developed pain and swelling in her right wrist and hand. The respondents sent the claimant to Southwest Hospital for any necessary treatment, and the attending physician advised the claimant to remain off work until her October 2, 1995, appointment with Dr. Safman. [13] Dr. Safman reported as follows with regard to the claimant’s October 2, 1995, visit:

Ms. Maples reports that, last Friday, her wrist started bothering her and swelling. She was sent home by her employer and was seen at Southwest Hospital. They gave her a work release to tomorrow with the knowledge that she would see me today.
The patient reports that the CPM machine is not helping her, and that her range of motion is approximately the same.
On examination, there was tenderness with flexion, extension, and radial and ulnar deviation of her wrist. There was no significant swelling that I could note.
Basically, this patient has been on light duty according to the information that I have from Pat Moneyhon. Subsequent to this patient’s departure, she returned to work one day and, after about an hour and a half, started complaining about swelling of the hand and pain in her wrist, and was sent home. The patient did not give me the detail that she had only worked an hour and a half. Today, I was under the impression that she was on the job for a more protracted period of time.
In light of the fact that this patient cannot handle her current job and there has been no significant change in her wrist function, I will declare her as having reached maximum medical improvement as of today. I would recommend that the CPM machine be returned, although I forgot to mention this to the patient.
I will rate her wrist, based on my last range of motion studies. I did not do range of motion today as Pat Moneyhon was not here and I did not get the full story of what was going on from the patient. However, past. She has an appointment on the 11th of this month, which I will have her keep this, as I had not been able to reach Pat Moneyhon by the time the patient left. We will cancel this appointment if her adjuster wishes. I will do a rating of the patient’s upper extremity in the near future.

[14] On October 4, 1995, Dr. Safman issued the claimant an impairment rating of 4% to the upper right extremity using his most recent wrist range of motion measurements. The respondents paid the claimant temporary total disability compensation for the period beginning on March 13, 1995, and continuing through September 24, 1995. In addition, the respondents paid the claimant for a 4% permanent partial impairment to the upper extremity. [15] The claimant testified that her last office visit with Dr. Safman occurred on October 2, 1995. The claimant testified that she called his office after that date, but got “no response”. Dr. Safman originally scheduled an additional appointment for October 11, 1995. However, Dr. Safman apparently deemed the October 11, 1993, consultation unnecessary after ascertaining the claimant’s status on October 2, 1995. [16] Ms. Moneyhon testified that she closed her file on the claimant on October 16, 1995. According to Ms. Moneyhon, if the claimant wished to return to Dr. Safman after that date, she should have contacted her attorney to have an appointment pre-approved with Pam Rivers, the respondent carrier’s adjuster. The claimant filed the present claim, seeking additional temporary total disability compensation and a change of physician, on October 26, 1995. [17] At the hearing held January 19, 1996, the claimant testified that she continues to experience pain and swelling in the right wrist and hand, and that the swelling develops after an hour and a half to two hours of activity. In addition, the claimant testified that she experiences limited wrist movement and limited grip strength. [18] Since the claimant’s injury occurred after July 1, 1993, the provisions of Act 796 of 1993 are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. ArkansasState Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (13) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of her injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. MadButcher. Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). [19] In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that she remained within her healing period after September 24, 1995. In that regard, the record establishes that Dr. Safman quickly instituted a course of rigorous physical therapy to preserve and improve the claimant’s range of wrist and hand motion when the claimant came under his care on June 7, 1995. Despite the claimant’s testimony to the contrary, both Dr. Safman and the claimant’s physical therapist observed that physical therapy rapidly increased the range of motion in the claimant’s right wrist which ultimately plateaued on August 16, 1993. Although Dr. Safman attempted to further maximize the claimant’s underlying condition through additional physical therapy, home exercise, and a CPM stretching machine, both Dr. Safman and the claimant’s physical therapist ascertained that the claimant received no additional benefit through four additional weeks of therapy, home exercise, and CPM stretching. Moreover, the record establishes that Dr. Safman had nothing additional to offer the claimant to improve her underlying condition after releasing her from physical therapy on September 13, 1995. Therefore, we find that the claimant’s compensable injury became as far restored as the permanent nature of the injury would permit by September 24, 1995. [20] In reaching our decision, we note that the claimant did not receive a stellate ganglion block or a Baer block during the course of her treatment, and that the claimant has suggested that this treatment might improve her underlying condition. However, we also note that the claimant previously declined the block procedure when offered by Dr. Weber. In addition, we note that the block procedures are intended for pain control and not intended to improve the underlying dysfunction associated with reflex sympathetic dystrophy. Therefore, for the reasons discussed herein, we find that the claimant failed to prove that she remained within her healing period after September 24, 1994. Accordingly, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. [21] With regard to the claimant’s request for a change of physician, under Ark. Code Ann. § 11-9-508 (a) (Repl. 1996), employers must promptly provide medical treatment which is reasonably necessary for treatment of work-related injuries. In addition, Ark. Code Ann. § 11-9-514 (Repl. 1996) establishes the procedures which must be followed if the injured employee later desires to change physicians. With regard to this procedure, Ark. Code Ann. § 11-9-514 (a) provides the following:

(a)(1) If the employee selects a physician, the 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) 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. . . .

[22] Initially, we note that the respondents contend on appeal that the claimant exhausted her one time change of physician when she elected to receive treatment from Dr. Safman after negotiating directly with the respondent carrier. However, a mutually agreed upon change of physician from a physician selected by the employer/carrier to a physician selected by the employee is not the employee’s one time change of physician permitted by Ark. Code Ann. § 11-9-514 (a)(2). See, Magic Mart, Inc. v. Little, 12 Ark. App. 325, 676 S.W.2d 756 (1984). Therefore, we find that the claimant did not exhaust her one time opportunity to petition the Commission for a change of physician when she changed to Dr. Safman, and we therefore find that she is not required to establish a compelling reason in order to receive a change of physician. [23] 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. 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. The Commission has held on numerous occasions that a claimant’s personal preference to change physicians is not a sufficient reason to grant a change of physician. See, ShirleyCerrato v. Pentair Industries, Full Workers’ Compensation Commission, Jan. 9, 1992 (Claim No. D912632); Ronald Chapman v.Bill Blann Trucking, Full Workers’ Compensation Commission, Oct. 22, 1991 (Claim No. D903638). [24] In the present claim, we find that the claimant failed to prove that a change of physician is justified. Contrary to the claimant’s assertion that her condition has not improved under Dr. Safman’s care, both Dr. Safman and the claimant’s physical therapist observed marked improvement through the treatment ordered by Dr. Safman. Moreover, the medical evidence establishes that Dr. Safman’s course of treatment has been highly appropriate and successful. In that regard, we find that no physician is in a better position than Dr. Safman to determine what additional medical care is reasonably necessary to treat the claimant’s injury, and we find that a change of physician would be counterproductive to the claimant’s treatment. [25] We also find that the claimant’s suggestion that Dr. Safman has refused her additional care is without merit. Although the claimant may have received “no response” from Dr. Safman’s office when she called his office shortly after her October 2, 1995, visit, the claimant acknowledged that she did not communicate further with the respondent to clear up any confusion over authorizing medical care, but instead filed her petition with the Commission for a change of physician. In that regard, we note that Ms. Moneyhon testified that the claimant called her shortly after Dr. Safman assigned the claimant a permanent impairment rating, and that the claimant expressed dissatisfaction with Dr. Safman’s rating. However, the claimant’s personal preference to change physicians is not a sufficient reason to justify a change of physician. Moreover, Dr. Safman has not released the claimant from his care, and as indicated, we find that Dr. Safman is the most appropriate physician to ascertain the claimant’s additional medical needs. [26] Therefore, after reviewing the record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to additional temporary total disability compensation. In addition, we find that the claimant failed to prove that she is entitled to a change of physician. Accordingly, we find that the administrative law judge’s decision must be reversed. [27] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[28] Commissioner Humphrey dissents.