MILLER v. TYSON FOODS, INCORPORATED, 1994 AWCC 78

CLAIM NO. E305981

RICHARD MILLER, EMPLOYEE, CLAIMANT v. TYSON FOODS, INCORPORATED, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 28, 1994

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

Claimant represented by KENNETH E. BUCKNER, Attorney at Law, Pine Bluff, Arkansas.

Respondent represented by EARL “BUDDY” CHADICK, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

[1] OPINION AND ORDER
[2] Respondent appeals an opinion of the Administrative Law Judge filed on September 23, 1993 finding that claimant followed the statutory procedures for changing physicians to a chiropractor; that claimant is entitled to additional temporary total disability benefits; and that the treatment provided by Drs. John Barbaree and Austin Grimes was reasonable and necessary.

[3] After our de novo review of the entire record, we find that the claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge, as modified herein. [4] On March 1, 1993, claimant sustained an admittedly compensable injury to his back when he fell from a truck. Respondent ordered claimant to receive treatment for his compensable injury from Dr. Jeffery Fergusson, a chiropractor. Claimant testified that Dr. Fergusson’s treatment was not helping his condition very much. Claimant added that he had received treatment from Dr. John Barbaree, another chiropractor, on several occasions in the past for problems involving his back and hip. Claimant said he asked the employer about changing to Dr. Barbaree and the employer informed claimant of the necessary paper work to be completed in order to change to Dr. Barbaree. On or about March 10, 1993, claimant provided the employer advance written notification of his desire to change to Dr. Barbaree. [5] Respondent’s argument that the less burdensome procedures for changing to a chiropractor do not apply when the change is from a chiropractor chosen by the employer is without merit. Ark. Code Ann. § 11-9-514 (a)(2) provides that if the employer selects the first physician to provide treatment for the compensable injury, claimant may thereafter change to a chiropractor simply by giving the employer advance written notification of his desire to change. The statute does not state that the rule applies only when the employer has initially selected a medical physician. In fact, the section refers to a chiropractor as a “chiropractic physician.” Thus, the statute allows claimant to change to a chiropractic physician by providing advance written notification of his desire to change, even if the employer’s initial selection of a physician to provide treatment for the compensable injury is a chiropractic physician. The plain language of the statute will support no other interpretation. Therefore, we affirm the opinion of the Administrative Law Judge in this regard. [6] Concerning temporary total disability benefits, the Administrative Law Judge awarded such benefits from March 29, 1993 through July 12, 1993. Respondents had already voluntarily paid these benefits from March 29 through April 11 and from July 6 through July 12, 1993. Thus, the Commission is only concerned with claimant’s entitlement to temporary total disability benefits from April 12 through July 5, 1993. [7] Dr. Barbaree made a valid referral to Dr. Grimes on or about April 6, 1993. Dr. Grimes prescribed physical therapy, which claimant received until on or about June 18, 1993. On April 6, 1993, Dr. Grimes advised claimant to remain off work for two weeks. The record contains additional documents authored by Dr. Grimes indicating that claimant should remain off work for six weeks as of April 20; four weeks as of May 26; and for an indefinite period of time beginning June 22, 1993. As noted above, claimant received physical therapy until on or about June 18, 1993. He presented to Dr. Grimes on June 22 and Dr. Grimes recommended that claimant undergo a lumbar myelogram with a CT scan. This study was carried out on June 28 and claimant returned to Dr. Grimes on June 30, 1993. At that time, Dr. Grimes allowed claimant to return to restricted duty and released claimant from active medical care. Therefore, based on the above evidence, we find that claimant is entitled to additional benefits for temporary total disability from April 12 through June 30, 1993, and the opinion of the Administrative Law Judge is modified accordingly. [8] Finally, we affirm the opinion of the Administrative Law Judge finding that the treatment provided by Dr. Barbaree and Dr. Grimes was reasonable and necessary. Respondent’s argument on this issue was expressed in the following manner:

Two orthopedists, Dr. Lytle and Dr. Grimes, concur that claimant’s best treatment is a program of supervised exercise under a physical therapist. Only one orthopedist, Dr. Grimes, also recommended continued chiropractic treatments by Dr. Barbaree. Dr. Grimes was treating claimant only because Dr. Barbaree referred the claimant to him. This suggests that, after Dr. Grimes had begun treating claimant, chiropractic treatments by Dr. Barbaree were not reasonably required or necessary.

[9] It appears that respondent has conceded that the physical therapy claimant received was reasonable and necessary for claimant’s compensable injury. Respondent seems to only challenge any chiropractic treatments received by claimant subsequent to the referral to Dr. Grimes. However, there is insufficient evidence that claimant received chiropractic treatments from Dr. Barbaree after Dr. Grimes prescribed physical therapy. In fact, claimant testified that while he was receiving physical therapy as prescribed by Dr. Grimes, he did not receive any chiropractic treatment. The evidence in the record appears to bear out claimant’s assertion. There is no evidence that claimant returned to Dr. Barbaree until June 21, which is obviously after claimant had been released from physical therapy on or about June 18. As a result of this visit, Dr. Barbaree referred claimant back to Dr. Grimes. As noted above, Dr. Grimes thereafter ordered a lumbar myelogram with a CT scan and released claimant from active care. There is insufficient evidence that claimant was actually receiving chiropractic treatments at the same time he was receiving physical therapy. Therefore, based on the above evidence, we find that all treatment was reasonable and necessary. [10] Further, we would note that it is totally irrelevant whether Dr. Fergusson, the chiropractic physician chosen by the employer, could have provided any treatment that was provided by Dr. Barbaree. Claimant followed the procedures to change to Dr. Barbaree; thus, it doesn’t really matter that Dr. Fergusson could have subsequently provided the same care. [11] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant followed the statutory procedures for changing physicians to a chiropractor and that the treatment provided by Drs. Barbaree and Grimes was reasonable and necessary. Additionally, we modify the opinion of the Administrative Law Judge to find that claimant is entitled to additional benefits for temporary total disability from April 12 through June 30, 1993. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge, as modified herein. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [12] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[13] Commissioner Tatum dissents.

[14] DISSENTING OPINION
[15] I respectfully dissent from the majority’s opinion finding that claimant complied with the Arkansas Workers’ Compensation Law in changing from an employer-selected chiropractor to a second chiropractor; that the care and treatment rendered by the second chiropractor is reasonable and necessary medical treatment; and, that claimant is entitled to additional temporary total disability benefits.

[16] Claimant maintains he sustained a compensable injury on March 1, 1993. The claim was accepted as compensable and claimant has received benefits. Claimant presently contends he is entitled to additional temporary total disability benefits; that he complied with the Arkansas Workers’ Compensation Law in changing from an employer-selected chiropractor to his own personal chiropractor, Dr. Barbaree; and, that the care and treatment rendered by the second chiropractor was reasonable and necessary. Respondent asserts that claimant’s change of physician to Dr. Barbaree is unauthorized and that the care and treatment rendered by him is unreasonable and unnecessary. Additionally, respondent maintains that claimant has been paid all appropriate temporary total disability benefits and is not entitled to any additional benefits. A hearing was held and an Administrative Law Judge found in favor of the claimant. [17] The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. FaulknerRadio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H.Knight Co., 220 Ark. 333, 248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521
(1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Additionally, A.C.A. § 11-9-514 (1984) provides:

(a)(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, without or without a hearing, the commission shall determine the second physician and shall not be bound by the recommendations of claimant or respondent. However, if the change desired by the claimant is to a chiropractic physician, the claimant may make the change by giving advance written notice to the employer or carrier.

[18] Claimant failed to comply with the Arkansas Workers’ Compensation Code when he changed from the employer selected chiropractor to a second chiropractor. Also, the care and treatment rendered by the second chiropractor is unreasonable and unnecessary. Additionally, claimant is not entitled to additional temporary total disability benefits. [19] It is undisputed that claimant was originally sent to Dr. Ferguson, an employer-selected chiropractor. Eventually, claimant decided he wanted to go to Dr. Barbaree, also a chiropractor. Claimant went to Dr. Barbaree after providing written notice of the change to respondent. However, this is not sufficient to comply with the Arkansas requirements. Therefore, the change to Dr. Barbaree and the subsequent referral is unauthorized. [20] A.C.A. § 11-9-514 does not specifically address the situation when the initial treating physician chosen by the employer is a chiropractic physician. Thus, we must look to the legislative intent behind the law. A.C.A. § 11-4-514 was drafted to protect the economic interest of the employer while providing a claimant with a limited choice of physician. To comply with the intent behind this statute, claimant must petition the Commission for his one time only change. Otherwise, an employer will be subject to unnecessary medical expenses and doctor-shopping by the claimant as he or she goes from chiropractor to chiropractor. Allowing unrestricted changes to chiropractors is not in harmony with legislative intent behind the law. Therefore, I respectfully dissent from this portion of the majority’s decision. [21] Furthermore, a review of the evidence indicates that the care and treatment rendered by the second chiropractor, Dr. Barbaree, is not reasonable and necessary. Dr. Ferguson is of the opinion that any care and treatment rendered by Dr. Barbaree could have been rendered by himself. However, claimant was dissatisfied with Dr. Ferguson perhaps because Dr. Ferguson released claimant to return to work. [22] Interestingly, Dr. Barbaree initially concurred with Dr. Ferguson. Yet, at one point, in March of 1993, claimant applied to respondent for a vacation. After respondent denied claimant’s request, claimant returned to Dr. Barbaree. At that point, Dr. Barbaree ordered claimant off work for approximately one week. Dr. Barbaree then referred claimant to Dr. Grimes, an orthopedist. Significantly, Dr. Grimes recommended physical therapy and continued chiropractic treatments. Apparently, Dr. Grimes was not going to cut off the hand that feeds him. Also, the evidence shows that claimant had plateaued prior to thisadditional treatment. [23] Lastly, the evidence indicates claimant has received all the temporary total disability benefits to which he is entitled. The majority found that claimant had proven by a preponderance of the credible evidence that he was temporarily totally disabled from March 29, 1993 throughApril 19, 1993 and from April 12, 1993 through June 30,1993. However, I am of the opinion that a preponderance of the credible evidence does not support this determination. Claimant had received temporary total disability benefits from respondent from March 29, 1993 through April 11, 1993 and from July 6, 1993 through July 12, 1993. Temporary total disability benefits were terminated after April 11, 1993 because of the conflicting diagnosis from two different chiropractors. Dr. Ferguson had opined that claimant was fit to return to work with no restrictions as of March 5, 1993. Thus, subsequent to March 5, 1993, claimant was not temporarily and totally disabled. [24] Additionally, the medical records generated by Dr. Grimes do not indicate that claimant was unable to perform gainful employment. Rather, Dr. Grimes appears confused. He seems to be under the impression that claimant could only return to work as a truck driver which he does not think is feasible. However, Dr. Grimes does not indicate that claimant could not perform light duty. Also, there is some discrepancy about whether and when respondent offered claimant light duty. Respondent’s witness, Ms. Brown, maintains that modified duty was offered to claimant early on. However, claimant maintains that it was not until July of 1993 that he was first offered light duty. I am of the opinion Ms. Brown’s testimony is more credible. [25] Additionally, Dr. Lytle maintained claimant could return to work with some restrictions as of April 19, 1993. In light of the foregoing, claimant is not entitled to additional temporary total disability benefits beyond those which were paid by respondent. Therefore, I respectfully dissent from the majority’s opinion. [26] ALLYN C. TATUM, Commissioner