CLAIM NOS. E807719, E807720 E807721
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 7, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE R. THEODOR STRICKER, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondent appeals an opinion and order filed by the administrative law judge on March 24, 2000. In that opinion and order, the administrative law judge found that the respondent is liable for all medical treatment at issue in this case. The respondent asserts that the respondent has no liability except for treatment provided through Dr. J. C. Callaway and Dr. Shailesh Vora. After conducting a de novo review of the entire record, we find that the respondents are liable for the claimant’s treatment by Dr. D’Orsay Bryant for her carpal tunnel syndrome injury prior to January 11, 1995. However, we also find that the respondents have established that the respondents are not liable for any of the claimant’s medical treatment at issue in this claim which the claimant received after January 11, 1995. Therefore, we find that the decision of the Administrative Law Judge must be affirmed in part and reversed in part.
Issue I: Treatment After January 11, 1995.
The relevant facts in this case are not in dispute. The claimant sustained an admittedly compensable bilateral carpal tunnel syndrome injury in 1983 and an admittedly compensable back injury in 1996. On January 11, 1995, the claimant signed a Form N relating to her bilateral carpal tunnel syndrome. On October 11, 1996, the claimant signed a Form N relating to her back injury. The claimant’s authorized treating physicians for these injuries are Dr. Callaway and Dr. Vora. In addition to the treatment that the claimant received from Dr. Callaway and Dr. Vora which the respondent paid for, the claimant also sought the treatment at issue from other physicians for her carpal tunnel syndrome problems and her back problems beginning in about 1996. The treatment at issue was not based upon any referral from Dr. Callaway or Dr. Vora. Instead, the preponderance of the evidence indicates that the claimant sought treatment from the physicians at issue on her own initiative during periods that Dr. Callaway and Dr. Vora were the claimant’s authorized treating physicians. The treatment at issue was not “emergency” treatment. The respondent did not acquiesce in the claimant’s change of physicians, and the claimant did not seek a change of physician with the Commission prior to seeking treatment from unauthorized physicians.
The administrative law judge, noting that there is no evidence that the respondent had contracted with a managed-care organization, concluded that there were no change of physician rules in effect for the claimant during the time period at issue. Therefore, the administrative law judge concluded that the claimant was at liberty to seek reasonably necessary medical treatment from any physician of her own choosing. The administrative law judge drew this legal conclusion based on a statutory interpretation previously made by a majority of this Commission in Savagev. City of Little Rock, Full Workers’ Compensation Commission Op. filed October 7, 1999 (W.C.C. No. E708648).
In Byars Construction Company v. Byars, ___ Ark. App. ___, ___ S.W.2d ___ (CA00-192, filed December 20, 2000), the Court of Appeals agreed with the statutory interpretation in Savage, supra, that when an Arkansas managed-care system was established on September 1, 1995, the change of physician rules in Ark. Code Ann. § 11-9-514 (a)(1) and (2) became null and void. In addition, the Court agreed with the Commission’s interpretation that Ark. Code Ann. § 11-9-514 (a)(3), as amended by Act 796 of 1993, fails to address how a claimant would go about changing physicians if her employer had not contracted with a managed-care organization. However, whereas the Commission in Savage
interpreted this “loophole” created by Act 796 as permitting an injured worker to seek reasonably necessary treatment from any physician she chooses, the Court in Byars interpreted this “loophole” as precluding any change of physician. Specifically, the Court concluded:
The Commission failed to take into account Ark. Code Ann. § 11-9-514 (b), which immediately follows the provisions discussed above dealing with the selection and change of physicians:
(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.
Therefore, even if § 11-9-514 (a) failed to address the situation, as exists here where (1) and (2) have become null and void yet the employer has not contracted with a managed-care organization, subsection (b) appears to fill this void by precluding any change of physician, except emergency treatment, or else the new physician’s services will be at the claimant’s expense. We are obliged to strictly construe and apply the Workers’ Compensation Act. Code Ann. § 11-9-704 (c)(3). The Commission erred in holding to the contrary, and we must reverse on this point.
Consequently, we are constrained by the recent decision in Byars to conclude that the claimant was precluded from seeking a change of physician for her 1996 back injury, and the unauthorized treatment at issue that she received for that injury was at her own expense.
As regards the claimant’s 1983 bilateral carpal tunnel syndrome injury, we note that the administrative law judge’s decision and the briefs on appeal give no consideration to the question of whether the Amendments of Act 796 of 1993 to Ark. Code Ann. § 11-9-514 do or do not apply to injuries that occurred prior to July 1, 1993 (i.e. to the claimant’s bilateral 1983 carpal tunnel syndrome). However, for the following reasons, we find that the respondent cannot be liable for the unauthorized treatment at issue for the claimant’s 1983 injury, regardless of whether or not the amendments of 1993 apply to the claimant’s 1983 injury. If Act 796 does apply, then the claimant was precluded from changing physicians based on the recent statutory interpretation provided by the Court in Byars, supra. If the amendments of Act 796 do not apply to the claimant’s 1983 injury, then this claim for reimbursement would be subject to the provisions of Ark. Code Ann. § 11-9-514 that existed prior to the Amendments of Act 796. In the present case, the claimant received a copy of Form N, and the claimant did not petition the Commission before obtaining the unauthorized treatment at issue. Therefore, the claimant would be barred from obtaining payment of the medical expenses at issue since she did not follow those change of physician rules in Ark. Code Ann. § 11-9-514 in effect prior to the Amendments of Act 796.
Issue II: Treatment Before January 11, 1995.
However, we point out that, if an employer fails to give an injured employee a copy of From N, the change of physician rules do not apply.See Ark. Code Ann. § 11-9-514(c) (Supp. 1999); see also, Stephensonv. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000). Consequently, we find that the requirements of Section 514(c) do not apply with respect to medical treatment before the claimant signed a Form N on January 11, 1995.
In addition, we find that the claimant has established by a preponderance of the evidence that Dr. Bryant’s 1993 treatment was reasonably necessary for treatment of her admittedly compensable bilateral carpal tunnel syndrome injury. In reaching that conclusion, we are persuaded by the facts that (1) at the point in time that the claimant went to see Dr. Bryant in February of 1993, the claimant was clearly experiencing ongoing problems from her bilateral carpal tunnel syndrome; (2) approximately four months had elapsed since the claimant’s last office visit with Dr. Callaway when the claimant presented to Dr. Bryant in February of 1993; (3) at that time, Dr. Callaway had already performed a right side carpal tunnel release and was proposing a left side carpal tunnel release; (4) Dr. Bryant, an orthopedist, reached the same conclusion as Dr. Callaway regarding the claimant’s need for surgery on the left side; and (5) following her single visit to Dr. Bryant in 1993, the claimant did not seek any additional treatment from any physician until 1995. Under these circumstances, we find that the claimant’s consult with Dr. Bryant in 1993 for a second opinion regarding surgery, and which turned out to be the only consult that the claimant sought for ongoing problems in an approximately three-year span of time, was a reasonable and necessary medical expense.
Therefore, after conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be reversed with regard to the award of medical expenses after January 11, 1995, but affirmed wtih regard to the award of medical expenses prior to January 11, 1995.
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 Administrative Law Judge’s decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996).
For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).
IT IS SO ORDERED.
_____________________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson concurs.
Commission Turner dissents.