SAVAGE v. CITY OF LITTLE ROCK, 1999 AWCC 303

CLAIM NO. E708648

FLOYD SAVAGE, EMPLOYEE, CLAIMANT v. CITY OF LITTLE ROCK, EMPLOYER, RESPONDENT and MUNICIPAL LEAGUE WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED OCTOBER 7, 1999

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

Claimant represented by the HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.

Respondent represented by the HONORABLE J. CHRIS BRADLEY, 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 16, 1999. In that opinion and order, the administrative law judge found in relevant part that the claimant is entitled to seek medical treatment from any physician that he selects. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed. In addition, by motion filed August 4, 1999, the claimant’s attorney seeks to withdraw as counsel. After considering the claimant’s agreement thereto, we hereby grant the motion by claimant’s counsel to withdraw. [3] In lieu of a hearing on this claim, the parties agreed to submit the issues of change of physician and an independent medical evaluation to the administrative law judge on briefs and exhibits. In his brief, claimant contended that he is entitled to a change of physician or, at the very least, an independent medical evaluation by a physician chosen by the administrative law judge. Conversely, respondent contended that claimant is not entitled to a change of physician or the appointment of a physician by the Commission. [4] A review of claimant’s brief reveals that claimant sought medical care outside the authorized chain of physicians, the services of which he paid for on his own. Claimant specifically stated in his brief that claimant did not request reimbursement for the unauthorized treatment and the purpose of this litigation was not to seek reimbursement for prior unauthorized care. However, in light of the treatment he received from the unauthorized physicians, claimant contended that the differences in opinion between the authorized and unauthorized physicians regarding the type of treatment he should receive in the future presents a compelling circumstance for a change of physician or, in the alternative, an independent medical evaluation. Absent from claimant’s contentions and argument is a reliance upon Ark. Code Ann. § 11-9-514(a)(3) which provides that the change of physician rules set forth in Ark. Code Ann. § 11-9-514(a)(1) (2) will become null and void after the establishment of an Arkansas managed care system. [5] A review of respondent’s hearing brief likewise fails to assert an argument with regard to the effect of Ark. Code Ann. § 11-9-514(a)(3) and the null and void language. Neither party has introduced evidence concerning the implementation of a managed care program for this respondent which would allegedly bring the null and void language in sub-section (a)(3) into play under the dissent’s proposed statutory interpretation. [6] The facts in this case are not disputed. The evidence reflects that claimant sustained a compensable injury on July 9, 1997, for which he sought medical care from Dr. Kevin Collins. At his initial visit, Dr. Collins recorded the following history:

. . . the patient is a Little Rock police officer and was working today when he was involved in an altercation with a man who was resisting arrest. Mr. Savage and three other police officers fought to control him and had to resort to using a pepper spray as well. After the altercation, Mr. Savage noticed a skinned left thumb, a bruise on his left wrist after the fight. A couple of hours later while at the police stating (sic) filling out reports he began experiencing some sharp pains in his neck. The pain on gradually and increased somewhat within three hours. He subsequently notified a supervisor, Sgt. Carl Nelson, and was told to go to a doctor of his choice at that point. . . The patient also says he has some pain in his lower back that hurt approximately an hour but has subsequently stopped hurting and he has no complaints of back pain presently. His biggest concern is neck pain. However, that has increased on a left side in the back of his neck. He describes it as being sharp and feels like it has a burning quality to it. The patient states he feels like there is hot wire rods sticking in his neck vertically and hurts into his left shoulder blade area from the neck. He states that his neck feels like a rubber band that is either stretched too tight or about to break, or has just popped.

[7] Dr. Collins diagnosed claimant with myofascial pain syndrome which is associated with occipital neuralgia. An MRI of claimant’s spine was ordered at that time. The MRI report was within normal limits. On claimant’s return visit to Dr. Collins, physical therapy was prescribed. [8] After undergoing a week of therapy, Dr. Collins referred claimant to Dr. William Ackerman, an anesthesiologist who specializes in pain management. Dr. Ackerman saw the claimant during the first week of August, 1997. After conducting an examination of the claimant, Dr. Ackerman arrived at the following conclusion:

It appears that the patient has muscle injury, as well as a cervical and lumbar sprain/strain. He also has a significant tenderness in the facet joints, made worse with stressing of the facet joints.

[9] Dr. Ackerman prescribed conservative therapy and medications. Claimant continued to follow Dr. Ackerman’s care which eventually included myofascial trigger point injection therapy. By November of 1997, claimant’s complaints of pain involving his lumbar spine failed to completely resolve. Consequently, Dr. Ackerman ordered an MRI on November 18, 1997. This MRI revealed:

Early disc degeneration at L4-5 with mild posterior diffuse bulging disc and superimposed mild broad-based right posterolateral herniated disc with extension into right L4-5 neural foramen and with mild right L4-5 neural foraminal narrowing.

[10] After receiving claimant’s lumbar MRI results, Dr. Ackerman referred claimant to Dr. Ronald Williams, a neurosurgeon. Dr. Williams reviewed claimant’s diagnostic film results as well as performed a physical examination. After concluding that claimant’s pain “rarely goes beyond the hip”, Dr. Williams was of the opinion that claimant’s disc protrusion was small and that he was not a surgical candidate. Nonetheless, Dr. Williams arranged for an MRI of claimant’s right hip and an EMG and nerve conduction studies of the right leg. The diagnostic tests ordered by Dr. Williams were all within normal limits. After evaluating claimant’s test results, Dr. Williams stated in correspondence to Dr. Ackerman on January 6, 1998:

Mr. Savage’s EMG and nerve conduction studies were basically normal as was the MRI of the hip. A lot of his problem seems to be referable to his work, so I would like to get a work evaluation done on him. I do not presently anticipate any surgery.

[11] A work capacity assessment was performed in January of 1998. After performing a thorough evaluation, it was recommended that claimant return to his full-duty position as a Little Rock police officer and that further physical therapy be prescribed. Although claimant was released to full duty, Dr. Williams’ June 9, 1998 medical report indicates that claimant was performing a desk job which “actually seems to aggravate his discomfort worse than regular duty does.” [12] A medical report dated August 6, 1998, was introduced into evidence, but fails to identify the medical care provider. This report reveals a quite different picture than that contained in all previous medical records. Specifically, the physical exam revealed:

Physical exam was done with the patient undressed and evaluated in a gown. He was able to dress and undress unaided. He walks with an antalgic gait and assisted with a cane with a list to the right. Cervical exam was abnormal was 75% of flexion, extension and marked decrease of left lateral bending. There was moderate tenderness and muscle spasm, greater over the right. Reflexes were 2+ and equal bilaterally. There was good motor strength and normal sensations. Axial compression was painful and reproduced his headaches. Adson’s test was negative. Shoulder range of motion was full. Dorsal spine exam was abnormal with moderate tenderness and muscle spasm. Lumbar spine was also abnormal. There was 80% loss of flexion, extension and lateral bending, moderate to severe muscle spasm, list to the right. He was unable to walk on his heels and toes. There was marked tenderness of the L4-L5 spinous process and paraspinous muscles, and marked tenderness of the right SI joint. Leg lengths are equal. Pelvic tilt absent. Positive Trendelenburg on the right. Straight-leg raising test was abnormal in the recumbent position at 45-60 degrees, greater on the right. Sitting was moderately positive. Patrick’s test was positive on the right. Neurological examination of the lower extremities revealed a depressed right patellar and Achilles reflex as compared to the left with weakness of the left extensor hallucis longus. Calf sizes were equal and sensations were decreased for the SI dermatome on the right.

[13] X-rays of claimant’s spine were performed at that clinic and claimant presented his MRI films to the reviewing examiner. The examiner diagnosed claimant with transitional S1 junction and sacroiliac syndrome after concluding that claimant had an abnormal MRI and EMG. Dr. J. Greg Pesnell with the Claiborne Medical Clinic in Homer, Louisiana authored a report dated August 18, 1998, stating that he reviewed the report from Dr. Philips with the Louisiana Clinic (presumably the author of the unidentified report set forth above) and that he is in agreement with Dr. Philips’ findings. [14] After being evaluated at the unidentified clinic and by Dr. Pesnell with the Claiborne Family Medical Clinic, claimant was referred to Dr. John Wilson, an orthopedic specialist, by his authorized treating neurosurgeon, Dr. Ron Williams. Specifically, Dr. Wilson’s physical examination revealed:

Examination reveals restriction of motion of the cervical spine, turning from side to side. He had better motion with flexion and extension. There is no muscle spasm. Deep tendon reflexes are present and equal in both upper extremities. Adson’s sign is not present.
Examination of his low back reveals restriction of motion and tenderness over the right posterior superior iliac spine. Deep tendon reflexes are present and equal in both lower extremities. This gentleman walks with an antalgic gait. He carries a cane. He relates he placed himself on the cane.

[15] Dr. Wilson reviewed the MRI films of both claimant’s cervical and lumbar spine and found them to be within normal limits with the exception of some degenerative changes in the lumbar spine. Although Dr. Wilson diagnosed claimant with a transitional lumbar vertebra at the lumbosacral junction, he stated:

I don’t find a great deal of objective pathology in this gentleman which I’ve advised him. He’s seen a physician in New Orleans and also is seeing a neurosurgeon, I believe, in Houston. I advised him I do not see any indications for operative intervention. I suggest he continue his current activities at work within the limits of his functional capacity assessment.

[16] After having the opportunity to review the reports from Dr. Pesnell and the unidentified report, Dr. Wilson stated in correspondence dated September 19, 1998:

At any rate, my report stands as it is. I did not find anything objective on this gentleman that would indicate the need for operative intervention.

[17] Likewise, in a report dated September 14, 1998, claimant’s authorized neurosurgeon, Dr. Ronald Williams, again reiterated:

I have not really felt that Mr. Savage would benefit much from surgery. I have released him to return to full duty.

[18] Based upon claimant’s objective findings of a right posterolateral disc herniation at L4-L5, Dr. Williams assigned claimant a 7% physical impairment rating to the body as a whole. [19] In his opinion, the administrative law judge found that respondent abandoned its argument that further medical treatment was not reasonable and necessary since respondent’s argument centered upon whether there were any compelling reasons or circumstances existing for a change of physician. However, as we review respondent’s brief which was submitted to the administrative law judge in lieu of a hearing, we do not reach the same conclusion as the administrative law judge. In its hearing brief, respondent states:

. . . before granting a change of physician, the proposed procedure and the conditions sought to be remedied must be analyzed and the claimant has the burden of proving by a preponderance of the evidence that the medical treatment is reasonable and necessary. (Citation omitted.)

[20] As noted by respondent, claimant has offered no proposed treatment. Instead, claimant has requested a change of physician on the grounds that the medical treatment he received from Dr. Pesnell and the unidentified physician in the unidentified medical report is different from that prescribed by claimant’s authorized physicians and that a change for yet another opinion is necessary. Respondent states that in summary claimant failed to present a compelling reason or circumstance which would allow the change of physician requested since the requested change is for treatment which is not reasonable and necessary. [21] This Commission has found on similar facts that an authorized treating physician with a well-established physician/patient relationship was in the best position to determine what additional medical treatment was reasonably necessary to treat the claimant. Accordingly, we have found that a change of physician for a third opinion would be counterproductive. Rose Maples v. Accurate Plastic Molding, Full Commission Opinion, June 26, 1996 (E504344). [22] In this regard, prior to the amendments of Act 796 of 1993, Ark. Code Ann. § 11-9-514 provided in relevant part:

11-9-514. Medical services and supplies — Change of Physician.
(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 (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. However, if the change desired by the claimant is to a chiropractic physician, the claimant may make the change by giving advance written notification to the employer or carrier.

[23] However, since the claimant’s injury occurred after July 1, 1993, this claim is subject to the provisions of Act 796 of 1993. Act 796 amended Ark. Code Ann. § 11-9-514 in relevant part to read as follows:

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)(1) 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. (Underline ours).

[24] The dissent asserts that Section 514 (a)(3)’s “null and void” applies only to individual employers who participate in an established managed care organization. However, we point out, as did the administrative law judge, that the provisions of Act 796 are to be strictly construed. See, Ark. Code Ann. §11-9-704(c)(3). In addition, Ark. Code Ann. § 11-9-1001
provides, in part, that:

In the future, if such things as . . . the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, these things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.

[25] As applied to the present case, the plain language of Section 514(a)(3) does not state that subdivisions (a)(1) and (2) shall become null and void when an employer elects toparticipate in a managed care organization, as the dissent suggests. Instead, the statute provides that subdivisions (a)(1) and (2) shall become null and void following establishment of an Arkansas managed care system. Strictly construing the provisions of Act 796, as we are required to do, we find that subdivisions (a)(1) and (2) became null and void in September of 1995, with the establishment of an Arkansas managed care system. (See, Full Commission Exhibit No. 1, listing Managed Care Organizations certified effective September 1, 1995). Therefore, we find that the administrative law judge’s finding in this regard must be affirmed. [26] In reaching this interpretation of the law, we have also considered the dissent’s assertion that:

Employers and carriers who choose not to participate in a managed care system now have no protection under the change of physician rules. Such a reading is patently unfair. (Underline ours).

[27] The dissent’s comments raise rhetorical questions of “protection” from what and “unfair” to whom? Moreover, we point out that carriers and self-insured employers are protected from excessive medical fees by a Commission fee schedule. See, Ark. Code Ann. § 11-9-517 and Commission Rule 30. Carriers and employers also have the right to have an injured worker independently examined by a physician of the carrier’s/employer’s choice. See, Ark. Code Ann. § 11-9-511 and Thomas Wilsonv. Armstrong Brothers Tools, Full Commission Opinion filed September 1, 1999 (No. E709892). Finally, the claimant has the burden of proving by a preponderance of the evidence that any disputed medical treatment that he may receive is reasonably necessary for treatment of his work-related injury. Seegenerally, Ark. Code Ann. § 11-9-704 and Norma Beatty v.Ben Pearson, Inc., Full Commission Opinion filed February 17, 1989 (No. D612291). We simply fail to glean, in light of these protections, what additional protection the dissent feels the carriers and employers may have gained or lost with respect to the General Assembly’s elimination of change of physician rules for employees of respondents who did not participate in managed care. [28] Because we find that the change of physician provisions of subsections (a)(1) and (2) became null and void in September of 1995, and since there is no evidence in the record to indicate that the respondent has in fact contracted with a certified managed care entity, we also affirm the administrative law judge’s finding that the claimant may seek from any physician that he chooses any additional medical treatment which is reasonably necessary for his compensable injury. [29] The dissent asserts that the claimant has failed to establish that any additional treatment is reasonably necessary for his work-related injury. However, we do not reach this issue in the present case for the following reason. Since this claimant need not petition this Commission to choose his new authorized treating physician, and since he has not yet proposed any course of additional treatment by a specific physician, we find that any determination as to what additional treatment is reasonable would be premature at this time. [30] We note that the dissent has also raised a number of other arguments on behalf of the respondents. The dissent asserts that it was error for the administrative law judge to raise and address the statutory interpretation question discussed above. The dissent alternatively asserts that the claimant should be bound by the Form N that he signed after his injury. We are not persuaded by either of the dissent’s arguments for the following reasons. Obviously, in order to determine what statutory standard for a change of physician, if any, applies to the present case, the administrative law judge had to review and interpret the applicable statutory language in Ark. Code Ann. § 11-9-514. Consequently, the circumstances in the present case are distinguishable from the circumstances in Boyette v.Potlatch, Full Commission Opinion filed April 15, 1999 (E219256) cited by the dissent. To the extent that the dissent seems to suggest that the claimant waived his rights under the applicable workers’ compensation law, and acquiesced to change of physician rules contained on Form N, we point out that the Form N was signed after the claimant’s injury (not before), and we point out that the briefs made clear that this claimant and this respondent were not properly apprised of the claimant’s rights under the law prior to being so advised by the administrative law judge in his February 16, 1999 opinion. Under these circumstances, we see no basis to conclude, as the dissent and the respondent suggest, that the claimant has knowingly waived his rights under the law after his injury by signing a Form N that mis-stated the claimant’s rights under Act 796 of 1993. [31] Finally, we point out that recently enacted Act 1167 of 1999
(approved April 6, 1999) has substantially amended Ark. Code Ann. § 11-9-514, to provide in relevant part as follows for new petitions for a change of physician subject to the amendments of Act 1167:

(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:
(iii) Where the employer does not have a contract 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 change of physician, to a physician who must either be associated with any 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 physician associated with any managed care entity certified by the Commission 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 any managed care entity certified by the Commission.

[32] However, since the provisions of Act 1167 were clearly not in effect when the claimant’s injury occurred or when the claimant petitioned the Commission for a change of physician, we note that the amendments of Act 1167 have no application to the present claim regardless of whether the amendments of Act 1167 are construed as “procedural” or “substantive”. See, Popeye’sFamous Fried Chicken v. Willis, 7 Ark. App. 167, 646 S.W.2d 17
(1983); Continental Grain Co. v. Miller, 9 Ark. App. 317, 659 S.W.2d 517 (1983); Alexander v. Lee Motor Freight, 15 Ark. App. 41, 689 S.W.2d 3 (1985); Sterling Stores v. Deen, 16 Ark. App. 36, 696 S.W.2d 784 (1985). [33] Therefore, for the reasons discussed herein, we affirm the administrative law judge’s decision, and we grant the motion of claimant’s attorney to withdraw as counsel hereafter. [34] For prevailing 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). [35] IT IS SO ORDERED. [36] _______________________________
ELDON F. COFFMAN, Chairman _______________________________ PAT WEST HUMPHREY, Commissioner [37] Commissioner Wilson dissents. [38] CONCURRING AND DISSENTING OPINION
[39] I concur with the majority opinion finding that claimant’s attorney’s motion to be relieved as counsel should be granted. I also concur with the finding that claimant’s attorney is entitled to an attorney’s fee for prevailing on appeal since claimant’s attorney provided valuable services on appeal prior to the granting of the motion to be relieved as counsel. However, I respectfully dissent from the majority’s opinion finding that claimant is entitled to seek medical treatment from any physician he selects for his compensable injury. Based upon my de novo
review of the entire record, I find that the parties did not raise and did not develop the issue of the effect of managed care on the change of physician rules. I further find that the evidence presented fails to establish that respondent has implemented or elected to participate in a managed care system, so Ark. Code Ann. § 11-9-514(a)(3) is not applicable to this claim. Finally, I find that claimant has failed to show that the treatment requested for a change of physician is reasonable and necessary medical treatment related to his compensable injury, nor has he shown a compelling reason or circumstance justifying a change of physician. [40] On the facts in this case as outlined in the majority opinion, it logically follows that if claimant’s requested change of physician is for the treatment which is not reasonable and necessary, then a compelling reason or circumstance for a change of physician does not exist. As noted by respondent, the treatment recommended by the unidentified physicians is not related to claimant’s compensable injury rather, the recommended treatment is meant to address claimant’s degenerative disease. Thus, the proposed treatment is not for claimant’s compensable injury. Accordingly, I find that claimant has failed to prove by a preponderance of the evidence that additional medical treatment, regardless of the provider, is reasonable and necessary medical treatment related to claimant’s compensable injury. [41] Both Dr. Williams and Dr. Wilson have examined the claimant and reviewed his diagnostic test studies. Both have concluded that claimant is not a surgical candidate. When I weigh the opinions of these two physicians whose reputations and experience are well known to this Commission against a medical report from an unidentified physician with an unidentified clinic, the reputation and experience of which is unknown to this Commission, I find that the greater weight of the credible evidence does not establish that yet another medical opinion is reasonable and necessary medical treatment. Dr. Wilson and Dr. Williams have established a physician/patient relationship and, in my opinion, a change at this point would be counterproductive to claimant’s care and would not result in reasonable and necessary medical treatment. [42] The Administrative Law Judge and now the majority have found that claimant may seek medical care from any physician he chooses since they find that the change of physician rules in Ark. Code Ann. § 11-9-514(a)(1) (2) are null and void. Although I find that the decision of the Administrative Law Judge must be reversed since the requested treatment, regardless of the provider, is not reasonable and necessary medical treatment related to claimant’s compensable injury, I feel compelled to address the finding of the majority that the change of physician rule set forth in Ark. Code Ann. § 11-9-514(a)(1) (2) are null and void. As previously mentioned, the parties did not present any evidence regarding the effect of the null and void language in Ark. Code Ann. § 11-9-514(a)(3). The Administrative Law Judge found that a managed care system went into effect in September of 1995. However, neither party presented evidence regarding the status of a managed care system in Arkansas. The Administrative Law Judge even found that respondent did not present evidence of joining or being a participant in a managed care system. The majority has conveniently remedied this evidentiary flaw by admitting WCC Advisory 95-4 into evidence on its own motion. Nevertheless, it was not evidence before the Administrative Law Judge. Furthermore, WCC Advisory 95-4 merely identifies when certain managed care organizations were certified. It does not prove the establishment of a managed care system. Without evidence in the record of the establishment of a managed care system in Arkansas, I cannot join in the majority opinion. [43] Ark. Code Ann. § 11-9-514(a)(3) relied upon by the Administrative Law Judge provides:

Following the 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. . .

[44] In this regard, Ark. Code Ann. § 11-9-508(d) provides:

For the purpose of establishing and implementing a system of managed health care, the Commission is authorized to:
(1) Develop rules and regulations for the certification of managed care entities to provide managed care to injured workers; . . .

[45] As I interpret these two sections, it is my opinion that in order to invoke the null and void language, the parties must present evidence of the establishment of a managed care system in Arkansas of which the respondent is a participant. Commission Rule 33 provides for the implementation of a voluntary managed care program and it mimics the change of physician rules set forth in Ark. Code Ann. § 11-9-508(d)(5) for participants in managed care organization. To read these two statutes together with Rule 33 as the Administrative Law Judge and now the majority have done would, in my opinion, render an absurd result. The majority opinion has made change of physician regulations now only applicable for those employers and carriers who have contracted with a managed care organization or who have become certified as an internal managed care provider. Employers and carriers who choose not to participate in a managed care system now have no protection under the change of physician rules. Such a reading is patently unfair. Under the majority interpretation a claimant may now doctor shop until he finds one willing to cater to the claimant’s desires all at respondent’s expense. [46] My interpretation of these two statutes require the development of a managed care program (Ark. Code Ann. § 11-9-508), and once this program is developed, the respondent must prove that it has established a managed care system provided for in Ark. Code Ann. § 11-9-514 for its employees (11-9-514). Once this has been shown, the old change of physician rules set forth in § 11-9-514(a)(1) (2) are null and void as to these parties and they are now governed by the change of physician rules and regulations for managed care participants. [47] No evidence was introduced at the hearing regarding when a managed care system was established in Arkansas. The parties did not develop the evidence with regard to the managed care system which many intended to be mandatory after the passage of Act 796 which would obliterate need for the old change of physician rules, and the subsequent voluntary managed care system which is presently in effect today. Moreover, the parties did not develop the evidence with regard to whether this respondent is a managed care participant. We have previously found that when the Administrative Law Judge rules on an issue not argued by the parties and which was not developed at the hearing level, this Commission will not consider the issue on appeal. Boyette v.Potlatch Corporation, Full Commission Opinion filed April 15, 1999 (E219256). [48] Finally, even with the majority finding that the statute with regard to the old change of physician rules is null and void, a finding which I do not make, I find that Form AR-N signed by claimant on July 9, 1997, and which was introduced into evidence binds claimant to the change of physician procedures set forth on this form. Although respondents’ exhibit is only a reproduction of the front of the form bearing claimant’s signature, this exhibit states on the line beside claimant’s signature “(see additional information on backside of form)”. In addition, the revised 7/1/93 Form AR-N signed by claimant contained a section entitled “EMPLOYEE’S NOTICE — VERY IMPORTANT” which is detached from the form and supposed to be retained by the employee. This section provides:

Regarding claims for work-related injuries or illnesses which are covered by the Arkansas Workers’ Compensation Law, you are hereby advised that A.C.A. 11-9-514 explains the employer’s and employee’s rights and responsibilities with respect to medical care and treatment. Basically, Arkansas statute gives the employer or the employer’s insurance company the right to choose the initial treating physician to provide medical care to the employee.
Except for emergency treatment, after you have received this notice, your employer or employer’s insurance company will not have to pay for your medical expenses if you change physicians without their permission unless you have followed these rules:
1. If your employer or employer’s insurance company has selected the first physician who treats you, you have the right to ask, one time only, the Workers’ Compensation Commission to approve a change to another physician. If the Workers’ Compensation Commission approves a change of physician, the Commission shall determine the second physician and not be bound by the recommendation of you, the employer or the insurance company. However, if the change you desire is to a chiropractic physician, optometrist or podiatrist, you may make the change after giving written advance notification to your employer or the employer’s insurance company.
2. If you have selected the first physician who treats you, the Workers’ Compensation Commission will not approve a change to another physician at the expense of your employer or employer’s insurance company unless there is a compelling reason or circumstance justifying the change.

[49] The fact that claimant argued before the Administrative Law Judge that he knew he had sought unauthorized treatment for which he would be responsible and the fact that claimant was not seeking reimbursement for the unauthorized treatment, demonstrates that claimant was aware of these change of physician rules contained on Form N. [50] This Commission is vested with rule-making authority. Specifically, Ark. Code Ann. § 11-9-205(a)(1)(A) states:

For the purpose of administering the provisions of this chapter, the Workers’ Compensation Commission is authorized: to make such rules and regulations as may be found necessary. . .

[51] Form AR-N bears the rules and procedures established by this Commission with regard to a change of physician. Claimant was aware of these procedures as represented by his signature on the form and his argument before the Administrative Law Judge with regard to the responsibility for unauthorized medical treatment. Whether the statutory provisions with regard to a change of physician are null and void, the change of physician procedures adopted by this Commission and as reflected on the AR-N received by the claimant are legally binding rules. Consequently, I find that claimant was bound by the change of physician rules and procedures contained on Form AR-N. Therefore, I find that in order to be entitled to a change of physician, claimant bore the burden of proving that the requested change was justified if respondent selected the initial physician or warranted by compelling reasons or circumstances if claimant selected his initial physician. As set forth above, it is my opinion that the requested treatment was not reasonable and necessary medical treatment related to claimant’s compensable injury; thus, it is my opinion that a change of physicians is not justified and there are no compelling reasons or circumstances for a change of physician. The evidence reflects that claimant has received more than adequate medical care from at least three specialists, an anesthesiologist, a neurosurgeon, and an orthopedic surgeon. Dr. Williams and Dr. Wilson are highly reputable physicians who are well known to this Commission. Both of these specialists have physically examined the claimant, reviewed his diagnostic test results and concluded that claimant is not a surgical candidate. Although claimant has been presented with an opposing view from an unidentified physician from an unidentified clinic on an unidentified medical report, I cannot find that claimant has presented credible evidence of the compelling reason or circumstance justifying a change of physician outside the treatment he is presently receiving at respondent’s expense for yet a third, or fourth opinion. [52] Accordingly, for those reasons set forth herein, I find that claimant has failed to prove by a preponderance of the evidence entitlement to a change of physician or that a change of physician would result in the rendering of reasonable and necessary medical treatment. Accordingly, I respectfully dissent from the majority opinion. [53] _________________________
MIKE WILSON, Commissioner