CLAIM NO. E400453
RICHARD D. SMITH, EMPLOYEE, CLAIMANT v. AMBULANCE TRANSPORT SERVICE, INC., EMPLOYER, RESPONDENT and COMMERCIAL UNION INSURANCE CO., INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 11, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appears pro se.
Respondents represented by the HONORABLE PETER O. THOMAS, 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 28, 1995. In that opinion and order, the administrative law judge found that the claimant was entitled to additional temporary total disability compensation and that he was entitled to a change of physician. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation and that he failed to prove by a preponderance of the evidence that he is entitled to a change of physician. Therefore, we find that the administrative law judge’s decision must be reversed.
[3] The claimant was employed by the respondent employer as a paramedic. On December 13, 1993, he sustained an admittedly compensable back injury while transferring a patient from a hospital bed to a stretcher. At the time, he experienced a pulling sensation in his low back which was accompanied by a burning and tearing sensation. Although he described these symptoms as “real painful,” he advised his dispatcher that he did not feel that he had seriously injured his back. Nevertheless, the respondent employer advised him to obtain medical treatment for this injury at the emergency room. The record contains a radiology report which indicates that x-rays were taken at the emergency room and that these x-rays did not reveal any abnormality. However, other than a request for a drug screen, the record does not contain any other records of the claimant’s treatment at the emergency room on December 13, 1993. Nevertheless, the claimant testified that he was given medication and released to return to work. However, he also testified that the respondent employer would not allow him to return to work since he was taking prescription medication. The claimant also testified that he returned on December 22, 1993, to the physician who treated him in the emergency room, Dr. Rhonda Mitchell, and Dr. Mitchell caused a MRI to be performed which revealed a small or mild central disc herniation at L4-S1. According to the claimant’s testimony, Dr. Mitchell recommended that he see a neurologist based on the results of the MRI. However, we note that none of Dr. Mitchell’s records were submitted into the record at the hearing. [4] In this regard, we also note that the claimant has attached to his brief a copy of a narrative statement from Dr. Mitchell. In addition, the claimant discusses the results of his medical research and other facts which were not submitted into evidence at the hearing in his brief. However, Ark. Code Ann. §
11-9-705 (c)(1) (1987) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the moving party must show that the new evidence is relevant; that it is not cumulative; that it would change the result of the case; and that he was diligent in presenting the evidence to the Commission. Mason v. Lauck,
233 Ark. 591,
340 S.W.2d 575 (1980); see also, Haygood v. Belcher,
5 Ark. App. 127,
633 S.W.2d 391 (1982). Since the claimant has made no such showing in the present claim, we find that neither Dr. Mitchell’s report nor the claimant’s research and the other facts he discusses which are not included in the record presented at the hearing should not be considered on appeal. [5] In any event, the claimant’s testimony indicates that he attempted to schedule an appointment with two neurologists but was unable to see either physician due to unpaid bills related to prior treatment of a cervical injury. Consequently, the claimant contacted the adjuster for the respondent carrier, and she made arrangements for him to be seen by Dr. Thomas W. Shinder, a physiatrist. Dr. Shinder first examined the claimant on February 14, 1994, and his report indicates that his physical examination revealed completely normal results. Dr. Shinder described his assessment of the claimant’s condition as follows:
Physical examination reveals no evidence of central or peripheral nervous system deficit in that his subjective complaints of pain outweigh the evidence of objective findings.
The most likely diagnoses in this case are either myofascial pain dysfunction disorder versus chronic degenerative disc disease from previous injuries versus issues related to secondary gain. At this time it is extremely difficult to differentiate among the diagnostic possibilities.
[6] Dr. Shinder proceeded with a conservative course of treatment consisting of anti-inflammatory medication, muscle relaxers, and physical therapy. Dr. Shinder also recommended epidural steroid injections, but the claimant rejected this recommendation, apparently based on his own research. Dr. Shinder also declined to prescribe narcotic pain medication for the claimant due to his past history of narcotics dependency. [7] The claimant’s testimony and Dr. Shinder’s records indicate that the claimant soon became dissatisfied with Dr. Shinder. In this regard, the claimant learned after his first visit with Dr. Shinder that he was not a neurologist, and he questioned the medication prescribed by Dr. Shinder, again based on his own research. In addition, there was some controversy over the physical therapist approved by the respondents, and the claimant initially refused to submit to treatment by this physical therapist. The claimant returned to Dr. Shinder on March 14, 1994, and Dr. Shinder’s report indicates the following with regard to communication with the claimant since his previous visit:
February 23, 1994 — The patient phoned stating that he was not going to have lumbar epidural steroid injections until he had more time to think about it.
February 25, 1994 — The patient phoned stating that he was not going to Cleveland Smith for physical therapy, which is who worker’s compensation approved. Spoke with [the adjuster]. She wants him to go to Cleve and related this to Mr. Smith.
March 4, 1994 — The patient phoned this morning wanting a medicine to help him sleep. He is drinking one-half pint of 90 proof whiskey each evening to fall asleep. I noted that I could not prescribe soporifics for an individual with clear alcohol abuse.
March 4, 1994 — The patient was phoned to give my directions and answer. He became angry and wants to be referred to a “more conventional” physician. He was told that he would have to do that through [the adjuster]. The information was given to [the adjuster] and she was in agreement with the treatment plan at this time.
March 14, 1994 — The patient was seen today and he became belligerent with the receptionist regarding having to wait 20 minutes to see the doctor. He demanded that [the adjuster] be phoned. A call was placed to her after he left and she is to speak with Dr. Shinder.
March 14, 1994 — [The adjuster] phoned this afternoon saying she is sending Mr. Smith a letter that he is to be cooperative with the treatment plan.
[8] Dr. Shinder’s March 14, 1994, report also indicates that the claimant was “very upset and difficult to console” when the doctor did see him. In this regard, Dr. Shinder made the following comments:
He stated that he felt that his only viable option at this time was surgical intervention and stated that he wanted to be referred to Dr. Dinkens for evaluation and further treatment. He states to me that after being questioned by myself regarding my “unconventional” treatment regimen, that he felt that a “regular” physician would “give him pain pills” because of the severe discomfort that he is experiencing. I stated to the patient that the purpose of The Pain Care Center was manifold, however, one of the overarching guidelines in our treatment regimen and protocol is to avoid opioid narcotic analgesic agents for nonmalignant pain, as well as attempting to get the patient back to work in the most efficacious and efficient manner as possible, and that we do this with reasonable celerity.
He stated that he felt he made no improvement and had talked to other people in his local region who had had similar treatments at The Pain Care Center and was concerned that because of the failures of these other individuals and their treatment regimens, that he would suffer similar treatment failure. He stated that he was convinced that he would not benefit from any therapeutic interventions made by me or anyone at The Pain Care Center and thus, any further diagnostic or therapeutic interventions made by myself or others at this facility would be uniformly ineffective.
I stated to the patient that given his predilection and prejudice against any potential treatments made available at this Center, that in spite of my vehement opinion to the opposite, if he had decided against getting better, it would not matter how efficacious treatment regimens may be, they were doomed to failure because of his own personal commitment not to get worse and that it was a waste of my time and the workers’ compensation carrier’s money for him to continue at this facility.
[9] However, Dr. Shinder also indicated that the claimant “may return to Clinic if he is willing to participate and commit to getting pain relief and participating in treatment protocol after a reasonable discussion of each treatment option with myself.” On April 4, 1994, Dr. Shinder advised the respondents that the claimant could return to work. In this regard, he made the following comments:
This letter is to confirm that Mr. Smith is able to return to his previous employment. His examination shows no evidence of central or peripheral nervous system disease. Given absence of any evidence of significant physical abnormality, I see no need for any limitations.
[10] The claimant did write the respondent employer and make himself available for work after receiving Dr. Shinder’s April 4, 1994, letter, although he also advised them that he disagreed with Dr. Shinder’s assessment regarding his ability to work. However, he testified that the respondent employer never contacted him. Nevertheless, he did make himself available to other medical transport organizations, and he did receive periodic work for these organizations. [11] The claimant did not see another physician for his back problems until August 25, 1994, when Dr. Earl Peeples, an orthopedic surgeon, performed an independent medical evaluation. Dr. Peeples’ examination did not reveal any evidence of neurological impairment or other abnormality. Consequently, based on his examination and review of the diagnostic studies, Dr. Peeples reached the following conclusions:
This patient has a number of factors to suggest nonphysical basis for a portion of his pain. I do not detect significant neurological abnormality and do not think that the minor disc herniation noted in the midline on MRI is significant. An MMPI test will be obtained. I explained to the patient the reason for this. At present it would appear that he has a lumbar strain. I do not see indication for surgical intervention at present. The patient’s records indicate he has had difficulty with medication in the past and I think use of non-narcotic analgesics are appropriate. . . .
[12] The MMPI was interpreted by Dr. Gary Souheaver, a clinical psychologist, and Dr. Souheaver reached the following conclusions:
. . . Specifically, the profile indicated excessive focus on somatic and health issues; passive-aggressive personality traits; family conflicts; and strong tendencies to misuse or abuse medications and/or ETOH. . . . The profile did not reflect any unusual depression or anxiety. Thus, the profile is very common for persons who unconsciously “convert” emotional stress into physical and somatic complaints. The profile is extremely common for persons with chronic pain complaints — usually back pain.
[13] Dr. Peeples concluded “that the MMPI does provide the appropriate explanation for this patient’s symptoms,” and he opined that the claimant “can resume whatever type of employment he desires without restriction.” [14] The claimant also presented to the emergency room with complaints of back pain on August 30, 1994, and August 31, 1994. The reports of these visits do not reflect any significant physical or diagnostic findings. However, the August 31, 1994, report indicates that the claimant became angry when he was told that he would have to wait 15-20 minutes after receiving an injection and that he initially refused to do so. He returned to the emergency room again on September 6, 1994, but, again, the report of this visit does not reflect any significant findings. [15] Initially, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to a change of physicians. The Arkansas Workers’ Compensation Law requires an employer to provide such medical treatment as may be reasonably necessary for the treatment of a work-related injury received by an employee. Ark. Code Ann. §
11-9-508 (a) (1987). However, Ark. Code Ann. §
11-9-514 (1987) sets forth a strict procedure which must be followed if an injured employee desires to change physicians after treatment is provided, and the employer is not liable for a new physician’s services unless the claimant follows this procedure. American Transportation Co. v. Payne,
10 Ark. App. 56,
661 S.W.2d 418 (1983); Wright Contracting Co. v.Randall,
12 Ark. App. 358,
676 S.W.2d 750 (1984). [16] In the present claim, the administrative law judge found that the change of physician rules did not apply because the respondents failed to prove that they provided the claimant with notice of these rules. In this regard, after notification of a work-related injury, the employer or insurance carrier must deliver to the employee a notice which explains the claimant’s rights and responsibilities regarding a change of physicians. Ark. Code Ann. §
11-9-514 (c)(1) (1987). If this notice is not furnished to the employee, the change of physician rules do not apply, and the employer may be responsible for expenses that are incurred, even though the claimant failed to follow the proper procedure. Ark. Code Ann. §
11-9-514 (c)(2) (1987). This Commission has previously found that respondents bear the burden of proving that the required notice was furnished if they contend that they are not liable for medical expenses because the treatment was not properly authorized under the change of physician rules. Susan Robinson v.Armour Heights Nursing Home, Jul. 31, 1992 (Claim Nos.
D912591); Joyce Clark v. Mar-Bax Shirt Co., Full Workers’ Compensation Commission, Jul. 9, 1991 (Claim No.
D702527);Loyce Valentine v. Wal-Mart, Full Workers’ Compensation Commission, Feb. 7, 1986 (Claim No.
D311200); John Hamptonv. Check-Inn Motel, Full Workers’ Compensation Commission, Aug. 27, 1985 (Claim No.
D405546). However, questions pertaining to delivery of the required notice only arise where respondents contend that they are not responsible for medical treatment actually provided to the claimant. Where the claimant petitions the Commission seeking permission to change physicians, delivery of the notice is not an issue, and the Commission must determine whether the claimant is entitled to a change of physician and, if so, to select a physician, regardless of whether the required notice was furnished. [17] In the present claim, the respondents are not denying liability for medical treatment already received by the claimant. Instead, the claimant is seeking approval for a change of physicians to a neurosurgeon. Therefore, the respondents’ failure to present proof of delivery of the required notice does not affect the applicability of Ark. Code Ann. §
11-9-514 (Cumm. Supp. 1993). [18] Furthermore, we find that the claimant failed to prove by a preponderance of the evidence that a change of physicians should be approved. In this regard, we find that the evidence establishes that the respondents provided the claimant with treatment by Dr. Shinder, and we find that the treatment plan offered by Dr. Shinder was appropriate for the nature of the injury sustained by the claimant. However, we find that the evidence also shows that the claimant absolutely refused to cooperate and participate in Dr. Shinder’s treatment plan. Moreover, the evidence establishes that the claimant’s refusal to cooperate and participate in Dr. Shinder’s treatment plan was based solely on the claimant’s own evaluation of his condition and on his ideas regarding the appropriate mode of treatment. While the claimant asserts that Dr. Shinder’s treatment did not alleviate the pain he was experiencing, the record establishes that the claimant failed to give that treatment an adequate opportunity to be successful, for he was objecting to the treatment approximately eleven days after he first saw Dr. Shinder. Furthermore, the record establishes that the claimant’s dissatisfaction with Dr. Shinder arose as a result of Dr. Shinder’s refusal to prescribe narcotic pain medications. However, the record also establishes that the claimant has a history of dependence on narcotics and a history of alcohol abuse, and, based on this history, Dr. Shinder’s refusal was certainly justified, as Dr. Peeples’ report substantiates. In addition, the record suggests that the claimant has a history of refusing to cooperate with any medical treatment that is not consistent with his preconceived idea of his medical needs. Therefore, there is little probability that treatment by any other physician would be satisfactory to the claimant. [19] In short, the success of any course of treatment for the claimant’s injury is dependent on the cooperation and participation of the claimant, and the evidence in the record suggests that the possibility of the claimant’s cooperation with any physician is subject to doubt. Furthermore, the greater weight of the evidence indicates that the severity of the claimant’s subjective complaints are not consistent with the physical and diagnostic findings contained in the medical records. Moreover, Dr. Shinder has indicated that the claimant can return to him if he is willing to cooperate and participate with the recommended treatment. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that a change of physicians should be approved. [20] We also find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary total disability compensation beyond April 4, 1994. 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 he is within his healing period and totally incapacitated to earn wages. Arkansas State Highwayand 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 he is within his healing period and suffers only a decrease in his capacity to earn the wages that he 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 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his 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 his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is incapacitated from earning wages. MadButcher, Inc. v. Parker,
4 Ark. App. 124,
628 S.W.2d 582 (1982). [21] In the present claim, we initially note that our ability to assess the claimant’s healing period is impeded by the claimant’s refusal to cooperate with the plan of medical treatment provided by the respondents. Nevertheless, we find that the preponderance of the medical evidence indicates that the claimant sustained a relatively minor low back injury, and we find that the severity of the problems described by the claimant is not supported by the medical findings. Furthermore, we find that the preponderance of the evidence establishes that his underlying condition had stabilized and that nothing would improve that condition at least by the time he was released by Dr. Shinder to return to work on April 4, 1994. Therefore, we find that the claimant’s healing period had ended by April 4, 1994. [22] In addition, we find that the claimant failed to prove by a preponderance of the evidence that he was incapacitated from earning as a result of his injury after April 4, 1994. At that time, the claimant advised the respondent employer that he was willing to return to work, although he also suggested to them that he was still unable to work. However, he also made himself available to a number of other medical transport organizations, and he worked for these organizations whenever work was offered. In fact, he traveled by airplane for one organization with patients to locations as far away as Arizona and South Carolina. Furthermore, the claimant testified that he has submitted employment applications to paramedic organizations all over the state, and he testified that he would accept employment if offered. Therefore, although the claimant asserts that he is physically unable to work, we find that any incapacity to earn currently suffered by the claimant is due to economic or personal factors and not to the compensable injury. [23] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to a change of physicians, and we find that he failed to prove by a preponderance of the evidence that he is entitled to additional temporary total disability compensation. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed. In reaching our decision, we recognize that the provisions of
Act 796 of 1993 apply to this claim. However, this claim would have been decided the same even under the law in effect prior to the effective date of Act 796. This claim is denied and dismissed. [24] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[25] Commissioner Humphrey dissents.