CLAIM NO. E709782
HULDA M. STEPHENSON, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT, Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 14, 1999
Upon review before the FULL COMMISSION, 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: Reversed
[1]
OPINION AND ORDER [2] The respondent appeals a decision of the Administrative Law Judge filed on September 24, 1998, finding that respondent denied the compensability of the claimant’s need for medical treatment subsequent to July 21, 1997, and thus the change of physician rules are inapplicable and finding that the medical treatment claimant received from Dr. Tanner, Dr. Bishop, and Dr. Williams for a herniated disc in her cervical spine is causally related to claimant’s compensable injury. Based upon our de novo
review of the entire record, we find that claimant has failed to meet her burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed. [3] At the hearing held on June 17, 1998, claimant contended that she is entitled to additional medical treatment, specifically, treatment provided by Dr. Ron Tanner, Dr. Terrell Bishop, and Dr. Ron Williams. In addition, claimant contended that she is entitled to temporary total disability benefits from the date she was taken off work by Dr. Bishop and continuing until she was released from surgery by Dr. Williams with a 9% physical impairment rating to the body as a whole. Finally, claimant contended that she is entitled to the 9% permanent impairment rating as assigned by Dr. Williams for her herniated cervical disc for which she underwent surgery. Conversely, respondent contended that the treatment for which claimant now seeks payment was not authorized medical treatment and claimant failed to pursue a proper change of physician from Dr. Lytle. In addition, respondent controverted claimant’s entitlement to the requested temporary total disability benefits claiming that work was made available to claimant at all times within her restrictions. Finally, respondent controverted claimant’s entitlement to the permanent impairment rating requested. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent that claimant has failed to prove entitlement to the benefits requested, but not necessarily for those reasons espoused by respondent. [4] Claimant sustained an admittedly compensable injury to her shoulder on January 2, 1997, when she was struck in the shoulder area by several boxes which had fallen off of an elevator from the second floor. Claimant described these boxes as very large boxes which were labeled as having the capacity to hold 2,000 pounds. In her deposition, and again at the hearing, claimant explained that the boxes were not full and probably weighed somewhere between 70 and 80 pounds. A review of the record reveals that after the accident claimant was taken by one of the plant nurses to Health Care Plus in Pine Bluff. The medical records from Health Care Plus were not introduced into evidence. Claimant testified that after receiving treatment from Health Care Plus she returned to respondent employer and was eventually told to go home. According to claimant’s testimony, after she returned to the plant, she did have a brief conversation with Felita Wilkes, the workers’ compensation coordinator for respondent. The record reflects that when claimant returned to work she was given a light-duty work assignment. Claimant described this work as folding smocks and passing out smocks in the supply room. After claimant complained that folding the smocks aggravated her condition, this duty was eliminated from her job. [5] Claimant testified that because of her continued complaints of pain and due to stomach difficulties she experienced from taking Ibuprofen for her pain, claimant sought treatment from Dr. Ron Tanner on her own accord. Dr. Tanner apparently requested a bone scan which disclosed the possibility of a compression fracture. After presenting Dr. Tanner’s finding to respondent employer, arrangements were made for claimant to be seen by Dr. John Lytle. Dr. Lytle confirmed the existence of a compression fracture at T9-T10 and released claimant to return to work with temporary restrictions of no lifting, pulling, or pushing or use of her arms over head. On April 7, 1997, claimant returned to Dr. Lytle for a follow-up examination. At that time, Dr. Lytle identified claimant’s condition as a thoracic spine compression fracture and a contusion on the shoulder. Again, Dr. Lytle released claimant to return to work with temporary restrictions of limited activity with no lifting. At that time, Dr. Lytle checked the box on the Tyson Foods’ Referral and Treatment Authorization which states: [6] “Needs to return for follow-up appointment on” “after FCE”. “After FCE” was inserted on the form by Dr. Lytle. [7] Both claimant and Felita Wilkes testified that Dr. Lytle eventually released claimant to return to full duty on a progressive schedule. Ms. Wilkes explained the progressive schedule as keeping claimant on the light-duty work for six hours with two hours of full duty for a one-week period and over the next several weeks slowly increasing claimant’s amount of time with full duties and decreasing claimant’s amount of time on light duty. According to claimant’s testimony after working at full duty, she continued to experience pain and sought additional medical care on her own. [8] In July of 1997, after being examined by Dr. Bishop from a referral from her family physician, Dr. Ron Tanner, Dr. Bishop provided claimant with a light-duty release. Claimant testified that respondent refused to acknowledge the light-duty release and she returned to Dr. Bishop and eventually received an off-work slip from him. After receiving the off-work slip, claimant obtained a personal leave of absence. [9] Claimant’s testimony and the medical records reveal that claimant was eventually diagnosed with a right-sided disc herniation at C6-7 for which she underwent a cervical fusion by Dr. Ron Williams. [10] The burden of proof rests upon the claimant to prove the compensability of her claim. Ringier America v. Comles,
41 Ark. App. 47,
849 S.W.2d 1 (1993). There is no presumption that a claim is compensable, that the claimant’s injury is job-related or that a claimant is entitled to benefits. Crouch Funeral Home v.Crouch,
262 Ark. 417,
557 S.W.2d 392 (1977); O.K. Processing,Inc. v. Servold,
265 Ark. 352,
578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. §
11-9-704(c)(2) (Repl. 1996). In determining whether a claimant has sustained her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. §
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). [11] Ark. Code Ann. §
11-9-514 establishes the procedures which must be followed if the injured employee desires a change of physician. This section provides in pertinent part:
(a)(2)(A) If the employer selects a physician, the claimant may petition the Commission one 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 the claimant or respondent.
[12] While this sub-section does not require a compelling reason or circumstance justifying a change when the employer selects the physician, this Commission has previously found that a change of physician even where the employer makes the initial selection will not be automatically granted merely because the claimant requests the change. The Legislature’s use of the phrase “. . . if the Commission approves the change . . .” clearly contemplates the Commission will retain discretion to review petitions for a change of physicians 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 physicians. See, ShirleyCeratto v. Pentear Industries, Full Commission Opinion filed January 9, 1992 (
D912632); Ronald Chapman v. Bill Bland Trucking, Full Commission Opinion, filed October 22, 1991 (
D903638), andRose Maples v. Accurate Plastic Moldings, Full Commission Opinion filed June 26, 1996 (
E504344). [13] In order to provoke the provisions of Ark. Code Ann. §
11-9-514, outlined above, respondent must prove that claimant received the appropriate Commission forms which advise her of her rights and duties relating to a change of physician. Homes v.Superior Industries, Full Commission Opinion filed June 1, 1998 (
E115559). At the time of the claimant’s injury, the appropriate form advising claimant of her rights and duties was Commission Form N. Claimant acknowledged at the hearing that the Form N introduced into evidence bore her handwriting at the top and her signature at the bottom. However, claimant denied that she placed the date, “January 2, 1997,” on the form or that she signed the form on the date of her injury. Rather, claimant alleged that she completed the form at the time she was hired, approximately six months prior to her injury. We find claimant’s allegations with regard to when she was provided the Form N to be lacking in proof. Aside from claimant’s own self-serving testimony regarding when she received Form N, she has presented no corroborating evidence to explain why she would have received and signed this form at the time she was hired. In our opinion, it does not seem logical that an employer would insist that a Form N be signed in blank even before an injury ever occurred. The credible evidence of record reflects that claimant received the Form N as it bears her signature and it is dated January 2, 1997, the date of her injury. The evidence further reflects that claimant met with the benefits coordinator after the accident. Accordingly, we find that the evidence is sufficient to bring the change of physician rule into play. Previously this Commission has found that the change of physician rules apply if respondent merely shows that claimant was provided with the form. O.V. Davis v. Planter’s Cotton OilMill, Full Commission Opinion filed October 6, 1997 (
E418762);Decker v. Lowe’s, Full Commission Opinion filed June 5, 1992 (
E102455). Accordingly, we find that claimant was provided with the necessary Commission forms and was aware of, or should have been aware of, the change of physician rules and that such rules are applicable to this claim. It is undisputed that claimant did not follow these rules in seeking the treatment from Dr. Tanner and his referrals to Dr. Bishop and subsequently to Dr. Williams. Claimant sought this treatment on her own outside the authorized treating physician. [14] In finding that the requested treatment was not unauthorized, the Administrative Law Judge found that respondent denied claimant treatment by her authorized treating physician and, consequently, there was no authorized physician to provide the claimant with the appropriate medical care for her compensable injury. When there is no authorized treating physician by respondent, there can be no unauthorized medical treatment within the meaning of Ark. Code Ann. §
11-9-514. Homes v. Superior Industries, supra. However, after reviewing the evidence impartially, we cannot find that there was no authorized treating physician prior to claimant seeking treatment from Dr. Tanner, Dr. Bishop and Dr. Williams. On the contrary, the evidence reveals that claimant has received adequate treatment from Dr. Lytle, her authorized treating physician. Although Dr. Lytle released claimant to return to work on a progressive release schedule, there is no evidence that claimant was at any time prevented or prohibited from returning to Dr. Lytle for further treatment. In this regard, the record is void of any evidence establishing that claimant was ever denied treatment by her authorized treating physician, through the physician himself or by respondent. [15] Ms. Wilkes testified that she offered claimant the opportunity to return to Dr. Lytle after claimant presented to respondent with the light-duty release from Dr. Bishop on July 21, 1997, and that claimant refused. Claimant’s testimony with regard to her conversation with Ms. Wilkes on that date is inconsistent with Ms. Wilkes. Claimant recalled the conversation as follows:
The only thing she told me about Bishop — well, really, no. No, we didn’t, because when I gave her the note, she told me that Dr. Bishop couldn’t put me on light duty, and I said, “What am I supposed to do?” And I said, “Do I stop seeing him? I mean, if I can’t work, I can’t do it. I can’t do what you guys have me doing,” and she told me that Tyson’s was no longer responsible, it had been over 30 days since Dr. Lytle had released me. So I asked her what should I do because I didn’t want to lose my job.
Then I went back to Dr. Bishop that same day and got another note that took me off work completely and they accepted it and gave me a leave.
[16] Felita Wilkes unequivocally denied claimant’s testimony. Ms. Wilkes did acknowledge that respondent would not honor the light-duty releases by unauthorized physicians. Ms. Wilkes explained that it was respondent employer’s policy that when such documents are received from unauthorized physicians, a worker is returned to the authorized physician for follow up. According to Ms. Wilkes, when she was presented with the release by Dr. Bishop on July 21, 1997, she advised the claimant that instead of honoring the light-duty release, she would send the claimant back to Dr. Lytle, the authorized physician. According to Ms. Wilkes, claimant refused the offer stating that she wanted to stay with Drs. Tanner and Bishop. [17] Inasmuch as claimant carries the burden of proof in establishing that respondent controverted her entitlement to further medical care, we find that claimant has failed to meet her burden. In order to find that claimant has met her burden of proof, we would have to give claimant’s characterization of her conversation with Ms. Wilkes on July 21, 1997, the benefit of the doubt, something we are not permitted to do. The Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief.Morelock v. Kearney Co.,
48 Ark. App. 227,
894 S.W.2d 603 (1995). Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that respondent controverted her entitlement to further medical care which would eliminate the change of physician requirements. At the most claimant has only proven that respondent failed to honor a light-duty request by an unauthorized physician. [18] In finding that the change of physician law is applicable to this claim, we further find that claimant has failed to prove by a preponderance of the evidence entitlement to the requested change. The treatment claimant sought from Drs. Tanner, Bishop and Williams is unauthorized medical treatment and the evidence clearly shows that claimant did not follow the proper steps in seeking a change of physician. Therefore, we find that claimant has failed to prove that respondent is responsible for the medical expenses she has incurred at the hands of Dr. Tanner, Dr. Bishop, and Dr. Williams. [19] With regard to claimant’s request for temporary total disability benefits commencing on the date which she was removed from work by Dr. Bishop and continuing through when she was released from surgery by Dr. Williams, we find that claimant has failed to prove that she remained in her healing period and incapacitated from earning wages as a result of her compensable injury or that the treatment for which she underwent surgery is, in fact, related to her compensable injury. First, it is noted that respondent continued to offer claimant work in a position which is characterized as a light-duty position even after claimant was released to full duties. Although respondent argues that since the medical treatment was unauthorized, the corresponding period of disability is likewise not compensable, such is not and has never been the law. Whether the treatment is authorized is irrelevant in determining whether claimant is entitled to temporary total disability benefits. In order to be entitled to temporary total disability benefits, a claimant must prove that she is within her healing period for a compensable injury and totally incapacitated from earning wages as a result of her compensable injury. Ark. State Highway and TransportationDepartment v. Brashears,
272 Ark. 244,
613 S.W.2d 392 (1981). [20] The evidence presented by claimant with regard to her requested temporary total disability benefits concerns the diagnosis, treatment and eventual surgery for a right-sided herniated disc at C5-C6. In this regard, there has been no showing that claimant sustained this injury on January 2, 1997, when she was struck on the shoulder and received a shoulder contusion and compression fracture at T9-T10. Absent from the record is any evidence concerning claimant’s initial complaints following her injury. The first evidence of any problem with regard to claimant’s right-sided herniated cervical disc does not appear until July 21, 1997, almost seven full months after claimant’s compensable injury. In his neurological evaluation dated July 21, 1997, Dr. Bishop recorded the following history:
This patient is a 38-year-old employee at Tyson who is referred by Dr. Tanner. She states she hurt her back on January 2, at Tyson’s when she hit her neck and shoulder. She had a compression fracture at T9-T10. X-rays eventually demonstrated this. She has been on light duty for a few weeks, but if she sits, she still gets pins and needles and sharp pains in her left arm and the shoulder blade area. She has to stand at a table and sort chickens. And she hurts due to working overtime, she says; especially her upper torso and shoulders hurt. She goes to sleep in the left upper arm with no feeling. It tingles down her back, she has sharp pains. Her arms are fairly normal in strength, and her legs are normal in function. Continence is preserved. She has difficulty even doing activities at home that are non-strenuous. She denies radicular pain with a range of motion of the neck.
[21] Despite claimant’s complaints of left-shoulder pain, the diagnostic testing revealed a right-sided herniated cervical disc at C6-7. A central posterior disc herniation was also detected at C4-5. However, the disc herniation at C4-5 was classified as small and did not even warrant exploration during claimant’s surgery for fusion at the lower level. [22] In his examination of claimant on September 4, 1997, Dr. Williams notes:
I think she does have a ruptured disc on the right, but I do not see a good explanation for the left shoulder pain that she is having.
[23] Consequently, after reviewing the medical evidence of record, we cannot find that claimant has proven by a preponderance of the evidence that she sustained a right-sided herniated disc as a result of her work-related incident on January 2, 1997. Although claimant continued to complain of pain in and about her left shoulder area even after she was released to return to work by Dr. Lytle, there is no evidence that the herniated disc which she eventually underwent surgery played any role in her left-shoulder complaints. Furthermore, we find that there is insufficient evidence in the record to arise to a preponderance of the evidence to find without resorting to impermissible speculation and conjecture that claimant suffered a herniated disc at C6-C7 when she was struck about her left shoulder and mid back on January 2, 1997. There is no evidence in the record supporting a finding of any injury to claimant’s cervical spine at the time of the injury. Rather, the evidence only demonstrates a left-shoulder contusion and a compression fracture at T9-T10. The accident or injury description contained in the accident report only describes an injury to claimant’s shoulder. Since the medical records prepared contemporaneously with the accident were not introduced into evidence, we would have to speculate with regard to whether the incident actually affected claimant’s cervical spine. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover,
35 Ark. App. 32,
812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon,
264 Ark. 791,
575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams,
43 Ark. App. 1,
858 S.W.2d 125 (1993). Given the lapse in time between claimant’s incident and the first medical report documenting a right-sided herniated cervical disc and the absence of any documented right-sided cervical or cervical disc related complaints, we cannot find claimant has proven a causal relationship between her admittedly compensable injury and her cervical disc herniation. Therefore, since we find that claimant has failed to prove a causal relationship between her right-sided herniated disc at C6-C7, we find that the period of disability and permanent impairment associated with this treatment is not compensable. [24] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be reversed. [25] IT IS SO ORDERED. [26] _______________________________
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner [27] Commissioner Humphrey dissents. [28]
DISSENTING OPINION [29] I respectfully dissent from the majority opinion finding that the change of physicians rules are applicable to this claim, and claimant failed to prove that her disc herniation at C5-C6 is causally related to her compensable injury of January 2, 1997. In my opinion, claimant is entitled to additional medical benefits, additional temporary total disability benefits, and permanent partial disability benefits. [30] Claimant initially worked as a tub washer for this employer. She stated that after about one month, she moved to the position of “jack driver.” She explained that this job entailed loading and unloading tubs. She stated she was hired in July of 1996. Claimant sustained an admittedly compensable injury on January 2, 1997. The injury occurred when falling boxes struck claimant. The boxes weighed about seventy pounds each. The force of the boxes caused claimant to fall to the ground, and rendered her unconscious. [31] Dr. Lester Alexander initially treated her at HealthCare Plus Clinic. Then, he referred claimant to Dr. John Lytle, the company physician. Dr. Lytle first examined claimant on February 4, 1997. Completing Part “B” of a form called “TYSON FOODS’ REFERRAL AND TREATMENT AUTHORIZATION,” Dr. Lytle diagnosed a left shoulder contusion, prescribed physical therapy, and released claimant to return to regular duty. No follow-up appointment was indicated on the form. [32] Notwithstanding Dr. Lytle’s conclusions, a bone scan conducted on February 7, 1997, at the direction of Dr. Ron Tanner demonstrated a fracture. Claimant initiated treatment with Dr. Tanner after developing stomach problems. Claimant stated she was taking much ibuprofen for pain. She stated that the company nurse was supplying the ibuprofen. Dr. Tanner instructed her to stop taking ibuprofen, instead recommending Tylenol. However, claimant stated that this did not relieve her pain symptoms. She tried another over-the-counter medication for pain; however, she could not tolerate the side effects. [33] Claimant returned to Dr. Lytle on February 19, 1997, and he again completed Part “B” of respondent employer’s referral and treatment form, noting the fracture discovered by Dr. Tanner, and recommending restrictions. He indicated that claimant should return in six weeks for a follow-up examination. Claimant returned to Dr. Lytle on April 7, 1997. He recommended that claimant’s restrictions should continue, and ordered a FCE. With respect to claimant’s return, Dr. Lytle’s instructions are ambiguous for he indicated that she did and did not need to return. [34] Ultimately, Dr. Tanner referred claimant to Dr. Terrell Bishop, a neurologist. Dr. Bishop’s office note dated July 21, 1997, references the referral. The patient history reflects that claimant hit her neck and shoulder at work on January 2, 1997. Dr. Bishop imposed restrictions and ordered diagnostic testing. Claimant testified that Ms. Felita Wilkes, Workers’ Compensation Coordinator, refused to honor the restrictions imposed by Dr. Bishop. Moreover, claimant was advised that since thirty days had lapsed since her last visit with Dr. Lytle, respondent employer would accept no further liability for the treatment of her injury. [35] Claimant returned to Dr. Bishop, and he removed claimant from work. According to claimant, the conversation with Ms. Wilkes occurred on July 21, 1997. Claimant stated that since respondents refused further medical treatment after this date, she had no choice but to obtain treatment on her own. [36] On July 22, 1997, a MRI was conducted. The results of this test were abnormal, and on August 29, 1997, Dr. Bishop referred claimant to Dr. Ron Williams. He performed an anterior cervical fusion on October 16, 1997. On December 2, 1997, Dr. Williams released claimant to return to work. [37] Felita Wilkes testified in behalf of respondents. She stated that it is the responsibility of the company nurse to give injured workers Form AR-N. Respondents failed to offer the nurse’s testimony. In any event, Ms. Wilkes denied advising claimant that respondents would accept no additional liability for her injury since more than thirty days had lapsed since Dr. Lytle last rendered treatment. She testified that on July 21, 1997, she informed claimant that only light duty restrictions imposed by an authorized treating physician would be honored. Therefore, she could not be placed on light duty based on Dr. Bishop’s note. [38] On cross-examination, Ms. Wilkes agreed that she had no personal knowledge with respect to the delivery of claimant’s AR-N. She stated that besides the AR-N, the company has an accident form for the injured employee to complete. Ms. Wilkes testified that when claimant provided the note from Dr. Bishop, she offered her an opportunity to return to Dr. Lytle. However, she stated that claimant declined the offer to return to Dr. Lytle. Based on claimant’s response, Wilkes stated that she initiated a discussion with respect to the procedures for changing physicians. [39] Claimant offered rebuttal testimony, stating that she was not informed on July 21, 1997, that she could return to Dr. Lytle. [40] Respondents argue that claimant received unauthorized medical treatment from Drs. Tanner, Bishop, Simpson, and Williams. It is the position of respondents that Dr. Lytle is claimant’s only authorized treating physician. To support their position, respondents introduced an AWCC AR-N Form dated January 2, 1997. Claimant acknowledged signing the form. However, she specifically testified that she did not insert the date. Pointing to the AR-C Form that she dated, claimant noted the difference in the manner in which the numbers were written. She acknowledged that the “Employer Information” portion of the form was completed. However, she stated that she did not complete this portion of the form. Claimant indicated that she was not given any documents to sign on the date of the accident. Instead, claimant stated that respondent employer furnished the form in July of 1996, when her employment began. [41] Claimant’s credible testimony, which a comparison of the AR-N and AR-C bolsters, supports a finding that she did not date the AR-N. Moreover, the “Accident Information” section of the AR-N is conspicuously blank. I am satisfied that claimant did not complete the “Employer Information” section of the AR-N. Although respondents contended that the treatment claimant received from physicians other than Dr. Lytle was unauthorized, they did not offer the testimony of the company nurse responsible for hand-delivering the AR-N to claimant. Thus, I find that the timing of the AR-N delivery cannot be determined. The rules for changing physicians are inapplicable until and unless the AR-N is delivered in a method authorized by statute. Further, Ark. Code Ann. §
11-9-514 (c) (2) provides: “If, after notice of the injury, the employee is not furnished a copy of the notice, the change of physician rules do not apply.” Construing the statute strictly, I find that respondent employer (or carrier) must deliver the AR-N after the notice of injury. In reaching this conclusion, I specifically reject the argument advanced by respondents that an AR-N delivered before the occurrence of an injury satisfies the statute. In my opinion, logic dictates that furnishing the change of physician rules before an injury would not accomplish the intent of the statute, which is compliance with the rules. Contemporaneous notification encourages such compliance. Respondents cannot show compliance with the statute. Therefore, I find that the rules are inapplicable to this claim. [42] Even if I were to find that respondents notified claimant of the rules for changing physicians, a finding that I do not make, they ceased to apply on July 21, 1997, when respondent employer advised claimant that it would no longer accept responsibility for her work-related injury. Claimant offered persuasive testimony regarding her conversation with Ms. Wilkes. Claimant provided a specific basis upon which additional medical treatment was denied (the 30-day treatment lapse), which lends credence to her account. Moreover, claimant stated that the first time she was advised to return to Dr. Lytle (after providing a note to respondent employer from Dr. Tanner), she did so. There is simply no evidence to support a conclusion that claimant refused to comply with this instruction on July 21st. Claimant continued to receive treatment from Dr. Lytle until he released her. [43] If respondents refuse to provide reasonably necessary medical treatment, the rules for changing physicians may be inapplicable. See, Sharon Nicely v. Emerson Electric, Full Workers’ Compensation Commission Opinion filed March 1, 1994 (
E016114). [44] I also find that claimant’s cervical condition is causally related to her compensable injury. In reaching their decision that claimant’s cervical condition is not causally related to her compensable injury, the majority points to the absence of medical records from claimant’s initial treatment, and the temporal gap between claimant’s original injury, and the first reference in medical records to neck involvement some seven months later. I am not troubled by these matters. Nor am I influenced by Dr. Lytle’s failure to mention claimant’s neck symptoms. The absence of claimant’s first medical report is not dispositive. There are no comprehensive chart notes prepared by Dr. Lytle. Instead, the record contains only forms entitled “Tyson Foods’ Referral Treatment Authorization.” Also, it is clear that Dr. Lytle misdiagnosed claimant’s condition. He initially diagnosed a contusion, but failed to order any diagnostic testing. In the absence of any testing, it is not surprising that Dr. Lytle diagnosed only a shoulder contusion. However, three days after Dr. Lytle diagnosed a contusion, a bone scan ordered by Dr. Tanner showed a fracture. Further, the employer’s referral and treatment authorization forms provide no place for the physician to recite the patient’s history. On July 21, 1997, Dr. Bishop conducted a “Neurological Evaluation.” This is the first evidence of a comprehensive examination, and referenced claimant’s neck involvement. [45] In my view, the evidence supports a finding that claimant’s cervical condition is causally related to her original compensable injury. Claimant was struck from behind with boxes, and she was knocked to the ground and rendered unconscious. She testified that she was struck in the neck, shoulder, and between her shoulder blades. In a chart note dated August 11, 1998, Dr. Bishop stated that: “The patient’s EMG study showed only chronic neurogenic changes, but nevertheless, she is in intense discomfort. Her MRI was reviewed with her. It shows multiple findings including a central C4-5 HNP, a right paracentral osteophyte at C5-6 and a right cervical herniation at C6-7 which shows correlation with her EMG findings. It is true that Dr. Lytle did not detect the presence of the disc herniations. However, Dr. Lytle misdiagnosed claimant’s injury as a mere shoulder contusion. He released claimant twice, once for progressive duty in April of 1997, then to full duty the following month. In my opinion, the fact that the company forms completed by Dr. Lytle fail to mention any cervical involvement is not dispositive with respect to causation. [46] On September 4, 1997, Dr. Williams evaluated claimant. He noted that she had a cervical fusion at C5-6. In a letter to Dr. Bishop, he referred to claimant’s work-related injury. In that regard, Dr. Williams stated that: “She injured herself at work on January 2, 1997 and since then has had pain in the left shoulder and particularly in the right arm where she has numbness of all the fingers. . . .” “I think she does have a ruptured disc on the right but I do not have a good explanation for the left shoulder pain that she is having. . . .” During claimant’s hospitalization, Dr. Williams requested an orthopedic consultation, which Dr. William Hefley performed. A MRI of claimant’s shoulder was done, and the impressions of the radiologist are as follows: “Left shoulder post traumatic AC joint degenerative changes and impingement syndrome.” [47] Claimant also contends that she is entitled to temporary total disability benefits from July 21, 1997 through December 2, 1997. The evidence shows that when respondent employer refused to honor the restrictions he imposed on the 21st, Dr. Bishop excused claimant from work effective July 24, 1997. The record contains a series of off-work slips prepared by Dr. Bishop. For example, on August 29, 1997, Dr. Bishop excused claimant from work until she could see Dr. Williams on September 4, 1997. The letter Dr. Williams wrote to Dr. Bishop on September 4th does not address claimant’s disability status. However, he completed a disability form on October 10, 1997, which indicated that claimant was examined on September 18, 1997, and was to remain off work until after surgery. Dr. Williams estimated that claimant could return to work on about December 2, 1997. [48] Dr. Williams performed claimant’s surgery on October 16, 1997. In a chart note dated December 2, 1997, he stated that claimant’s incision had healed but she was still experiencing pain. With respect to the origin of claimant’s pain, Dr. Williams stated that: “Actually, a lot of her pain is from her thoracic compression fracture.” Therefore, I find that claimant is entitled to temporary total disability benefits from July 21, 1997 through December 2, 1997. [49] Finally, claimant seeks permanent partial disability benefits based on an anatomical impairment rating of 9% to the whole body. Dr. Williams assigned this rating based entirely on claimant’s cervical injury. In doing so, he relied on the AMAGuides. As previously stated, it is my opinion that claimant’s cervical injury is causally connected to her original compensable injury. Therefore, I find that claimant is entitled to permanent partial disability benefits totaling 9% to the whole body. [50] Based on the foregoing, I respectfully dissent. [51] ______________________________ PAT WEST HUMPHREY, Commissioner