TART v. DEPARTMENT OF CORRECTIONS, 1997 AWCC 304

CLAIM NO. E505521

KELVIN TART, EMPLOYEE, CLAIMANT v. DEPARTMENT OF CORRECTIONS, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 24, 1997

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

Claimant represented by CHRISTOPHER ANDERSON, Attorney at Law, Little Rock, Arkansas.

Respondent represented by NATHAN CULP, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed December 19, 1996 finding that claimant sustained a 3% permanent partial impairment rating to the body as a whole and finding that claimant’s notice of change of physician substantially complies with Ark. Code Ann. § 11-9-514(a)(2) with regard to claimant’s change to a chiropractic physician. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof.

[3] Claimant sustained two compensable injuries while employed by respondent. The first injury occurred on April 23, 1993, when he was involved in an altercation with several inmates and was struck or hit about the head and body. Contemporaneous with the incident, claimant completed the appropriate workers’ compensation claim forms indicating that his injury was to his head and face. In addition, claimant received Form A-29 advising him of the appropriate change of physician requirements. On April 24, 1993, claimant reported to the St. Vincent Emergency Room where a history was recorded as follows:

Patient was struck in an altercation and has intra-oral laceration. Denies dental damage no LOC, does have hematoma of occipital scalp. Denies neck, chest, abdomen, ext. injury.

[4] The nurse’s assessment does reveal a history of a laceration inside the mouth as well as a left elbow discomfort and facial edema. Claimant returned to the St. Vincent Infirmary Emergency Room on May 5, 1993, for a follow-up visit. The medical records from that date reveal that claimant was seen for removal of sutures and that claimant had complained of light-headedness after the altercation. However claimant’s neurological examination revealed a normal gait and there was no history of any pain or problems with claimant’s lower back. Again, claimant was seen in follow-up by the St. Vincent Emergency Room staff on May 18, 1993. Claimant’s primary complaint at that time was of dizziness. Again, absent from the medical report are any complaints of back pain or problems associated with or resulting from the trauma. On June 2, 1993, claimant returned to the St. Vincent Emergency Room, however this visit was due to a problem claimant had on his foot. There is no mention of any problems related to claimant’s altercation at work nor were there any complaints of back pain or problems mentioned at that time. [5] Prior to claimant’s April ’93 compensable head injury, claimant had experienced excruciating lower back pain which resulted in hospitalization in February of 1993. On November 17, 1992, claimant was first seen at the St. Vincent Emergency Room with complaints of lower back pain over the past 6 days. At that time, claimant denied any trauma or injury. Claimant received treatment for his back pain and did not return to the emergency room until February of 1993 when he was hospitalized. Due to this flare-up of back pain which was accompanied by a difficulty of voiding, claimant was seen by Dr. Robert Abraham. Dr. Abraham ordered an MRI scan and diagnosed claimant with epidural lipomatosis which is in layman’s terms excessive epidural fat. The MRI scan performed on February 15, 1993, revealed not only epidural lipomatosis with marked narrowing of the thecal sac from L2 through the sacrum, but also, revealed early disc degeneration and minimal disc bulges. [6] After being treated by Dr. Abraham in February of 1993, claimant did not return to any medical care provider with complaints of back pain until January of 1994. On January 28, 1994, the Family Clinic records indicate that claimant was first seen in the clinic on January 23, 1994, with complaints of back pain. The doctor specifically noted that claimant did not have a history of injury associated with the onset of his back pain. Claimant received treatment for his back pain and did not return to the clinic for back pain until June 8, 1994. At that time, the physician recorded claimant’s history of previous back pain episodes and noted that the June 8th episode was “identical to previous episodes of back pain.” Claimant was referred by the Family Clinic to Dr. Richard Peek who first saw the claimant on June 10, 1994. Dr. Peek noted that claimant’s current back pain had been present since May 31, 1994, but noted that claimant’s original onset of back pain began in February of 1993. Dr. Peek removed claimant from work and claimant was placed on a non-pay status beginning June 12, 1994. Dr. Peek eventually referred claimant to Dr. Thomas Ward who managed claimant’s physical therapy and weight loss reduction. [7] The first mention in the medical records claiming that claimant’s lower back problems for which Dr. Peek and Dr. Ward were treating claimant are related to claimant’s April 24, 1993, incident is seen in the Family Clinic records of August 16, 1994. Claimant’s treating physician at that time noted that claimant returned to the Family Clinic and requested to have his back problem “considered” for Workers’ Compensation. The physician further noted that claimant did not describe any back pain at the time of the original incident and deferred any opinion regarding causation to Dr. Peek who has been primarily physician for claimant’s recent episode of back pain. [8] Although claimant was released to return to work by Dr. Peek in September of 1994, claimant returned to Dr. Peek’s office claiming that he was unable to work. A second MRI scan was ordered by Dr. Peek which again revealed the epidural lipomatosis and a very small central disc herniation which the radiologist determined to be of doubtful significance. Claimant was again held off work by Dr. Peek until December 7, 1994. On that date, claimant returned to Dr. Ward’s office alleging to be completely pain free and requested a release to return to work. Dr. Ward complied with claimant’s request. [9] Claimant returned to work for respondent after being released by Dr. Ward. Unfortunately, on February 6, 1995, claimant was involved in a second compensable incident when claimant fell approximately 8 to 10 feet while descending a ladder. As a result of the February 6, 1995, incident claimant sustained a compensable injury to his thoracic and cervical spine. Claimant did not complain of any lower back pain as a result of the incident in February of 1995 and specifically testified that he did not injure his lower back on that date. [10] Claimant was originally seen by the Baptist Medical Center Emergency Room for the February, 1995 incident but was eventually referred to Dr. Richard Peek at claimant’s request. Dr. Peek referred claimant to Dr. Thomas Ward who again took claimant off work from February 20, 1995, through June 27, 1995. Three days after the February incident, claimant received and signed Form AR-N advising claimant of the proper change of physician channels. [11] In the report dated June 27, 1995, Dr. Ward released claimant to return to work finding claimant to have reached maximum medical improvement. In a report on that date, Dr. Ward assigned claimant an 8% permanent impairment rating to the body as a whole based upon “three levels of degenerative disc disease at L4-5 through L5-S1.” Although Dr. Ward had concluded claimant reached maximum medical improvement on June 27, 1995, claimant began receiving chiropractic treatment from Dr. Larry Bell on October 26, 1995. Prior to initiating treatment with Dr. Bell, claimant filed a request for a change of physician; however, all parties agree that the request was merely a generic request for a change of physician and did not specify that claimant requested a change to a chiropractor. Respondent denied claimant’s request to a change of physician and a hearing was subsequently held. At the hearing held on November 5, 1996, claimant contended entitlement to the 8% physical impairment rating assigned by Dr. Ward and a retroactive change of physician to Dr. Bell. [12] It is clear that the impairment rating assigned by Dr. Ward is due to claimant’s degenerative disc condition in his lower spine. It is further clear that claimant did not sustain an injury to his lower back as a result of the February 6, 1995, incident. Therefore, it must be determined whether the 8% impairment rating for claimant’s lower back is causally related to claimant’s April 23, 1993, compensable injury. Based upon our denovo review of the entire record, and without giving the benefit of the doubt to either party, we cannot find that claimant has proven entitlement to any physical impairment rating as a result of his April 23, 1993, injury. [13] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. 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) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. 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). [14] Claimant first noted lower back pain in November of 1992, approximately 5 months prior to claimant’s first compensable injury. Claimant was hospitalized as a result of his back pain in February of 1993, just two months before the compensable injury. At no time during claimant’s treatment of his compensable injury did claimant complain of any problems with his lower back. Claimant’s only complaints following the incident involved claimant’s head and facial pain accompanied with dizziness and some pain in his elbow. Claimant was released from medical care by his treating physician in July of 1993 without any permanent impairment rating. Claimant has not suffered from any further complaints as a result of his head injury. Following the compensable injury, claimant did not complain of any lower back pain until January of 1994, approximately 9 months after claimant’s injury. At that time, claimant reported an onset of back pain with no history of any back injury. Claimant again sought treatment for his back problems in June of 1994. Claimant advised his treating physician that his back pain in June of 1994 was identical to all of his previous episodes of back pain. It was not until August of 1994, after claimant’s leave without pay status had expired, that claimant first sought to associate his current back problems with his incident in April of 1993. In light of claimant’s pre-existing back problems in the form of epidural lipomatosis as well as the MRI scan revealing degenerative disc disease and minimal disc bulges prior to the April 1993 incident in conjunction with claimant’s failure to report any back pain or problems contemporaneous with the incident in April of 1993, we cannot find that claimant has met his burden of proof. Despite claimant’s attempts to connect his lower back problems with his incident in April of 1993, we simply cannot find evidence linking these two exists. Claimant’s lower back pain is due to his epidural lipomatosis. This clearly pre-existed claimant’s incident in April of 1993. [15] With regard to claimant’s change of physician request, we cannot find that claimant has met his burden of proof. Ark. Code Ann. § 11-9-514 establishes the procedures which must be followed if the injured employee later desires a change of physician. This section provides:

(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)(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.
(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.

[16] This provision clearly makes a distinction for change of physicians when the claimant chooses his own physician and when the employer selects the first treating physician. In this case, it is obvious that claimant chose Dr. Peek as his treating physician after the February 6, 1995, incident. Claimant was initially treated for that injury at the Emergency Room at Baptist Medical Center. After seeking treatment from the emergency room, claimant reported to his family physician and requested a referral for insurance purposes to Dr. Richard Peek. It cannot be argued that respondent chose or selected claimant’s initial treating physician. Therefore, subsection (a)(2)(A)(B) is not applicable. The only section which applies to this case is Ark. Code Ann. §11-9-514(a)(1). As set forth above, this section does not provide any shortcuts for a claimant’s desire to change to a chiropractic physician. Rather, when claimant selects his physician, the Commission will 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.” [17] We find that the Administrative Law Judge in finding that claimant’s request to change physician substantially complies with the statutory requirements must have inadvertently overlooked the plain fact that claimant selected his treating physician since the advanced notification requirements to a chiropractor do not apply. Although claimant filed his request for a change of physician, claimant initiated treatment with Dr. Bell prior to the request being granted. Even if we were to find that Dr. Bell’s treatment was reasonable and necessary for the treatment of claimant’s thoracic and cervical spinal injury, we cannot find that Dr. Bell’s treatment was authorized since it was initiated prior to a hearing on claimant’s request to change physicians. We are without authority to grant a retroactive approval on a change of physician request. Patrick v. ArkansasOak Flooring, 39 Ark. App. 34, 833 S.W.2d 790 (1992). Consequently, we find that claimant has failed to meet his burden of proof on the change of physician issue. [18] For those reasons stated herein, we reverse the decision of the Administrative Law Judge. [19] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[20] Commissioner Humphrey dissents.