CLAIM NO. E109375
DUANE TRIGG, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 10, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JOSEPH W. SEGERS, III and LAURA J. McKINNON, Attorneys at Law, Fayetteville, Arkansas.
Respondent represented by EARL “BUDDY” CHADICK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed and adopted, as modified.
[1] OPINION AND ORDER
[2] Respondent and claimant appeal an opinion and order of the Administrative Law Judge filed September 3, 1993.
[3] The Administrative Law Judge entered the following findings of fact and conclusions of law:
1. The Workers’ Compensation Commission has jurisdiction of this claim in which the relationship of employer-employee existed among the parties at which time claimant sustained compensable injuries at a compensation rate of $210.80. The difference between the rate at which benefits were paid, $201.35, and the correct rate of $210.80, has been controverted.
2. Respondents are liable for medical expenses associated with Dr. Rouse. Those expenses have been controverted.
3. Claimant has proven by a preponderance of the credible evidence of record that he is entitled to additional temporary total disability benefits from January 20, 1992, to December 26, 1992. The light duty job as a security guard was within the claimant’s work restrictions.
4. Claimant is entitled to a 10% anatomical impairment rating as assessed by Dr. Rouse and those benefits have been controverted.
5. This claim has been controverted and claimant’s counsel is entitled to the maximum attorney’s fees to be paid in accordance with A.C.A. § 11-9-715, § 11-9-716, § 11-9-801, and WCC Rule 10.
[4] The Administrative Law Judge ended claimant’s entitlement to temporary total disability benefits based on a finding that the position as a security guard became available on December 26, 1992. However, the evidence indicates that the position was available as of December 6, 1992. Therefore, we modify the opinion of the Administrative Law Judge to award temporary total disability benefits from January 20, 1992 to December 6, 1992. [5] We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge’s decision is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed, as modified herein. Specifically, we find from a preponderance of the evidence that the findings of fact made by the Administrative Law Judge, as modified herein, are correct and they are, therefore, adopted by the Full Commission. [6] We therefore affirm and adopt, as modified, the September 3, 1993 decision of the Administrative Law Judge, including all findings of fact and conclusions of law, as the decision of the Full Commission on appeal. [7] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. §
11-9-809 (1987). [8] 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 (b) (1987). [9] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[10] Commissioner Tatum concurs in part and dissents in part.
[11] CONCURRING AND DISSENTING OPINION
[12] I concur with the majority’s opinion that a preponderance of the credible evidence indicates that claimant is entitled to temporary total disability benefits from January 20, 1992 until December 6, 1992. However, I dissent from the decision of the majority finding that respondent is liable for claimant’s medical expenses associated with the treatment rendered by Dr. Rouse.
[13] On or about May 31, 1991, claimant sustained a compensable injury. Medical expenses, temporary total disability benefits and a 10% anatomical impairment rating to the body as a whole and a 4% rating to the lower extremity have been accepted. Claimant maintains he is entitled to additional benefits. Respondent controverts any additional benefits including medical treatment rendered by Dr. Rouse. A hearing was held and an Administrative Law Judge found that respondent is liable for medical expenses associated with Dr. Rouse; that claimant has proven by the preponderance of the credible evidence that he is entitled to additional temporary total disability benefits from January 20, 1992 until December 26, 1992; and, that claimant is entitled to a 10% anatomical impairment rating assessed by Dr. Rouse. [14] Claimants have the burden of proving by the preponderance of the evidence that they are entitled to compensation benefits. Voss v. Ward’s Pulpwood Yard,
248 Ark. 465,
452 S.W.2d 629 (1970). 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. A.C.A. §
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). [15] On appeal, claimant maintains that he is entitled to temporary total disability benefits after December 26, 1992. Based upon this review of the record, the Full Commission finds that claimant has proven by the preponderance of the credible evidence that he is entitled to temporary total disability benefits from January 20, 1992 until December 6, 1992 and no benefits thereafter. I agree with this modification. [16] Claimant reached maximum medical improvement and was offered a job as a security guard by respondent. The job began on December 6, 1992. Claimant attempted to work at this job but voluntarily quit saying that he was physically unable. However, claimant had reached the end of his healing period, was released to return to light duty work. As stated, light duty work was made available on December 6, 1992. [17] On cross-appeal, respondent maintains that claimant is not entitled to medical expenses associated with the treatment of Dr. Rouse. In my opinion, claimant has failed to prove by a preponderance of the evidence that he is entitled to medical treatment rendered by Dr. Lipsmeyer and Dr. Rouse in light of the change of physician rules. Therefore, I dissent from this portion of the majority’s opinion. [18] Respondent acknowledges their affirmative duty to provide reasonable medical care. It is clear in this case that claimant chose the initial treating physicians. Claimant requested to be sent to UAMS. The physicians at UAMS, Drs. Nelson and Geuenwald, became claimant’s treating physician. According to A.C.A. §
11-9-514, before claimant can change doctors, he has the burden of presenting “compelling reasons or circumstances” that justify change of physician. Additionally, we should keep in mind, the Commission does not have the discretion to retroactively approve a change of physician. Wright Contracting Co. v.Randall,
12 Ark. App. 358,
676 S.W.2d 750 (1984) (Cited byPatrick v. Ark. Oak Flooring Co.,
39 Ark. App. 34,
833 S.W.2d 869 (1992)). [19] In my opinion, the care of Drs. Lipsmeyer and Rouse does not constitute an exception to the change of physician rules. The treatment rendered by Dr. Lipsmeyer nor Dr. Rouse was emergency type care. Therefore, claimant’s primary treating physicians were Dr. Nelson and Dr. Geuenwald at UAMS even after claimant went to see Dr. Lipsmeyer. Although respondent did agree to a one time only examination by Dr. Rouse, Dr. Rouse did not become claimant’s treating physician. Claimant was aware of this. He signed an A-29 on June 3, 1991 when he filed this claim. Simply because claimant was not happy with his first choice of physicians and wanted to go to his hometown physician, does not constitute compelling reason or justifiable circumstance. [20] A review of Dr. Lipsmeyer’s notes indicates that when claimant came to him, he was looking for a private physician to perform the surgery the UAMS physicians had recommended. Prior to seeing Dr. Lipsmeyer or Dr. Rouse, claimant was aware that he had a torn rotator cuff and would need shoulder surgery. Apparently, claimant requested or at least suggested that he would like to see a private physician about his shoulder and Dr. Lipsmeyer recommended Dr. Rouse. [21] Respondent accepted Dr. Rouse only for a “one time only” visit. Despite the fact that respondent, through its workers’ compensation coordinator and even its attorney, notified claimant and Dr. Rouse that it was a one time only evaluation, Dr. Rouse in turn recommended and performed shoulder surgery. In my opinion, Dr. Rouse was not in the proper chain of referral to provide workers’ compensation treatment. Additionally, the time sequence of events appears that respondent was not aware that shoulder surgery was being performed until claimant was already in surgery. [22] Claimant chose the UAMS physicians as his primary treating physicians. He has presented insignificant compelling evidence or justifiable circumstances to support a change of physician. Thus, claimant’s treating physicians remain those at UAMS. Therefore, in my opinion, respondent is not liable by any care and treatment rendered by Dr. Lipsmeyer or Dr. Rouse to hold otherwise simply ignores the law and encourages doctor shopping. Therefore, I respectfully dissent from this portion of the majority’s decision. [23] ALLYN C. TATUM, Commissioner