CLAIM NO. E709892
Before the Arkansas Workers’ Compensation Commission
ORDER FILED SEPTEMBER 1, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by the HONORABLE BRUCE D. ANIBLE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed and remanded.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on April 1, 1999. In that opinion and order, the administrative law judge appointed Dr. Jim Arnold to perform an independent medical evaluation of the claimant. The respondents assert on appeal that the administrative law judge erred in not directing the claimant to submit to an evaluation by Dr. Mulhollan, as requested by the respondents. [3] This Commission has stated on numerous occasions that respondents have a right to have a claimant examined at the respondents’ expense by a physician of the respondents’ choice.See, Robert Brazil v. Peterson Industries, Full Workers’ Compensation Commission, April 27, 1993 (W.C.C. No. E103721);Wayne Owens v. Whitfield Construction, Full Workers’ Compensation Commission, October 9, 1992 (W.C.C. No. E119453);Judy Kay Alsup v. Baptist Medical System, Full Workers’ Compensation Commission, September 18, 1990 (W.C.C. No. D802879);James E. Wilson v. Crown Home Center, Full Workers’ Compensation Commission, January 27, 1987 (W.C.C. No. D514739). However, this right is qualified. In this regard, Ark. Code Ann. § 11-9-511, which provides the Commission authority to order medical evaluations, states in relevant part:
[4] The Commission file indicates that the claimant is a resident of Farmington, Arkansas, and the hearing in this case was held in Springdale, Arkansas. The respondents seek to have the claimant examined by Dr. Mulhollan in Little Rock, Arkansas. [5] In the present case, we find that the record in this case fails to establish that an examination in Little Rock would bereasonably convenient for the claimant, as required by Ark. Code Ann. § 11-9-511(b). In reaching this conclusion, we note that the respondents’ attorney indicated at the hearing that the respondents intended to pay for the claimant’s lodging in Little Rock, indicating that the respondents anticipated the claimant remaining in Little Rock at least one night. We also note that the claimant will lose $125.00 in wages per day for each day that is required to miss work while away from home. There is no evidence in the record to indicate that the respondents intend to arrange an evaluation on a day that the claimant is scheduled to be off work, and there is no evidence that the respondents propose to compensate the claimant for the $125.00 per day that the claimant would miss work as a result of the proposed evaluation in Little Rock. To the contrary, according to the respondents’ attorney, the respondents propose only to pay the claimant for meals, mileage, and hotel stays. [6] On this record, we find that the respondents have failed to establish that an evaluation in Little Rock would be reasonably convenient for the claimant. Therefore, we find no basis to reverse the administrative law judge and direct the claimant to submit to an examination in Little Rock, as the respondents propose. [7] In our opinion, the respondents have at least two alternatives to have the claimant examined by Dr. Mulhollan. First, Ark. Code Ann. § 11-9-511(c) indicates that the respondents can bring Dr. Mulhollan to a location which is reasonably convenient for the claimant. The claimant has not appealed the administrative law judge’s appointment of Dr. Arnold as an examining physician, and Dr. Mulhollan could, under the statute, participate in an examination performed by Dr. Arnold. However, the statements of claimant’s counsel at the hearing indicate that the claimant is not interested in having an independent medical examination by any physician, and the respondents appear to only be interested in obtaining an examination from Dr. Mulhollan, not Dr. Arnold. In the alternative, the respondents could pay the claimant his lost wages and travel expenses to Little Rock. In the present case, that course of action would appear to eliminate the impediment to Little Rock as being a reasonably convenient location for the claimant’s examination by Dr. Mulhollan. [8] Therefore, after a de novo review of the entire record, we remand this case to the administrative law judge. The parties are directed to advise the administrative law judge within 15 days of receipt of this opinion whether the respondent agrees to reimburse the claimant for lost wages and travel expenses for an examination by Dr. Mulhollan in Little Rock, and whether the claimant agrees to submit to an evaluation under these conditions. The administrative law judge is directed to conduct any additional proceedings that may be necessary consistent with this order. [9] 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). [10] IT IS SO ORDERED. [11] _________________________________(a) An injured employee claiming to be entitled to compensation shall submit to such physical examination and treatment by another qualified physician, designated or approved by the Workers’ Compensation Commission, as the Commission may require from time to time if reasonable and necessary.
(b) The places of examination and treatment shall be reasonably convenient for the employee.
(c) Such physician as the employee, employer, or insurance carrier may select and pay for may participate in the examination if the employee, employer, or insurance carrier so requests.
ELDON F. COFFMAN, Chairman _________________________________ PAT WEST HUMPHREY, Commissioner _________________________________ MIKE WILSON, Commissioner