CLAIM NO. E701836
DAVID WOOLFOLK, EMPLOYEE, CLAIMANT v. CITY OF PINE BLUFF, EMPLOYER, RESPONDENT MUNICIPAL LEAGUE WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 11, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDWARD M. OWENS, Attorney at Law, Pine Bluff, Arkansas.
Respondent represented by the HONORABLE J. CHRIS BRADLEY, Attorney at Law, North Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on June 29, 1998, finding that the respondent was not entitled to reimbursement out of a third party settlement for certain medical expenses it had incurred while providing treatment to the claimant. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be reversed.
[3] The claimant sustained an admittedly compensable injury on January 7, 1997. On that date, the claimant, who was doing job-related driving, was injured in an automobile accident. In the accident, the claimant sustained injuries to his neck as well as bumps and bruises on other parts of his body. The respondents eventually paid the claimant some temporary total disability benefits as well as a substantial amount of the claimant’s medical expenses. The record also reflects that the claimant filed a third party tort claim against the party driving the other vehicle involved in the accident. There were stipulations to the effect that this claim had been settled for the sum and amount of $25,000.00; the attorney representing the claimant in that action was entitled to a fee in an amount equal to one third of that settlement; and an additional sum of $57.00 had been incurred as costs in that action.
[4] The record of the hearing was somewhat confused as to exactly what issues were in litigation. However, the only portion of the opinion that was appealed was the administrative law judge’s decision to deny the respondents reimbursement out of the claimant’s third party settlement for medical expenses paid to Dr. John Lytle, a Pine Bluff orthopedist, and to Jefferson Regional Medical Center, the facility that performed a functional capacity evaluation on the claimant. For purposes of this appeal, we are therefore limiting our discussion to matters relating to this issue.
[5] At the outset, we note that the respondents’ request for reimbursement of the above described expenses may be moot. The parties stipulated that the claimant received a $25,000.00 settlement for his third party tort claim. Ark. Code Ann. §
11-9-410(a)(1)(B) provides that a respondent in a workers’ compensation case shall be entitled to a lien of up to two-thirds of the net proceeds of any third party actions after deductions of reasonable cost and collection. In this case, the parties agreed that the cost of collections included the attorney’s fees in the amount of one-third of the settlement plus $57.00 in costs. While there is no clear statement in the record indicating exactly how much the respondents expended in this case, we note that the claimant’s brief contained a statement setting out certain medical expenses which, he alleged, had been paid by the respondents. When the amount of those medical expenses is combined with the amount of temporary total disability benefits paid to the claimant, it appears that the amount of the respondents’ expenditures is substantially more than two-thirds of the net proceeds of the settlement. However, since the statements in the claimant’s brief are not evidence in this case and since we are not certain of the exact amounts being claimed by the respondents, we shall decide this matter based upon the assumption that there is sufficient funds in the claimant’s settlement to fully satisfy the respondents’ lien.
[6] The administrative law judge’s rationale in denying the requested reimbursement was that the treatment the claimant received from Dr. Lytle was not reasonable or necessary and was duplicative of other treatment the claimant had already received. However, we find that the administrative law judge’s decision in this regard was in error and should be reversed.
[7] Apart from seeing Dr. Lytle, the claimant had seen and been treated by multiple medical doctors and had received physical therapy and chiropractic care. None of these treatments resulted in any real improvement of the claimant’s condition. It is also significant that all of the claimant’s treatment up to that time either had been provided by physicians of his choice, or by a doctor he had been referred to by a physician of his choice. Given those facts, we do not believe that it is unreasonable for the respondents to desire that the claimant be seen and evaluated by a physician of their choice.
[8] The obvious purpose for the claimant seeing Dr. Lytle was to determine if the pain management treatment the was appropriate, whether the claimant was at the end of his healing period and, if so, whether the claimant had suffered any permanent impairment as a result of his compensable injury. Dr. Lytle directly addressed those issues in his report of June 17, 1997 and opined that the claimant should undergo a functional capacity evaluation to determine the claimant’s ability to work and to determine the extent that the claimant would be able to use his right upper arm.
[9] The functional capacity examination was performed at Jefferson Regional Medical Center. The evaluation indicated that the claimant had put forth a good effort, did not exhibit any symptom exaggeration or inappropriate illness behavior, and that the claimant was able to work at the medium physical demand level with a 42% functional strength deficit. Obviously, this report directly addressed questions regarding the claimant’s current status as well as the extent of any permanent disability he might have suffered from his injury. These are clearly relevant questions that pertain to the reasonableness and necessity of the claimant’s future treatment as well as the respondents’ liability for future benefits. It is also significant that examinations such as that performed by Dr. Watson, as well as functional capacity evaluations, are routinely performed in similar cases and have generally been found to be reasonable and necessary. We simply do not see any basis for finding that the medical treatment in question was superfluous or otherwise unnecessary.
[10] Finally, to the extent that it has been argued that the Supreme Court’s decision in Franklin v. Healthsource ofArkansas,
328 Ark. 163,
942 S.W.2d 837 (1997) should be applied to workers’ compensation cases, we point out that Ark. Code Ann. §
11-9-410 contains a statutory formula to apply in workers’ compensation cases involving subrogation. Therefore, this Commission is constrained to follow the formula currently contained in Section 410, unless and until that formula is amended by the General Assembly. See, Ark. Code Ann. § 1001 (Repl. 1996). Consequently, we see no basis to conclude that this Commission can apply the Court’s rationale and decision in Franklin to the present case, as the dissent and the administrative law judge seem to advocate.
[11] For the reasons set out above, we find that the administrative law judge’s denial of reimbursement was in error and should be, and hereby is, reversed. We specifically find that the medical treatment, which is the subject of this dispute, are expenses for which the respondents are entitled to be reimbursed out of the claimant’s third party settlement, subject to the limitations set out in Ark. Code Ann. §
11-9-410(a)(1)(B).
[12] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[13] Commissioner Humphrey dissents.
[14] DISSENTING OPINION
[15] I respectfully dissent from the majority opinion finding that respondents are entitled to be reimbursed in accordance with Ark. Code Ann. § 11-9-410(a)(1)(B).
[16] In my opinion, claimant should not bear the costs associated with the Independent Medical Examination and Functional Capacity Examination. Respondents insisted upon the IME and FCE; therefore, they should pay the associated costs. The ultimate effect of the majority’s opinion is to require claimant, and all similarly situated claimants, to bear the costs of respondents’ discovery.
[17] It is indeed unfortunate that we appear to be constrained by the provisions of §
11-9-410. In my view, the subrogation doctrine announced by the Arkansas Supreme Court in Franklinv. Healthsource of Arkansas,
328 Ark. 163,
942 S.W.2d 837
(1997), offers a more equitable resolution of this issue.
[18] PAT WEST HUMPHREY, Commissioner
