Opinion
CLAIM NO. F511909
OPINION FILED MARCH 30, 2009
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondent No. 1 represented by HONORABLE BETTY J. HARDY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by HONORABLE DAVID PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant's authorized treating physician was Dr. Harold Chakales, that the respondent's are responsible for all medical expenses including the MRI recommended by Dr. Chakales, that the respondent's refused to authorize continued treatment under Dr. Chakales' care but rather authorized treatment by Dr. Barry Baskin in contravention of the June 28, 2007, Change of Physician Order and that the respondent's were in contempt of the Change of Physician Order and fined in the amount of $10,000 pursuant to Ark. Code Ann. § 11-9-706(b). Based upon our de novo review of the record, we find that the decision of the Administrative Law Judge should be and hereby is reversed. Specifically, we reverse the finding that the claimant was entitled to treatment by Dr. Harold Chakales in the form of an MRI. We also reverse the finding that the respondent's were in contempt of the Change of Physician Order and assessing a fine of $10,000. A review of the relevant evidence in this case demonstrates that the respondents were not in contempt of the Commission's Change of Physician Order. The claimant was severely injured in an admittedly compensable accident on October 27, 2005. The claimant sustained multiple injuries including injuries to his ribs on both sides, a shattered artery in his heart, punctured lung, broken scapula, and compression fractures in the L1, L2, L3 vertebrae of his back. The claimant received extensive treatment. By early 2007, Dr. Barry Baskin was the physician who was managing the claimant's pain and Dr. Neal Beaton was managing the claimant's pulmonary problems. Dr. Baskin assessed the claimant as being at the end of his healing period on May 4, 2007, and found him to be permanently and totally disabled. The respondent's accepted the claimant as being permanently and totally disabled.
The claimant requested and received on June 28, 2007, a Change of Physician Order from the Medical Cost Containment Division of the Commission. It is clear that the Change of Physician to Dr. Chakales was for treatment of the claimant's spinal injury only and for no other purpose. The Order specifically stated:
A change of physician is hereby approved by the Arkansas Workers' Compensation Commission for Billy Dotson to change from Dr. Barry Baskin to Dr. Harold Chakales, #5 St. Vincent Circle, Suite 300, Little Rock, AR, Telephone Number (501) 664-1500. CLAIMANT NEEDS TO BRING X-RAYS AND MRIs RELATED TO HIS SPINAL INJURY TO HIS APPOINTMENT WITH DR. CHAKALES . (Emphasis in original.)
The claimant was additionally granted a change of physician for treatment of his pulmonary injury from Dr. Baskin to Dr. Christopher John on that same date. The Order specifically state:
A change of physician is hereby approved by the Arkansas Workers' Compensation Commission for Billy Dotson to change from Dr. Barry Baskin to Dr. Christopher John, 11321 I-30, Suite 30, Little Rock, AR, Telephone Number (501) 407-0200. CLAIMANT NEEDS TO BRING THE MOST RECENT CHEST X-RAY OR CT SCAN WITH INTERPRETATIONS RELATED TO HIS PULMONARY INJURY TO HIS APPOINTMENT WITH DR. JOHN . (Emphasis in original.)
The claimant was also granted a change of physician for treatment of his cardiac problems from Dr. Baskin to Dr. Jeffrey Stewart on July 10, 2007. The Order specifically stated:
The Change of Physician Order issued by the Arkansas Workers' Compensation Commission Medical Cost Containment Administrator on June 28, 2007, in the above-referenced claim is hereby amended to show that the claimant has been granted a change of physician from Dr. Barry Baskin to DR. JEFFREY STEWART for treatment of his workers' compensation injury. CLAIMANT NEEDS TO BRING MEDICAL RECORDS AND X-RAYS RELATED TO HIS CARDIAC PROBLEMS TO HIS APPOINTMENT WITH DR. STEWART . (Emphasis in original.)
It is apparent from reading these Change of Physician Orders that Dr. Barry Baskin was to remain the claimant's treatment physician for all conditions not specifically noted in the change of physician orders. Furthermore, a change of physician only requires the respondent's to pay for the initial evaluation. The Court of Appeals has held that where the claimant has exercised his absolute, statutory right to a one-time change of physician pursuant to Ark. Code Ann. § 11-9-514(a)(3)(A)(ii), the respondents must pay for the initial visit to the new physician in order to fulfill their obligation to provide adequate medical services under the provisions of Ark. Code Ann. § 11-9-508. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003), Collins v. Lennox Inc. Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002). The Commission is charged with the authority to determine whether any recommended treatment from this initial visit is reasonable and necessary in connection with the compensable injury. The change of physician does not guarantee that any and all treatment recommended by the new physician will be covered as it is not known whether such treatment will be reasonable and necessary medical treatment until after that initial visit. Ark. Code Ann. § 11-9-508.
After the Change of Physician Orders were entered, the claimant was seen by Dr. Chakales on July 11, 2007. Dr. Chakales reviewed the claimant's medical records. He reported that the claimant had pain complaints but not numbness or tingling in his arms and legs. He also noted the claimant had scoliosis and degenerative disc disease in his lumbar spine. On July 27, 2007, after seeing the claimant again, Dr. Chakales wrote in a letter:
Mr. Dotson returned to see me today and primarily complains of chronic back pain up and down his spine, with pain in his tailbone and bilateral knee pain. He denies any numbness or tingling. He states his problems are with his back but he has trouble breathing. Physical examination shows physical findings are unchanged. His orthopedic diagnoses include:
1. Compression fractures, L1, L2, L3.
2. Severe trauma to the ribs with healed rib fractures. He continues to have pain over the right side of the ribcage.
I do not believe there is any active treatment indicated for Mr. Dotson at this time, but I feel he is unable to work and most likely is permanently totally disabled. I agree with Dr. Baskin in this regard. I would recommend scheduling him for an MRI of the lumbar spine.
The respondents submitted the MRI request for preauthorization pursuant to Commission Rule 30. Rule 30 states in pertinent part:
Preauthorization is required for all nonemergency hospitalizations, transfers between facilities, and outpatient services expected to exceed $1,000.00 in billed charges for a single date of service by a provider. A denial decision for payment for any type of health care services and/or treatment resulting from a utilization review, as opposed to a determination of whether such service or treatment is related to a compensable injury, shall only be made by an Arkansas certified private review agent. The Arkansas Department of Health Utilization Review certification number is required upon request. See Arkansas Workers' Compensation Hospital Inpatient Fee Schedule Part III for procedures for requesting preauthorization. Upon emergency admission, notice must be given to the carrier within 24 hours or for the next business day.
This section of Rule 30 involves two separate bill paying requirements: (1) preauthorization for any services expected to exceed $1,000.00; and (2) certification by the Arkansas Department of Health for utilization review agents. It is apparent from the testimony of the adjuster that a utilization review was performed as part of the preauthorization requirement. However, this is not a requirement for preauthorization. Whether or not a specific test, and in this case it was an MRI, was reasonable and necessary is not the requisite threshold in determining preauthorization. Rule 30 only requires that the MRI, if it exceeds $1,000.00, be preauthorized. Preauthorization does not presume that the service is reasonable and necessary. A test can be authorized by the respondent carrier but payment is not guaranteed. This section is merely a notice provision to the carrier of the service and that the service is authorized. It does not guarantee that the service is reasonable and necessary for treatment of a claimant. Simply put, preauthorization and a determination of whether treatment is reasonable and necessary are mutually exclusive. In this case, the MRI was, merely a suggestion by Dr. Chakales. It is clear that he had nothing further to offer the claimant after seeing him twice and we note that the respondent's paid for both visits. The respondent's could have simply not authorized the MRI and that would have been the end of it. They went a step further and had the utilization review. Although it was not necessary to do so, the result is the same. The MRI is not reasonable and necessary for treatment of the claimant. Accordingly, we reverse the decision of the Administrative Law Judge.
The only issue left to address is the imposition of the $10,000.00 fine for contempt the Administrative Law Judge assessed against the respondents. The award must be reversed. It is crystal clear that the fine is excessive and not warranted in this case.
Ark. Code Ann. § 11-9-706(b) provides:
If any person or party in proceedings before the commission disobeys or resists any lawful order or process, or misbehaves during a hearing, or so near the place thereof so as to obstruct the hearing or neglects to produce, after having been ordered to do so, any book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take oath as a witness, or after having taken the oath refuses to be examined according to law, or refuses to comply with any final order of an administrative law judge or the commission, or willfully refuses to pay an uncontroverted medical or related expense within forty-five (45) days after the respondent has received the statement, then the person or party, at the discretion of the administrative law judge or the commission, may be found to be in contempt of the commission and may be subject to a fine not to exceed ten thousand dollars ($10,000).
The testimony of the adjustor clearly shows that she did not willfully violate an Order of the Commission. The evidence demonstrates that the claimant was granted a Change of Physician to see Dr. Chakales for treatment of his spinal injury. Dr. Chakales had nothing to offer the claimant treatment wise. She offered for the claimant to return to Dr. Baskin, who was the claimant's designated physician for management of his pain in not only his back, but in other areas of his body as well. The respondents should not be held in contempt and fined for trying to provide the claimant with treatment. Although misplaced, the adjustor was following protocol that she felt was required pursuant to Rule 30. The imposition of the contempt award is not appropriate in this case. The actions of the adjustor were far from wilful. Accordingly, the imposition of the fine should be and hereby is reversed.
IT IS SO ORDERED.
________________________ A. WATSON BELL, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner
DISSENTING OPINION
I must respectfully dissent from the majority opinion. After ade novo review of the record, I find that the claimant is entitled to additional reasonably necessary medical treatment, specifically the MRI requested by the claimant's authorized treating physician, and I must respectfully dissent on this issue. Furthermore, I find that the respondent is in contempt of the Commission's Change of Physician Order pursuant to Ark. Code Ann. § 11-9-706(b) and would assess a fine in the amount of $10,000, and must respectfully dissent on this issue as well.
The majority cites Wal Mart v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003) as a basis for denying the MRI recommended by Dr. Chakales, the authorized treating physician assigned to the claimant by the Commission's Change of Physician Order. The majority states:
. . . a change of physician only requires the respondent's to pay for initial evaluation. The Court of Appeals has held that where the claimant has exercised his absolute, statutory right to a one-time change of physician pursuant to Ark. Code Ann. § 11-9-514(a)(3(A)(ii), the respondents must pay for the initial visit to the new physician in order to fulfill their obligation to provide adequate medical services under the provisions of Ark. Code Ann. § 11-9-508. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003), Collins v. Lenox, Inc. 77 Ark. App. 303, 75 S.W.3d 204 (2002).
However, it is important to note that Wal Mart, Inc. v. Brown does not state that a claimant is entitled to only the initial visit. Regardless of whether a claimant has already had the initial visit (or two visits, or three visits), after the Change of Physician Order, the Change of Physician doctor is the authorized treating physician, and if reasonably necessary medical treatment is recommended, the respondent is obligated under § 11-9-508 to pay for that treatment. The respondent cannot subvert the claimant's right to change his authorized treating physician, nor can the respondent deny the claimant additional reasonably necessary medical treatment recommended by the new authorized treating physician merely due to the fact that the respondent has paid for more than the "initial visit." For the majority to allow the respondent to do so is clearly inconsistent with Ark. Code Ann. § 11-9-508, Ark. Code Ann. § 11-9-514(a)(3)(A)(ii), Collins v. Lennox Industries, Inc. 77 Ark. App. 303, 75 S.W.3d 204 (2002) and Wal-Mart Stores, Inc. v. Brown, Supra.
As for the imposition of a penalty for contempt of the Change of Physician Order, Ark. Code Ann. § 11-9-706 (b) states:
If any person or party in proceedings before the commission disobeys or resists any lawful order or process, . . . or refuses to comply with any final order of an administrative law judge or the commission, then the person or party, at the discretion of the administrative law judge or the commission, may be found to be in contempt of the commission and may be subject to a fine not to exceed ten thousand dollars ($10,000).
Here, the claimant sustained severe injuries on October 24, 2005, within the course and scope of his employment. The claimant requested and was granted a change of physician relative to his orthopedic injuries from Dr. Barry Baskin to Dr. Harold Chakales. On June 28, 2007, a Change of Physician Order was entered by the Medical Cost Containment division of the Commission, pursuant to Ark. Code Ann. § 11-9-514(a)(3)(A)(ii), granting the claimant's one time change of physician. Pursuant to this Order, the claimant was seen by Dr. Chakales on two separate occasions. Dr. Chakales prescribed medication for the claimant, recommonded a repeat diagnostic study as well as a follow-up visit. While the respondent acknowledged the claimant's need for additional medical treatment, in the form of prescription medication, it refused to authorize the claimant's return visit to Dr. Chakales for testing and treatment. The respondent informed the claimant that it would not authorize additional treatment by Dr. Chakales, but would allow him to return to Dr. Baskin. This action by the respondent can only be characterized as flagrant contempt of the Change of Physician Order. It is clear from the evidence of record, that the actions of the respondent, approved by the majority, render the Change of Physician Order meaningless. The majority is allowing the respondent to again direct the claimant's medical treatment, in direct contravention of the claimant's absolute right to a Change of Physician. This is unacceptable. Should the majority decision in this case withstand judicial scrutiny, Change of Physician Orders will be reduced to nothing more than exercises in futility, subject to being complied with or ignored at the whim of respondents. Therefore, I find, as did the Administrative Law Judge, that the respondent is in contempt of the June 28, 2005 Change of Physician Order and should be fined ten-thousand ($10,000) dollars.
For the aforementioned reasons I must respectfully dissent.
____________________________ PHILIP A. HOOD, Commissioner