Opinion
CLAIM NOS. E607182 and E614185
OPINION FILED APRIL 3, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK S. "RICK" SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by the HONORABLE ANGELA M. DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
[2] The claimant filed this appeal as a result of an administrative law judge's decision finding that the respondent was not liable for certain medical care the claimant received and that the claimant was not entitled to any permanent disability benefits. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed in part and reversed in part.The claimant suffered two admittedly compensable injuries while acting in the course of her employment with the respondent. These injuries occurred on March 27, 1996, and May 15, 1996. As a result of those injuries, the respondent initiated payment of medical and disability benefits. At present, the dispute centers upon the claimant's entitlement to certain additional medical care provided to the claimant by, and at the direction of, Dr. Rolland Bailey, and the claimant's entitlement to permanent disability benefits based upon an anatomical impairment of 6% to the body as a whole.
In regard to the above issues, the claimant has taken the position that Dr. Bailey was the physician that was initially authorized and designated by the respondent to provide treatment for the claimant. Accordingly, the claimant is of the opinion that the respondent is obligated to pay for the treatment the claimant received from Dr. Bailey and should, further, be obligated for evaluations he directed the claimant receive from Dr. James H. Abraham of the Little Rock Diagnostic Clinic and Dr. Eric Gordon of the Shealy Institute of Springfield, Missouri. The respondent contends that when Dr. Bailey referred the claimant to Dr. Donald Fonte, an orthopedist in Mountain Home, Arkansas, he ceased being an authorized physician and since no referral was made back to him, he was not authorized to treat the claimant. The respondent also contends that there are no objective medical findings to support an award of permanent disability benefits.
The specifics as to how the claimant was injured are not particularly relevant to the resolution of the issues presented in this case. Suffice it to say, the claimant was injured on two separate occasions while moving merchandise from the rear of a Wal-Mart store to the shopping area. As a result of these injuries, the respondent did refer the claimant for treatment to Dr. Rolland Bailey, a general practitioner in Flippin, Arkansas. Dr. Bailey later referred the claimant to Dr. Donald Fonte, for an orthopedic evaluation and treatment.
After having undergone treatment from Dr. Fonte for considerable time, the claimant returned to see Dr. Bailey. Dr. Bailey later referred the claimant to Dr. Abraham at the Little Rock Diagnostic Clinic for an evaluation of her continued complaints of pain, stiffness, and related symptoms. At the direction of Dr. Bailey, the claimant was also evaluated by Dr. Gregory at the Shealy Institute.
In an AR-3 report form dated September 18, 1996, Dr. Fonte opined that the claimant had suffered a 6% impairment to her whole person as a result of her injury. In a letter dated December 18, 1996, Dr. Fonte elaborated on the basis of his impairment rating. In response to a question posed to him in previous correspondence, Dr. Fonte stated that the impairment rating was based upon, "clinical findings throughout my course of her treatment which consisted of grip strength weakness, abnormalities in her reflexes, and persistence of radicular type pain patterns in her upper extremities." In the same report, Dr. Fonte later stated that a MRI scan of May 10, 1996, which reflected a minor disc bulge at C3, C4, "would not introduce any significant evidence since there is no disc herniation recorded in the MRI findings."
The administrative law judge held that at the time the claimant saw Dr. Bailey, he was no longer an authorized treating physician and that, consequently, neither his treatment, nor his referrals after the dates he had referred the claimant to Dr. Fonte were the responsibility of the respondent. The administrative law judge also held that Dr. Fonte's impairment rating was not supported by any objective medical findings. From that decision, the claimant filed the present appeal.
In regard to the respondent's liability for the disputed medical care, the first issue that must be decided is whether the respondent is correct in their assertion that Dr. Bailey ceased to be an authorized treating physician after his referral to Dr. Fonte. In reviewing applicable case law, we note that both the Court of Appeals and the Full Commission have, on more than one occasion, acknowledged that a claimant may have more than one authorized physician. In Welch v. Tri-County Shirt Company, 49 Ark. App. 112, 897 S.W.2d 575 (1995), the claimant was already receiving care from another physician at the time of her admittedly compensable injury. The claimant continued to see and be treated by this doctor after the time her employer was notified of the injury. The employer then designated another physician for the claimant to see and be treated by. In reversing a Commission decision which held the respondent only liable for the doctors they had specifically authorized, the Courts indicated that it was possible for either party to acquiesce in the other's choice.
The Commission reached the same result in Quinones v. Coca Cola Bottling Company, Full Commission opinion, June 24, 1992, (WCC Claim No. E104355). In that case, the respondent had objected to the specialist to which the claimant was referred by the physician they had initially authorized. Consequently, the respondent directed the claimant to receive treatment from another physician. In reaching their decision, the Commission made the following statements:
Therefore, either Dr. Shock or Dr. Peeples could have been the claimant's authorized treating physician. However, it is clear neither Dr. Wharton, the respondent, nor the claimant felt that the claimant needed treatment from two orthopedic specialists; instead all parties merely felt that the claimant needed evaluation and treatment by an orthopedic specialist. Therefore, the claimant could have opted to obtain treatment from Dr. Shock, and the respondent would have been liable for that treatment based upon Dr. Wharton's referral. Alternatively, the claimant was free to choose treatment by Dr. Peeples for the respondent expressly authorized Dr. Peeples.
We find that, once Dr. Bailey had been authorized to provide treatment to the claimant, he remained an authorized treating physician until the claimant was advised to the contrary. Since the record is devoid of any indication that the claimant was ever advised by the respondent or the Commission that Dr. Bailey was not an authorized treating physician, she was free to seek treatment from him if necessary.
The medical record also clearly reflects that Dr. Bailey referred the claimant to other physicians for evaluation. In a letter dated January 29, 1997, Dr. James Abraham thanked Dr. Bailey for referring the claimant to him for an evaluation. The record also contains a progress note from Dr. Bailey dated September 3, 1996, in which Dr. Bailey notes that the claimant is suffering from paresthesia and left arm weakness. The note also states that the claimant is being referred to the Shealy Institute in Springfield, Missouri. In fact, the note also indicated that the claimant was to see Dr. Gordon on September 25th at 2:30 p.m. Based upon the above facts, as well as the holdings of the Court of Appeals and the Full Commission in the above cited cases, we find that Dr. Bailey was an authorized treating physician and that Dr. Abraham and Dr. Gordon did see the claimant as a result of bona fide referrals by Dr. Bailey.
Even if the treatment furnished by Dr. Bailey is authorized, in order to establish the respondent's liability for that treatment, the claimant must still demonstrate that the treatment she received from him was reasonable and necessary. In our opinion, the claimant has met that burden of proof. In reviewing the medical records of Dr. Fonte, it appears in his progress note of August 7, 1996, he had prescribed that the claimant begin taking Flexeril for her recurrent muscle spasms. Apparently, this prescription ran out in the first part of September, and she sought Dr. Bailey's assistance in obtaining a second prescription. That fact is evidenced by Dr. Bailey's progress note of September 4, 1996, in which he indicated a refill of the claimant's Flexeril medication. It appears from Dr. Bailey's other progress notes that he continued to see and treat the claimant for these types of minor pain and for her prescription medications. It is certainly more logical and economic for the claimant to seek this type of medical care from a general practitioner in her home town as opposed to seeking it from a specialist a considerable distance from her residence. We also note that Dr. Fonte was aware of the claimant's treatment from Dr. Bailey since it is referred to in his progress notes. We find that the treatment the claimant received from Dr. Bailey is both reasonable and necessary and is in accordance with the course and treatment prescribed by Dr. Fonte.
The next issue that must be determined is whether or not the referrals made by Dr. Bailey to Dr. Gregory and Dr. Abraham were reasonably necessary and for conditions related to the claimant's compensable injury. The first of these referrals was to Dr. Gregory in September 1996. Dr. Gregory is a neurologist at the Shealy Clinic in Springfield, Missouri. In reviewing the claimant's medical records, we believe that it is significant that the claimant also underwent a consultative examination by Dr. Reginald Rutherford in July of 1996. Dr. Rutherford is also a neurologist practicing in Little Rock, Arkansas. The reports from Dr. Gregory and Dr. Rutherford are very similar. In fact, it appears that Dr. Gregory did not make any findings pursuant to his examination of the claimant in September of 1996, that Dr. Rutherford had not already determined as a result of his examination of the claimant in July of 1996. In our opinion, the consultative examination by Dr. Gregory was cumulative and did not serve any real purpose. While it is understandable that physicians would want a claimant to be examined by practitioners in other specialties, we do not believe that treating physicians have unlimited authority to refer the claimant to referrals that are redundant and do not develop any information not already known. For that reason, we find that the referral to Dr. Gregory was not reasonable or necessary and the respondent is not liable for paying for Dr. Gregory's services in connection with his consultative examination in September 1996.
Dr. Bailey's other referral was to Dr. Abraham at the Little Rock Diagnostic Clinic in January 1997. Dr. Abraham is a rheumatologist, who was seeing the claimant based upon Dr. Bailey's diagnosis that the claimant was suffering from fibromyalgia. In his report of January 29, 1997, Dr. Abraham stated that he concurred with Dr. Bailey and indicated that he discussed the claimant's condition with her and advised her regarding the treatment of this condition. While Dr. Abraham's discussion with the claimant was undoubtedly informative, we do not believe that it materially assisted in the treatment of her compensable injury. We have no doubt that either Dr. Bailey or Dr. Fonte could have provided the claimant with the same information. We simply do not see that there is any real basis or need for the services provided for by Dr. Abraham. We therefore hold that this examination was not reasonable or necessary and that the respondent should not be obligated to pay for this treatment.
The remaining determination that must be made in this case is whether the claimant is entitled to permanent disability benefits based upon an anatomical impairment of 6% to the body as a whole. The claimant is basing her request upon the opinion of Dr. Fonte, set out in his report of September 18, 1996. As indicated above, Dr. Fonte, in that report, stated that the claimant's impairment was 6% to the body as a whole. However, in order for that impairment rating to be a basis for award of permanent disability benefits, the claimant must meet the requirement of A.C.A. § 11-9-704(c)(1)(B). That section provides that any determination as to the extent or existence of physical impairment must be supported by objective and measurable physical or mental findings. Objective findings are defined in Ark. Code Ann. § 11-9-102(16), as those finding which cannot come under the voluntary control of the claimant.
In his correspondence of December 18, 1996, Dr. Fonte set out his basis for opining that the claimant had a 6% impairment rating. The factors he listed were grip strength weakness, reflex abnormalities, and radicular pain. All of those are clearly factors that come under the claimant's voluntary control. The only objective factor that could potentially be cited was the bulging disc found in the claimant's cervical spine. However, Dr. Fonte specifically stated that this bulge did not account for any impairment or disability that the claimant was suffering. In short, we simply do not see that there is any objective finding in any of the claimant's medical records that would support an award of permanent disability. For that reason, we find that the claimant failed to meet her burden of establishing her entitlement to any permanent disability benefits.
The only remaining contention made by the claimant is that Ark. Code Ann. § 11-9-102(13), and presumably Ark. Code Ann. § 11-9-702(c)(1)(B) are violative of the provisions in the Arkansas and United States Constitutions relating to guarantees of equal protection and due process. However, neither at the hearing nor in her brief has the claimant offered any evidence to support that allegation. In fact, other than making the allegation itself, the claimant has failed to make any clear argument to support a finding that the referenced statute is unconstitutional. The Court of Appeals has specifically held that an argument on appeal which is not supported by convincing argument or authority should not be considered unless it is apparent without further research that the asserted error is well taken. Weeks v. Coca Cola Bottling Company, 270 Ark. 151, 604 S.W.2d 566 (1980).
Even if the claimant's argument in this regard is given consideration, we do not see any basis for holding that the statute in question is unconstitutional. It is presumed that all legislative enactments are constitutional and, any doubts concerning it must be resolved in favor of constitutionality.Holland v. Willis, 293 Ark. 518, 793 S.W.2d 529 (1987). It also been held by the United States Supreme Court that when any procedure is challenged on the grounds of constitutionality, the primary focus is on the fairness and accuracy of the decisions that come from the procedure. United States v. Raddatz, 447 U.S. 667 (1980). There is no evidence that the provisions in question results in any unfairness or inaccuracy. We do not see any basis whatsoever for finding that the provisions of the Workers' Compensation Act, relating to objective findings, is in any way unconstitutional. We hold that the claimant's argument in this regard is without merit and that the statute in question is constitutional.
For the reasons set out above, we find that Dr. Bailey was an authorized treating physician and that the claimant proved by a preponderance of the evidence that the treatment he provided the claimant was reasonable and necessary. However, we find that the greater weight of the evidence also establishes that the consultative examinations performed by Dr. Eric Gregory and Dr. James Abraham were not reasonable and necessary, and the respondent is not liable for the cost of those examinations. We also find that the impairment rating provided by Dr. Fonte is not based upon any objective physical or mental findings and is not a sufficient basis for an award of permanent partial disability benefits. Accordingly, the claimant's claim for those benefits is denied and dismissed.
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 (Repl. 1996). For prevailing in part 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).
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
[25] I concur with the principal opinion to the extent it finds that Dr. Bailey was an authorized treating physician and that the treatment he provided to claimant was both reasonable and necessary. However, I must respectfully dissent from the remainder of the findings contained in the principal opinion.PAT WEST HUMPHREY, Commissioner
CONCURRING AND DISSENTING OPINION
[29] I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the majority's finding that the provisions of Ark. Code Ann. § 11-9-102(16) are constitutional. I also concur in the majority's finding that consultive examinations performed by Dr. Eric Gregory and Dr. James Abraham were not reasonable and necessary medical treatment. I further concur in the majority's finding that the impairment rating provided by Dr. Fonte is not based upon any objective physical or mental findings and is therefore not sufficient basis for an award of permanent partial disability benefits. However, I must respectfully dissent from the majority's finding that Dr. Bailey was an authorized treating physician and that the treatment provided by Dr. Bailey was reasonable and necessary. In my opinion, the medical treatment provided for by Dr. Bailey after April 1996 is not authorized medical treatment. Therefore, I respectfully concur in part and dissent in part from the majority opinion.MIKE WILSON, Commissioner