Opinion
CLAIM NO. E911941
OPINION FILED FEBRUARY 12, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.
Respondents represented by the HONORABLE EARL BUDDY CHADDICK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Claimant appealed an opinion and order filed by the Administrative Law Judge on June 21, 2000. In that opinion and order, the Administrative Law Judge held, inter alia, that claimant proved entitlement to additional medical treatment at the direction of Dr. Michael Richards. In so holding, the Administrative Law Judge declined to appoint Dr. Russell Young as claimant's authorized treating physician. Moreover, it was determined that Dr. Young and Dr. William Griggs are unauthorized physicians. After conducting a de novo review of the record, we find that the change of physician rules are inapplicable to this claim. Accordingly, Drs. Young and Griggs are authorized physicians. We further find that respondents are liable for their treatment. Finally, we hold that claimant is entitled to additional medical treatment at the direction of Dr. Young. Therefore, the decision of the administrative law judge must be reversed.
Claimant worked as a supervisor for respondents. Her employment spanned twenty-three years. The parties stipulated that claimant sustained a compensable injury on September 14, 1999. On that date, she was struck on the head by a fluorescent light fixture weighing about 30-50 pounds. Claimant lost consciousness. When she awoke, co-workers had moved her from the production line to a pallet in the tub room. With assistance, claimant proceeded to the nurse's station. She was furnished ice for her aching head. Claimant became nauseated, and she was accompanied to the restroom by co-workers. After sitting in the locker room for a few hours, she again developed nausea. Claimant's supervisor was unavailable; therefore, she informed the nurse that she needed to go home. Upon arriving home, claimant went to bed, where she remained until the following morning.
Claimant testified that she was unable to work the next day. When her spouse returned home for lunch, claimant was still asleep. Claimant stated that her spouse roused her and called respondents. After informing respondents that claimant required medical attention, he was instructed to transport her to the plant. Ms. Cindy Dorr, Nursing Supervisor, selected Dr. Michael Richards as the authorized physician and claimant objected to this choice. She testified that she informed Ms. Dorr that any other physician would be satisfactory. Claimant explained that Dr. Richards treated her for bronchitis, prescribing medication which exacerbated her symptoms. This necessitated treatment by another physician, Dr. Young, and he prescribed the correct medicine. However, Ms. Dorr informed claimant that Dr. Richards "would do," and an appointment was immediately scheduled.
Ms. Dorr accompanied claimant to the office of Dr. Richards, but remained in the waiting room. Claimant testified that after a cursory examination, Dr. Richards opined that "her body would heal itself." He then left the room to consult with Ms. Dorr. Upon his return to the examination room, Dr. Richards informed claimant that she could return to work immediately. However, claimant's shift had ended.
Claimant stated that she was unable to go to work the following morning. She testified that she called Dr. Young's office, and scheduled an appointment for the same day, which was September 16, 1999. Claimant stated that she consulted Dr. Young each Monday for about eight weeks. He ordered diagnostic tests, and made a referral to Dr. Griggs. Claimant discontinued medical treatment based on a lack of resources. However, she stated that she remains symptomatic. Claimant explained that she experiences dizziness. Moreover, she has headaches as well as shoulder and neck pain.
Ms. Dorr testified in behalf of respondents. She stated that after Dr. Richards examined claimant, he asked "where can we put her?" Dorr suggested office work, and Dr. Richards agreed with the proposal. Therefore, he released claimant to return to work.
With respect to claimant's receipt of medical treatment, Ms. Dorr stated that Dr. Young's office contacted the company on September 20, 1999, to verify workers' compensation coverage. She stated that claimant was present in Dr. Young's office, and she spoke with her on that occasion. Ms. Dorr testified that claimant indicated that she did not wish to see a company doctor. She stated that they discussed the ramifications of claimant seeking medical treatment from a physician other than Dr. Richards. Ms. Dorr testified that she informed claimant that she could obtain medical care on her own. She added that in her capacity as a supervisor, claimant was aware of the rules for changing physicians.
At the hearing, respondents contended that since Drs. Young and Griggs are unauthorized physicians, claimant is liable for the treatment she received at their direction. The Administrative Law Judge agreed, reasoning that claimant failed to follow the statutory procedure for changing physicians.
An exception exists to the requirement that claimant must petition the Commission for a physician change. Unless WCC Form AR-N is properly delivered, the change of physician rules are inapplicable. The acceptable delivery methods are set out in Ark. Code Ann. § 11-9-514 (c) (1) (Supp. 1999), which provides:
After being notified of an injury, the employer or insurance carrier shall deliver to the employee, in person or by certified or registered mail, return receipt requested, a copy of a notice, approved or prescribed by the commission, which explains the employee's rights and responsibilities concerning change of physician.
In Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000), the Court of Appeals interpreted this provision. The court held that verbal notice of the change of physician rules is insufficient, reasoning that written notice is clearly contemplated by the statute. The Court of Appeals also held that the AR-N must be delivered after the injury.
The evidence established that Ms. Dorr discussed the change of physician rules with claimant. Respondents failed to offer any evidence that an AR-N was delivered to claimant after the injury. Verbal notice is inadequate under Stephenson. Since respondents failed to furnish a copy of WCC Form AR-N after claimant's injury, the change of physician rules are inapplicable to this claim. See, Ark. Code Ann. § 11-9-514 (c)(2) (Supp. 1999). Thus, we reverse the Administrative Law Judge's finding that Drs. Young and Griggs are unauthorized physicians, and impose liability for their treatment upon respondents.
In reaching our decision, we note that the Administrative Law Judge considered neither the change of physician form nor Stephenson in reaching a decision in this case, and we are at a loss to explain the oversight.
Claimant also seeks additional medical treatment. On September 16, 1999, Dr. Young detected muscle spasms on the right side of claimant's neck, and in the shoulder area. He noted range of motion restrictions, too. Dr. Young documented claimant's loss of consciousness, which lasted for 5-10 minutes, and amnesia. He offered the following impression: "Closed head injury with persistent nausea and severe headache, post concussion syndrome." Dr. Young determined that claimant should have a brain CT "to rule out any subdural, cervical spine films to check for allgnment [sic], position and muscle spasms because of persistent pain in her neck and shoulder." He prescribed physical therapy, a narcotic analgesic for pain and a muscle relaxant. Dr. Young excused claimant from work until September 20, 1999, noting on the work excuse that she had an "acute cervical strain / s/p cerebral concussion syndrome." He continued to furnish off-work slips for the following time periods: 9/20/99-9/27/99; 9/27/99-10/4/99; 10/4/99-10/11/99; 10/11/99-10/25/99; and 10/25/99-11/1/99. A chart note for November 1, 1999, indicated that claimant should consult Dr. Richards for a release before returning to work.
Dr. Young also referred claimant to Dr. Griggs, a neurologist, for "evaluation of post-traumatic headaches, neck ache, and dizziness." His report, dated November 11, 1999, indicated that claimant was told by Dr. Richards that her body would heal itself. Dr. Griggs noted that claimant's neck MRI and brain CT were normal. After ordering additional tests, he offered the following diagnoses:
BILATERAL CARPAL TUNNEL SYNDROME, MODERATELY SEVERE
POSTTRAUMATIC HEADACHE AND NECK PAIN, PROBABLY MUSCULAR CONTRACTION IN TYPE.
DIZZINESS, PROBABLY RELATED TO HYPERVENTILATION SYNDROME.
Claimant testified that although she is symptomatic, a lack of resources has prevented further medical treatment.
In our opinion, additional medical treatment is reasonably necessary. However, the medical care furnished by Dr. Richards was inadequate. It appears that he dismissed claimant's complaints, perhaps failing to recognize the seriousness of a loss-of-consciousness injury. Indeed, he predicted that her body would heal on its own. Claimant's initial concerns with respect to Dr. Richards were legitimate. Nevertheless, claimant's request for treatment by another physician of Ms. Dorr's choosing was rejected. Since the change of physician rules are inapplicable, and additional treatment is warranted, claimant is free to obtain medical treatment at the direction of Dr. Young. Accordingly, we reverse the Administrative Law Judge's finding that Dr. Richards is claimant's authorized treating physician.
As a final matter, we find claimant's employment separation disconcerting. She testified that as a result of a workforce shortage, the company was lax with respect to the timely furnishing of off-work slips. Claimant, an employee of twenty-three years, was not afforded any leniency. In a letter dated October 19, 1999, claimant was informed that she should have contacted the employer the previous day in order to avoid termination as a result of the company's "two day no call-in no show policy." This was an error, since claimant had furnished a doctor's note covering this time frame. Ultimately, claimant was terminated based on this policy. In a letter dated November 1, 1999, respondents advised claimant that her termination was effective on October 28, 1999. On October 25, 1999, Dr. Young completed a work excuse covering October 25, 1999 through November 1, 1999.
Accordingly, based on our de novo review of the record, and for the reasons discussed herein, we find that Drs. Young and Griggs are authorized physicians. Therefore, respondents are liable for their treatment. Moreover, we find that claimant is entitled to additional medical care at the direction of Dr. Young.
All accrued benefits shall be paid in a lump sum without a 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 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) (Repl. 1996).
IT IS SO ORDERED.
__________________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
Commissioner Wilson dissents.