Opinion
CLAIM NO. E907076
OPINION FILED AUGUST 31, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LAURA ANDRESS, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Modified in part and reversed in part.
OPINION AND ORDER
The claimant appeals opinions and orders filed by the Administrative Law Judge on February 16, 2000 and October 5, 2000. In those opinions and orders, the Administrative Law Judge found that the respondents are not liable for the medical treatment at issue in this case. In addition, the Administrative Law Judge found that the claimant failed to prove that she is entitled to permanent disability benefits in excess of the 12% impairment rating to her lower left extremity already accepted and paid by the respondents. After conducting a de novo review of the entire record, we find that the claimant sustained a 27% permanent anatomical impairment to her left lower extremity. In addition, we find that the respondents are liable for the medical treatment at issue in this case. Therefore, we find that the decision of the Administrative Law Judge must be modified in part and reversed in part.
I. FACTUAL BACKGROUND
The relevant facts in this case are not in dispute on most of the issues involved. The claimant sustained an admittedly compensable injury at a school function on May 13, 1999, when she tripped and fell over rolled up carpet. The 62-year-old claimant skinned her hands, bruised her knees, and became stiff in her back. Claimant signed a Form AR-N on Friday, May 14, 1999. Claimant later filed a written request to see her chiropractor, Dr. Chandler, which was approved by the school principal, Pat Hastings. The claimant treated with Dr. Chandler on four occasions the following week before the claimant and Dr. Chandler were both advised by a claims adjuster for Management Claims Service, Ms. Shannon Kay Moore, that Dr. Chandler was not an authorized treating physician and that the claimant would need to go to the workers' compensation doctor who was an authorized treating physician for her treatment. (T. 37). The claimant was advised that she could follow up with a workers' compensation doctor in Siloam Springs or could go to Dr. Gary Moffitt at the Lowell Medical Clinic. (T. 37).
The claimant nevertheless continued to treat with Dr. Chandler. Dr. Chandler's records indicate that the claimant's right knee and back problems improved significantly under his care, but that her left knee problems did not improve. The claimant also came under the care of Dr. James Arnold, an orthopedic specialist, who ultimately performed left knee surgery for a partial medial and lateral meniscectomy on September 10, 1999.
Dr. Arnold ultimately assigned the claimant a 35% impairment rating to the lower extremity under various provisions of the AMA Guides for her compensable injury. The respondents later referred the claimant to Dr. Robert Tomlinson to assign an impairment rating, and based on his use of the AMA Guides, Dr. Tomlinson assigned the claimant a 12% rating to the left lower extremity. At some point before the hearing in this case, the respondents accepted and began paying the claimant benefits for Dr. Tomlinson's 12% impairment rating.
This case initially came before the Commission for a hearing on the issue of change of physician and the claimant's entitlement to additional medical treatment and a controverted attorney's fee, and after holding a hearing, the Administrative Law Judge filed an opinion on February 16, 2000 finding that the claimant has failed to prove by a preponderance of the evidence that she is entitled to a change of physician or that the respondents should be liable for medical treatment previously provided by Dr. Chandler or Dr. Arnold. During a subsequent appeal, the parties and the Commission agreed to remand this file back to the Administrative Law Judge for an additional hearing on the issue of permanent disability benefits. In an opinion filed on October 5, 2000, the Administrative Law Judge found that the claimant sustained permanent physical impairment in an amount equal to 12% to the left lower extremity. This case is now on appeal before the Full Commission on the claimant's appeal of both of the Administrative Law Judge's relevant findings.
II. LIABILITY FOR MEDICAL TREATMENT
The first issue is whether or not the respondents "acquiesced or agreed to" the claimant's request to pick the initial treating physician when the school principal agreed for the claimant to be treated by a chiropractor. See Welch v. Tri-County Shirt Co., 49 Ark. App. 121, 897 S.W.2d 575 (1995).
For their part, the respondents fail to specifically address this specific legal issue in their brief on appeal. The respondents simply seek to characterize the adjuster's action in informing the claimant and Dr. Chandler that the claimant could no longer treat with Dr. Chandler as simply clearing up a "misunderstanding" between the claimant and the respondent (T. 37).
The dissenting opinion seeks to characterize the school principal's actions as a "mistake" or a "miscommunication."
Ark. Code Ann. § 11-9-514(a)(3)(A)(i) states:
Following establishment of an Arkansas Managed Care System as provided in § 11-9-508, subdivisions (a)(1) and (2) of this section shall become null and void, and thereafter:
(A)(i) The employer shall have the right to select the initial primary care physician from among those associated with managed care entities certified by the commission as provided in § 11-9-508. [Emphasis added.]
In addition, Ark. Code Ann. § 11-9-102(11) defines "Employer" as "any individual, partnership, association, or corporation carrying on any employment, the receiver or trustee of the same, or the legal representative of a deceased employer."
Initially, we note that the provisions of Act 796 are to be strictly construed. We also note that this section added by Act 796 indicates that it is the "employer" (not the "respondent" or "insuror" or "carrier") who has the right to select the initial primary care physician from among MCO entities, and in the present case, it was the "employer" (the school principal) who agreed for the claimant to be treated by the chiropractor, Dr. Chandler.
To the extent that the respondents' brief on appeal and the dissenting Commissioner now seeks to characterize the school principal's agreement for the claimant to treat with Dr. Chandler as either a "misunderstanding," a "mistake," or a "miscommunication," we point out that the school principal in this case did not testify, and we point out that the carrier, Management Claims Services, agreed after the fact to pay for the claimant's first four visits with Dr. Chandler (as authorized by the school principal) prior to Ms. Moore contacting Dr. Chandler and the claimant to advise that Dr. Chandler would not be considered an authorized treating physician by Management Claims Services. We are not persuaded that the school principal's agreement for the claimant to treat with Dr. Chandler was either a misunderstanding, a mistake, or a miscommunication. It was simply an agreement between the claimant and her employer as to who her treating physician would be.
On these undisputed facts, we also find that the school principal bound both the respondent employer and Management Claims Services as to the claimant's authorized treating physician, and that by the actions of the school principal, the respondents in fact agreed to waive any right to choose the claimant's initial treating physician from an MCO, and instead agreed to the claimant's request of Dr. Chandler as her authorized treating physician. Further, once the employer agreed to the claimant's choice of Dr. Chandler as the claimant's authorized treating physician, Management Claims Services had no right that we are aware of under the law to later unilaterally attempt to change the claimant's authorized treating physician. Under these circumstances, the respondents are liable for Dr. Chandler's treatment at issue which improved all of the claimant's symptoms except those symptoms in her left knee, which ultimately required surgery. Furthermore, once the respondents controverted the claimant's entitlement to additional reasonably necessary treatment from her authorized treating physician, so that the claimant was required to seek additional treatment at her own expense, the change of physician rules no longer apply so that the respondents are also liable for Dr. Arnold's reasonably necessary knee surgery. Consequently, the dissenting opinion's observations nothwithstanding, the respondents' liability for the treatment by Dr. Arnold does not depend on whether or not Dr. Arnold was associated with the respondent's MCO. Once the respondents controverted the claimant's access to treatment from her authorized treating physician, Dr. Chandler, the claimant was at liberty to seek reasonably necessary medical treatment from physicians of her own choosing.
In short, we agree with the dissenting opinion's point that under the provisions of Act 796 and the Form AR-N in the record, the employer had the right to select the claimant's initial treating physician from an MCO. However, in the present case, the claimant's employer did not avail itself of that right, but instead agreed with the claimant's choice of Dr. Chandler as her authorized treating physician. If Management Claims Services does not intend for school district employers to enter into such agreements as to initial choice of physicians or changes of physicians, then Management Claims Services needs to advise the districts in advance that school principals should consult with Management Claims Services before making such agreements. However, once the employer in this case agreed to the claimant treating with Dr. Chandler as her authorized treating physician, neither the dissenting opinion nor Management Claims Services has pointed us to authority under the law or the Form N quoted by the dissenting opinion which indicates that Management Claims Services may subsequently unilaterally change the claimant's authorized treating physician. As we understand the decision of the Court of Appeals in Welch v. Tri-County Shirt Co., 49 Ark. App. 121, 897 S.W.2d 575 (1995), Management Claims Services had no such authority. Consequently, the dissenting opinion's conclusions are simply based on a faulty premise.
III. PERMANENT IMPAIRMENT AND DISABILITY
The claimant is also requesting permanent partial disability benefits, including impairment and wage loss. The respondents contend that the claimant is not entitled to any benefits in excess of the 12% impairment rating to the lower left extremity that was accepted and paid. By an order dated October 5, 2000, the Administrative Law Judge found that the claimant had failed to prove by a preponderance of the evidence that she was entitled to permanent disability benefits in excess of the 12% to the lower left extremity. The Administrative Law Judge also found that the claimant failed to prove that she was permanently and totally disabled.
The initial issue for consideration involves the claimant's correct impairment rating. Here, the claimant was assigned a permanent physical impairment rating in an amount equal to 35% to the left lower extremity by Dr. James Arnold, the physician who performed surgery on the claimant. The respondent had an independent medical evaluation performed by Dr. Robert Tomlinson who opined in a letter report dated July 10, 2000, that the claimant had a 12% impairment rating to her left lower extremity. Both Dr. Arnold and Dr. Tomlinson rely upon the Fourth Edition of the Guides to the Evaluation of Permanent Impairment in assessing their impairment ratings. A review of Section 3.2 dealing with the lower extremity reveals that there are two ways to assess permanent impairment to the lower extremity. One of those two ways is to base the impairment rating on the diagnosis. Diagnosis based estimates are discussed in Section 3.2i. This was the method chosen by Dr. Tomlinson. The second method for determining impairment to the lower extremity is to base an impairment on findings of physical examination. This was the method chosen by Dr. Arnold to assess his impairment rating.
We find that the diagnosis-based technique of Dr. Tomlinson is proper because it is based upon objective findings as required by Ark. Code Ann. § 11-9-704(c)(1)(B). On the other hand, Dr. Arnold's approach relies in part on subjective clinical and diagnostic findings.
Unfortunately, we also conclude that Dr. Tomlinson mis-applied various provisions of the Guides as follows. Dr. Tomlinson purports to assign the claimant a 7% impairment for her total medial meniscectomy, an additional 2% impairment for her partial lateral meniscectomy, and an additional 3% impairment due to a significant gait impairment, for a total of 12% impairment to the left lower extremity. We gather that Dr. Tomlinson's ratings for the total medial meniscectomy and partial lateral meniscectomy are from Table 64 on page 3\85. However, as we interpret Table 64, the 7% and 2% ratings assigned by Dr. Tomlinson only apply when the patient sustains one or the other injury, but does not apply when a person sustains both a medial and a lateral meniscectomy. Table 64 applies higher ratings when the patient undergoes more than one meniscectomy as indicated in that part of Table 64 immediately below the portion of Table 64 apparently applied by Dr. Tomlinson. Unfortunately, as we interpret Table 64, Table 64 does not address the applicable cumulative rating when a patient sustains a total meniscectomy to one and a partial meniscectomy to the other, but clearly a rating under those circumstances under Table 64 must be equal to at least the cumulative 10% rating assigned for two partial meniscectomies. In addition, we find no basis whatsoever for Dr. Tomlinson's addition of a 3% increase due to the claimant's significant gait impairment documented by both Dr. Tomlinson and Dr. Arnold. To the contrary, Table 36 on page 3\76 assigns a minimum 7% impairment to the whole body (equivalent to a 17% impairment to the lower extremity) for an antalgic gait. Therefore, under the diagnosis-based estimate applied by Dr. Tomlinson, with the additional impairment for the antalgic gait, we find that the claimant's impairment rating should be 27% (10% from Table 64 plus 17% from Table 36) to the lower extremity at the knee.
The claimant also contended prior to the hearing that she is permanently and totally disabled. However, the claimant appears to have abandoned this argument in her brief on appeal, and we also note that the claimant specifically testified that she was not contending that she was incapable of working, as follows:
Q. You're not telling the Judge here today that you're unable to do any job whatsoever, are you?
A. No.
Q. You're just — don't believe that you're able to do the job you used to could do.
A. I know that I can't do the job I used to do.
Accordingly, we find that the claimant has failed to establish that she is entitled to compensation for permanent and total disability.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed, we find that the respondents are liable for the medical treatment at issue in this case. In addition, we find that the claimant has sustained a 27% impairment to the lower extremity at the knee.
We also find that the claimant's attorney is entitled to the maximum statutory attorney's fee on the benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondents in accordance with Ark. Code Ann. § 11-9-715, Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990) and Chamness v. Superior Industries, Full Workers' Compensation Commission, Opinion filed March 4, 1992 (W.C.C. No. E019760). 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 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.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
I must respectfully concur in part and dissent in part from the majority opinion. I dissent from the finding that the claimant proved by a preponderance of the evidence that she was entitled to a change of physician and that the respondent is liable for the medical treatment the claimant received from Drs. Chandler and Arnold and a finding that the claimant was entitled to a 27% permanent impairment rating. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof. However, I concur in the finding that the claimant failed to prove by a preponderance of the evidence that she is permanently and totally disabled.
The claimant sustained an admittedly compensable injury on May 13, 1999. The next day the claimant reported the injury and filled out a Form N. On May 17, 1999, she wrote a letter requesting treatment by her chiropractor. The claimant was informed by the respondent that she should seek treatment at the Siloam Springs Medical Center. However, the claimant informed her supervisors that she did not want to receive treatment from there, but instead requested an evaluation by Dr. Chandler, her chiropractor, from whom she had received prior treatment. As a result, the claimant was informed that she should write a letter and ask permission to seek treatment from Dr. Chandler. The claimant gave the letter to her principal, Pat Hastings, on the following Monday, and she was informed that she could receive treatment from Dr. Chandler. The claimant sought medical treatment from Dr. Chandler on four separate occasions. At the time of her fifth visit to Dr. Chandler, the claimant was informed by Shannon Moore, an adjuster for the respondent-carrier, that additional medical treatment from Dr. Chandler would not be accepted and paid for by the respondent. The claimant was instructed to receive treatment from either the Siloam Springs Medical Center or Dr. Moffett in Lowell. After being notified of this, the claimant elected to continue treatment with Dr. Chandler. Dr. Chandler eventually referred the claimant to Dr. Arnold, who performed surgery on the claimant's knee on September 10, 1999.
The evidence in this case shows that the respondent is a member of an MCO that is under contract with USAble Corporation. A copy of the contract, which was effective January 31, 1996, was introduced into evidence.
The claimant is now seeking payment for medical expenses she incurred for treatment by Drs. Ewart, Chandler, and Arnold. She is also requesting a change of physician to either Dr. Chandler or Dr. Arnold. The respondent contends that these doctors are not authorized under the respondent's MCO, as they are not the claimant regular treating physicians as required under Ark. Code Ann. § 11-9-514(a)(3)(A)(ii) and that the claimant did not follow the protocol for a change of physician request, as required by Ark. Code Ann. § 11-9-514 (a)(3) and contained in the Form N.
The majority opines that the actions of Principal Hastings bound both the respondent employer and respondent carrier. I cannot agree with that determination. The evidence shows that the claimant completed the Form N the following day after the fall occurred on May 13, 1999. The claimant testified that she received a copy and that she read the complete form which states:
"EXCEPT FOR EMERGENCY TREATMENT, IF YOUR EMPLOYER OR ITS INSURANCE COMPANY HAS CONTRACTED WITH A CERTIFIED MANAGED CARE ORGANIZATION . . . Your employer has the right to select your initial primary care physician."
The evidence shows that the claimant was instructed by Principal Hastings to seek treatment at the Siloam Springs Medical Clinic. The claimant wrote a letter to the respondent requesting that she be allowed to see her chiropractor, Dr. Denise Chandler. The following Monday afternoon, May 17, the claimant telephoned the respondent's administration office regarding her letter and was allowed to see Dr. Chandler. Upon learning that the claimant was being seen by Dr. Chandler, who was not a member of the MCO, the claimant and Dr. Chandler's office were contacted by Ms. Moore. This was on May 20, 1999. The claimant was instructed to call the respondent's administration office, where she was informed that Dr. Chandler was not an authorized treating physician. The following day, Ms. Moore personally contacted the claimant. Ms. Moore testified that she informed the claimant that Dr. Chandler was not an authorized treating physician, but that they would pay for the visits to Dr. Chandler up to that point, due to the miscommunication. Ms. Moore testified that she informed the claimant that the authorized physicians for the respondent were with either the Siloam Springs Medical Clinic or the Lowell Medical Clinic. Ms. Moore testified that she followed up with a letter to the claimant.
The claimant continued to see Dr. Chandler in spite of being informed that the respondent would not pay for the medical treatment. The claimant testified that she saw Dr. Chandler during regular business hours and never for emergency. The claimant also began seeing Dr. Arnold on her own. The claimant testified that Dr. Chandler did not refer her to Dr. Arnold. The claimant did not check with Ms. Moore or anyone with the respondent-employer to determine if Dr. Arnold was an authorized treating physician under the MCO. The claimant testified that she saw Dr. Arnold during regular business hours and never for an emergency.
Under the provisions of Ark. Code Ann. § 11-9-514, the claimant may petition the Commission one time only for a change of physician. However, the claimant in this case never petitioned this Commission or received approval from the Commission for a change of physician prior to receiving treatment from Dr. Arnold. The claimant also testified that she did not check with Ms. Moore, or anyone with the respondent-employer, to determine if Dr. Arnold was authorized. Further, she testified that Dr. Chandler did not refer her to Dr. Arnold.
The treatment by Dr. Ewart was also not authorized. Dr. Ewart is not a member of the MCO. The clinic notes of Dr. Ewart indicate that the claimant was being treated for hypertension and menopause, which are completely unrelated to the claimant's left knee problems. Therefore, any treatment by Dr. Ewart is certainly not related to the claimant's compensable knee injury.
Under the provision of Ark. Code Ann. § 11-9-514, when the respondent-employer is a member of a managed care organization, the respondent-employer has the right to pick the claimant's initial treating physician. The claimant is entitled to a change of physician when (1) the physician is associated with a managed care entity, or (2) is the regular treating physician of the claimant who maintains the claimant's medical records and with whom the claimant has a bona fide doctor-patient relationship demonstrated by a history of regular treatment prior to the onset of the compensable injury, but only if the primary care physician agrees to refer the claimant to a certified managed care entity for any specialized treatment, and agrees to comply with all the rules, terms, and conditions regarding services performed by the managed care entity chosen by the employer.
The evidence shows that neither Dr. Chandler nor Dr. Arnold were associated with the respondent-employer member MCO. No evidence was presented that either Dr. Chandler or Dr. Arnold were the claimant's regular treating physicians with whom a history of regular treatment existed prior to the onset of the claimant's compensable injury. Dr. Chandler is a chiropractor and no medical records were provided of any long-standing treatment for various illnesses. The claimant testified that she had never been treated by Dr. Arnold prior to her compensable injury, but rather made an appointment with him because he had treated her husband several years ago. There is also no evidence in the record that Dr. Chandler or Dr. Arnold agreed to refer specialized treatment to a certified managed care entity or that either doctor agreed to comply with the rules and conditions of the managed care entity.
In summary, the respondent initially mistakenly indicated to the claimant that she could seek medical treatment from Dr. Chandler. However, after four visits to Dr. Chandler, both the claimant and Dr. Chandler were informed by Shannon Moore that Dr. Chandler was not a member of the respondent's MCO. The claimant was informed that Dr. Chandler's treatment was unauthorized and would not be accepted and paid for by the respondent. Despite having been advised by the respondent that Dr. Chandler's treatment was unauthorized and would not be accepted by respondent, the claimant nevertheless chose to continue her treatment with Dr. Chandler. Having failed to follow the procedure the change of physicians and having failed to offer evidence indicating that Dr. Chandler would agree to refer the claimant to a managed care entity for specialized treatment or evidence that she agreed to comply with all the rules, terms, and conditions of the managed care entity initially chosen by the respondent as required by statute, the claimant has failed to prove by a preponderance of the evidence that she is entitled to a change of physicians to Dr. Chandler or Dr. Arnold, and in addition, has failed to prove by a preponderance of the evidence that the respondent is liable for medical treatment or services which were prescribed by these physicians and was unauthorized pursuant to Ark. Code Ann. § 11-9-514(3)(b).
Therefore, in my opinion, the claimant has failed to prove by a preponderance of the evidence that she is entitled to a change of physician or that the respondent is liable for medical treatment that the claimant received from Drs. Ewart, Chandler, or Arnold.
The claimant is also requesting permanent partial impairment benefits. The respondents contend that the claimant is not entitled to any benefits in excess of the 12% impairment rating to the lower left extremity that was accepted and paid. I agree with the respondents. Accordingly, I find that the claimant has suffered a permanent physical impairment rating in an amount equal to 12% to her lower extremity as a result of her compensable injury. The respondent has previously accepted and is presently paying benefits commensurate with that impairment rating.
Therefore, for all the reasons set forth herein, I concur in part and dissent in part.