Opinion
CLAIM NO. E903202
OPINION FILED JANUARY 25, 2001.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE BRUCE D. ANIBLE, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Vacated in part and reversed in part.
OPINION AND ORDER
In an opinion and order filed on May 30, 2000, the Administrative Law Judge found that respondents failed to demonstrate that a second opinion evaluation is reasonably necessary. Claimant was awarded additional medical benefits, and an open-ended award of temporary total disability benefits. Respondents appealed the decision of the administrative law judge, which was issued based on the record established by the parties. After conducting a de novo review of the entire record, we find that the respondents are entitled to an opportunity to have the claimant evaluated by Dr. McLeod prior to additional surgery currently proposed by Dr. Contreras. Therefore, we find that the administrative law judge's decision in this regard must be reversed. In addition, temporary total disability was not an issue before the administrative law judge. Therefore, we vacate this finding.
Claimant worked as a groomer for respondents. She sustained an admittedly compensable injury on February 4, 1999. The medical records reflected that claimant was injured in an accident involving a horse. She collided with the animal, and was knocked about twelve feet. At the direction of her employer, claimant obtained medical treatment from Dr. David Sitzes. He referred claimant to an orthopedist, Dr. Norris Knight. Dr. Knight ordered a MRI, which showed a disc herniation at L5-S1. Based on the test results, he referred claimant to Dr. Freddie Contreras, a neurosurgeon. He evaluated claimant on April 14, 1999, recommending surgery. Claimant was agreeable, and the procedure was scheduled.
At the behest of respondents, an IME was scheduled for July 6, 1999, with Dr. P.B. Simpson. Claimant was required to travel a total of 255 miles in order to obtain the evaluation. The report generated from Dr. Simpson's examination was not made a part of the record. However, the evidence reflected that he agreed with the recommendation of Dr. Contreras, and a laminectomy was scheduled.
Claimant's surgery was canceled after she developed headaches, neck pain, dizziness, and balance problems. Additional testing was recommended. This was done on August 18, 1999, and showed a disc protrusion at C3-4, and stenosis. Also, a small disc protrusion was identified at T2-3.
On September 24, 1999, Dr. Contreras performed surgery at L5-S1. Although claimant showed improvement following surgery, she had some numbness and tingling. Dr. Contreras attributed these symptoms to swelling. He prescribed medication for these symptoms. Dr. Contreras also prescribed muscle relaxants.
In a chart note dated December 22, 1999, claimant reported that she had sneezed violently during the night, resulting in a jarring sensation in her back. After stumbling and almost falling, she developed back pain that radiated into her right hip. Dr. Contreras ordered a MRI, which was done on January 24, 2000. According to the radiologists' report the test showed ". . . a defect at the right lamina at L5-S1 consistent with prior surgery. . . . [C]entrally in the scar on the sagittal cans there is an area which does not show enhancement and a recurrent herniated disc is suspected." The impression included a "small recurrent right paracentral disc protrusion L5-S1." Claimant also consulted Dr. Contreras on January 24, 2000. He agreed with the radiologist, stating that "it does look like she has a recurrent disc on the right at L5-S1." He recommended surgery; however, respondents will not authorize the procedure without a second opinion evaluation. First, respondents asked claimant to travel from her home in Stamps to Little Rock, and she declined. They asked the administrative law judge to order an evaluation with Dr. Kevin McLeod in Arkadelphia.
The deposed testimony of Jane Lehr, Senior Claims Adjuster, was made a part of the record. Ms. Lehr testified that she is aware that Dr. Contreras has recommended redoing claimant's laminectomy. She stated that it is the carrier's opinion that no position may be stated until another physician examines claimant. Ms. Lehr testified that the carrier is seeking a second opinion to determine "if it's advisable that she undergo another surgery."
On cross-examination, Ms. Lehr acknowledged that claimant has not selected any of the physicians from whom she received treatment. She stated that in selecting physicians for second opinion examinations, she considered the travel distance. However, she was unable to state the distance from claimant's home to the cities in question.
The resolution of this case turns on an interpretation of Ark. Code Ann. § 11-9-511:
(a) An injured employee claiming to be entitled to compensation shall submit to such physical examination and treatment by another qualified physician, designated or approved by the Workers' Compensation Commission, as the Commission may require from time to time if reasonable and necessary.
(b) The places of examination and treatment shall be reasonably convenient for the employee.
(c) Such physician as the employee, employer, or insurance carrier may select and pay for may participate in the examination if the employee, employer, or insurance carrier so requests.
(d) In cases where the commission directs examination and treatment, proceedings shall be suspended, and no compensation shall be payable for any period during which the employee refuses to submit to examination and treatment or otherwise obstructs the examination or treatment.
(e) Failure of the employee to obey the order of the commission in respect to examination or treatment for a period of one (1) year from the date of suspension of compensation shall bar the right of the claimant to further compensation in respect to the injury.
In Tibbs v. Dixie Bearings, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1980), the Court of Appeals interpreted § 81-1311. (That provision formerly encompassed a broad range of issues relating to medical care. The language which now constitutes § 11-9-511 was contained in § 81-1311 when Tibbs was decided).
Based on our reading of Tibbs, and construing the statute strictly as we are compelled to do, it is our view that under § 11-9-511, the threshold question is whether the proposed examination is reasonable and necessary. If the examination is reasonable and necessary, the Commission designates or approves a physician. Moreover, we find that even if the exam is reasonable and necessary, the respondent or carrier is not free to send claimant to any physician. However, the employer or carrier is free to ask a physician of its choosing to participate in the exam performed by a physician designated or approved by the Commission. Notably, the place of examination must also be reasonably convenient for the employee. See generally, Wilson v. Armstrong Brothers Tools, Full Workers' Compensation Opinion filed Sept. 1, 1999 (W.C.C. No. E709892).
In the present case, we find that a preponderance of the evidence establishes that a second opinion for pre-surgical evaluation is reasonable and necessary. Whether any particular treatment is reasonable or unreasonable requires weighing the probability of the treatments successfully reducing the disability by a significant amount, against the risk of the treatment to the claimant. See, Larson's Workers' Compensation, Desk Edition, § 13.22. Clearly, a clinical examination involves very little or essentially no risk compared to the risk of the surgery. The potential benefits of a second surgical opinion are, of course, the additional medical judgment brought to bear in determining the probability of relieving current disability through surgery as weighed against the risks of surgery.
The administrative law judge has suggested that the respondents are somehow attempting to harass the claimant, since the respondents requested a second opinion before Dr. Contreras' first surgery, and the respondents again request a second opinion before Dr. Contreras' proposed redo surgery. While circumstances might arise where a pre-surgical second opinion would not appear reasonable and necessary, regardless of who requested the second opinion, a pre-surgical second opinion prior to a repeat surgery in the present case would appear to be prudent, regardless of whether the second opinion had been requested by the claimant or the carrier.
To the extent that the respondents request that the claimant travel from her home in Stamps to the office of Dr. McLeod in Arkadelphia, we find that Arkadelphia would not be a reasonably convenient location for the claimant, if the claimant were required to attempt the trip from Stamps to Arkadelphia using her own transportation (i.e., in her unreliable 1985 pick up truck). However, we find that an examination in Arkadelphia would be reasonably convenient for the claimant, if the respondent provided the claimant transportation from Stamps to Arkadelphia. In the alternative, the claimant's course of past medical treatment indicates that Texarkana is reasonably convenient to the claimant, if she provides her own transportation. Consequently, the respondents have at least two alternatives to have the claimant examined by Dr. McLeod. Compare, Wilson, supra.
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.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ MIKE WILSON, Commissioner
Commissioner Turner dissents.
I must respectfully dissent from the majority opinion in this case.
This represents the second challenge by respondents to the medical judgment of Dr. Freddie Contreras. In my opinion, one was sufficient. In 1999, Dr. Contreras determined that claimant required a laminectomy as a result of a disc herniation at L5-S1 on the right. Respondents requested an IME at the direction of Dr. P.B. Simpson, and claimant agreed. Dr. Contreras' opinion withstood Dr. Simpson's scrutiny. This is significant since Dr. Simpson is often hand-picked by respondents to conduct independent medical examinations.
On September 24, 1999, surgery was performed. Claimant did well until a sneezing spell. She developed back and hip pain, which was reported to Dr. Contreras in December of 1999. A MRI done on January 24, 2000, showed a recurrent disc herniation. Dr. Contreras agreed with the radiologist's interpretation.
Relying on claimant's clinical presentation along with the abnormal MRI, Dr. Contreras opined that an additional surgical procedure was warranted. He has furnished sound reasons for recommending surgical intervention. The clarity with which Dr. Contreras articulated his position is conspicuously absent from Lehr's testimony. She is vague with respect to the reason respondents are seeking an IME.
The medical judgment of Dr. Contreras was validated by a physician selected by respondents, and claimant has consented to the second surgical procedure. Objective testing revealed an abnormality that is often corrected surgically. Therefore, it is unclear what will be accomplished by subjecting claimant to another IME. Under these facts, I cannot agree to a second opinion evaluation.
Based on the foregoing, I respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner