Opinion
CLAIM NO. E507988
OPINION FILED SEPTEMBER 10, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHANNON MUSE CARROLL and the HONORABLE RICHARD MUSE, Attorneys at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Reversed.
OPINION AND ORDER
[2] This case comes before the Full Workers' Compensation Commission upon remand from the Arkansas Court of Appeals. The Court of Appeals has directed the Full Commission "to make specific findings as to whether the parties made any agreement as to a choice of an initial physician or whether either party acquiesced to the other's choice." The Court further directed the Commission to "make specific findings whether appellee provided medical services within a reasonable time after knowledge of appellant's injury." The Full Commission has again reviewed the entire record de novo. We find that the parties agreed to choice of an initial physician, that the respondents did not acquiesce in the claimant's choice of an unauthorized physician, and that the respondents provided reasonable and necessary medical treatment in a timely manner. We thus reverse the decision of the administrative law judge and dismiss this claim. The claimant, age 29, became employed with Engineered Specialty Plastics in January, 1995. The claimant received an "employee handbook" when he was hired; the claimant testified that the handbook instructed employees to present to St. Joseph's Regional Health Center if they sought medical treatment for a workplace injury. The parties stipulated that the claimant sustained a compensable injury on June 6, 1995. The claimant testified that he injured his right knee on that date:
Went to place a part in a box. I didn't step far enough or twisted, and when I twisted, my knee kind of gave this grounding, pop sound and buckled on me. I thought I sprained it.
The claimant did not report this unwitnessed injury to a supervisor, but completed the one-hour remainder of his shift and went home.
As he arose from bed the next morning, claimant testified, his right knee felt "like I stepped on Jello, it wasn't there." The claimant said his knee buckled "and threw me in the floor." The claimant's girlfriend went to a neighbor's house and called the claimant's mother. The claimant said his mother came and drove him to the "nearest hospital," AMI National Medical Center, rather than the facility which the claimant knew was designated for on-the-job injuries, St. Joseph's Regional Health Center. The record from AMI National Medical Center indicates that the claimant said he twisted his knee, but that the injury was "not workman's comp." The medical history further indicates that the claimant had knelt on his bed at home the previous evening, June 6, 1995, and felt something "pop" in his knee; upon arising the next morning, the claimant had pain on weight bearing, but there was no report of a Jello-like buckling of the knee and falling to the floor. There was minimal edema of the right knee, and x-ray revealed no fracture. The diagnosis was right knee strain, probable lateral meniscus injury, and the claimant was given medication and a knee immobilizer. (The claimant denied at hearing that he kneeled beside his bed, as the medical report indicates.) The Emergency Department Discharge Instructions listed Dr. Kleinhenz as the follow-up physician, appointment June 14, 1995.
After his discharge from AMI Medical Center, the claimant reported to work that afternoon, June 7, 1995. The claimant testified that he notified his supervisor of the previous day's alleged injury and subsequent unauthorized hospital visit. The claimant's supervisor helped him submit the proper paperwork "so to try to follow the right procedures." The claimant testified that he told Sharon McConnell, the employer's personnel manager, that he had an upcoming appointment with Dr. Kleinhenz. Ms. McConnell testified that she told the claimant that an appointment with the company doctor needed to be made, and that the respondents would not pay for Dr. Kleinhenz' treatment. Ms. McConnell testified, "To my best recollection, I didn't tell him who the company doctor was, but I told him he did need to — we needed to make an appointment with the company doctor." In contrast, the claimant testified that Ms. McConnell told him she "was unsure" if the respondents would pay for Dr. Kleinhenz' treatment. Despite being informed that treatment from Dr. Kleinhenz would not be authorized by the respondents, and rather than seeking reasonable and necessary medical treatment as provided in the employee handbook, the claimant opted to "stick with Dr. Kleinhenz."
The claimant continued working full duty despite the alleged traumatic injury, and he was examined by Dr. Kleinhenz on June 14, 1995. Dr. Kleinhenz thought the claimant had a meniscal tear, and prescribed medication and physical therapy at "Team Rehab." Dr. Kleinhenz reported on July 5, 1995 that the claimant's knee was better but still bothered him, and he asked the claimant to continue working with physical therapy. Approximately two weeks after the injury, claimant testified, "they got me an appointment with Sloand," the authorized orthopaedic physician. The claimant continued to work full-time for the respondents and presented to Dr. Timothy P. Sloand on July 6, 1995. The claimant said that Dr. Sloand prescribed the same conservative treatment that he was already receiving from Dr. Kleinhenz. The claimant decided he would rather conservatively treat with Dr. Kleinhenz. On September 20, 1995, Dr. Kleinhenz stated that he "was not impressed" with the reliability of normal MRI findings in the claimant's knee. He wrote, "I think that he may well have a meniscal tear but we are going to try to treat this conservatively since he is at work and he is able to do this without a great deal of difficulty."
The respondents controverted the charges for the claimant's unauthorized medical treatment from AMI National Park Hospital and Dr. Kleinhenz. The employee filed a workers' compensation claim, contending that he was originally treated at AMI Hospital and then referred to Dr. Kleinhenz for additional treatment; that the respondents should be responsible for treatment by said providers, including continuing reasonable and necessary medical treatment; and that the respondents unilaterally attempted, without justification, to change the claimant's treating physician from Dr. Kleinhenz to Dr. Timothy Sloand. The respondents contended that the claimant's continued problems, if any, were unrelated to the June 6, 1995 injury, and that Dr. Sloand was the claimant's only authorized treating physician.
In an opinion filed January 19, 1996, an administrative law judge found that the respondents are responsible for all medical and related expenses incurred as a result of the compensable injury, including, but not limited to, the outstanding bill of AMI National Medical Center and Dr. Kleinhenz' treatment. In addition, the administrative law judge found that the respondents were responsible for continued reasonable and necessary medical treatment provided by Dr. Kleinhenz. The administrative law judge discussed Ark. Code Ann. §§ 11-9-508 and 11-9-514, stating that the respondents do not have "an absolute right to select the initial treating physician." Citing Welch v. Tri-County Shirt Co, 49 Ark. App. 112, 897 S.W.2d 575(1995), the administrative law judge declared "without merit" the respondents' contention "that they have an absolute right of first choice of physician and are not responsible for the treatment obtained without prior approval." The administrative law judge found that the claimant has shown that all of his treatment to date was reasonable, necessary, and the responsibility of respondents. The respondents appealed to the Full Commission.
In an opinion filed December 5, 1996, the Full Commission reversed the decision of the administrative law judge. The Full Commission opined that there is nothing in the record to support the allegations that the claimant needed emergency medical treatment after the compensable injury. The emergency room record did not mention the claimant's knee "buckling," as he had testified. The Commission noted that the claimant was advised prior to undergoing treatment with Dr. Kleinhenz that the employer would not pay for said treatment. The respondents appointed the claimant to see Dr. Sloand, the company physician, but the claimant still presented to Dr. Kleinhenz. Ark. Code Ann. § 11-9-508 states that the employer shall promptly provide the injured employee with medical services, which the employer in this case did. The Commission found that "the respondents offered medical services to the claimant yet he chose to seek medical treatment on his own." The Full Commission thus found that the respondents should not be held responsible for the unauthorized treatment. The claimant appealed to the Arkansas Court of Appeals.
The Court of Appeals reversed and remanded in an opinion delivered October 29, 1997 (CA 97-257). The Court cited Ark. Code Ann. § 11-9-508(a), which states that the employer shall promptly provide for an injured employee such medical and hospital services "as may be reasonably necessary in connection with the injury received by the employee." Ark. Code Ann. § 11-9-508(b) states that if the employer fails to provide these medical services within a reasonable time after knowledge of the injury, the Commission may direct that the injured employee obtain the medical service at the expense of the employer, and any emergency treatment afforded the injured employee shall be at the expense of the employer. The claimant had argued to the Court of Appeals that the respondents did not promptly provide medical services after knowledge of the injury, and that the respondents should be responsible for the treatment by Dr. Kleinhenz and the expense of the emergency room visit at AMI. The Court found:
The Commission stated that the employer "promptly provided" the injured employee with medical services by specifically setting
forth procedures in an employee handbook. The Commission concluded that "the fact that the claimant sought medical attention in controversion of that provided by the respondents does not invoke responsibility on behalf of the respondents." The Commission's decision, without further findings, conflicts with our decision in Welch v. Tri-County Shirt Co., 49 Ark. App. 112, 897 S.W.2d 575 (1995). In Welch, we noted that Ark. Code Ann. § 11-9-508 speaks only to the employer's duty to provide medical services or bear the expense of medical services, not to the method of providing medical treatment. As inWelch, we reverse and remand on this point for the Commission to make specific findings as to whether the parties made anyagreement as to a choice of an initial physician or whether either party acquiesced to the other's choice.
The Court noted that the employee handbook had not been made part of the record. Also, the Court directed the Commission "to make specific findings whether appellee provided medical services within a reasonable time after knowledge of appellant's injury," pursuant to Ark. Code Ann. § 11-9-508(b).
Following the Court's remand, the Full Commission remanded the matter to the administrative law judge, so that he could supplement the record with the respondent-employer's handbook in force on June 7, 1995. The Commission also remanded in order to resolve the issue of whether the parties made any agreement as to a choice of an initial physician, or whether either party acquiesced to the other's choice of physician. After submission of a handbook by the respondents and a motion to strike by the claimant, the Full Commission in January, 1999 directed the administrative law judge to determine and adjudicate whether the employee handbook preferred by the respondents "is indeed the handbook in effect at the time of the claimant's June, 1995 compensable injury." The administrative law judge corresponded with counsel on April 6, 1999:
This is to confirm the stipulation announced at the April 2, 1999, supplemental hearing that the handbook introduced at said hearing
was the employee handbook in effect on June 6, 1995, the date of claimant's admitted injury.
* * *
Since the parties have now stipulated to the authenticity of the handbook, made a part of the record as Commission Exhibit 1 to the supplemental hearing, the record required by the Full Commission Order of August 5, 1998, is now complete.
For reversal of the administrative law judge's January, 1996 opinion, the respondents cite the "Engineered Specialty Plastics Employee Handbook For Hourly Rated Employees," "VI, Your Benefits," Workers' Compensation:
As required by Arkansas state law, ESP provides workers' compensation for all employees. If you have an injury on the job notify your supervisor or the Personnel Department immediately. If you do not notify your supervisor and/or the Personnel Department of your injury on the same day of injury, it may affect your claim eligibility.
It will be your responsibility to make sure any injury is reported correctly and timely. In addition, you must be under the direct care of the company doctor (or to a doctor to whom you are referred by the company doctor) in order for medical claims to be eligible for payment. Failure to follow correct procedure can result in your claims for workers' compensation being denied.
The company doctor is to be the first physician, state the respondents, and thereafter there must be direct referrals from that company doctor. The respondents note the previous Full Commission decision that "Respondents at all times provided prompt medical services to the claimant." The respondents argue that the company handbook outlined the parties' agreement, and that the respondent-employer "never acquiesced from its company doctor." Emergency medical care was readily available, yet the claimant's mother intervened and "unilaterally instead took him to AMI," which was unauthorized treatment.
In his brief before the Full Commission, the claimant states that the employee handbook was not a part of the record during the administrative hearing. The claimant asserts, ipse dixit, that the Full Commission cannot now make the handbook a part of the record and then rely on it as evidence. Nor, says the claimant, is the handbook codified. The Arkansas Code, statutes, case law, and Commission rules must control. After the claimant's knee "buckled," he went to the nearest emergency room, at AMI National Park. Although the claimant now concedes that St. Joseph's Regional Health Center is the company's emergency hospital, "that information is not in the company handbook." The claimant's argument in this regard is erroneous. The employee handbook clearly lists St. Joseph's as the hospital for on-the-job injuries.
ISSUES ON APPEAL TO THE FULL COMMISSION
A. Whether the parties agreed to a choice of initial physician, or whether either party acquiesced to the other's choice?
After de novo review of the entire record, we again find that the respondents should not be held responsible for the treatment provided by AMI and Dr. Kleinhenz. In this regard, we specifically find that the claimant agreed that he had to initially treat with the company physician. The claimant testified that he was aware of the guidelines contained in the company handbook, to wit: "You must be under the direct care of the company doctor (or to a doctor to whom you are referred by the company doctor) in order for medical claims to be eligible for payment." The company handbook explicitly provides that St. Joseph's Regional Health Center is the designated hospital for workplace injuries. The respondents' personnel manager expressly told the claimant that the respondents would not be responsible for Dr. Kleinhenz' treatment, before the claimant ever presented to Dr. Kleinhenz. The respondents controverted any treatment to the claimant by Dr. Kleinhenz. The Commission therefore finds, from a preponderance of the evidence, that the respondents clearly did not "acquiesce" in the controverted treatment.
B. Whether the respondents provided medical treatment within a reasonable time after knowledge of the claimant's injury?
Following de novo review, we find that the respondents provided timely, reasonable, and necessary medical treatment for the compensable injury. First, the Full Commission previously determined, and we again find, that there was no "emergency" causing the claimant to seek treatment at AMI, instead of the company hospital. There is no medical record of his knee "buckling." It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). The Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). In the present matter, the claimant's account of the agreed compensable injury was not credible when compared to the medical records. The record does not support the claimant's assertion that the nature of his minimally-edematous knee compelled him to seek "emergency" treatment at AMI, rather than St. Joseph's. The claimant presented to an unauthorized medical facility during business hours, returned to work, and later presented to an unauthorized orthopedic physician.
Second, the claimant did not afford the respondents an opportunity to provide reasonable and necessary medical treatment for his purportedly work-related swollen knee as agreed to pursuant to the company handbook.
The claimant testified that he twisted his knee on June 6, 1995, yet he did not inform the respondents of same, completed his shift, and went home. After the claimant's knee allegedly "threw" him the next morning, the claimant's mother drove him to AMI National Medical Center, rather than the agreed health care facility, St. Joseph's. The emergency room record at AMI described pain upon weight bearing, but did not include the claimant's testified history of a buckle and fall. The only objective finding was minimal edema; objective diagnostic testing was negative. The claimant was treated conservatively, released, and returned to work that afternoon, June 7, 1995. The claimant testified that AMI Medical Center was five minutes' drive from his home, and that it took eight to ten minutes to travel to St. Joseph's. We respectfully fail to see from the record any sort of "emergency" that prevented the claimant or his mother from traveling an additional three to five minutes for authorized, reasonable, and necessary medical treatment provided by the respondents at St. Joseph's Regional Health Center.
In any event, the claimant went to work and notified the employer of his unauthorized medical treatment at AMI. The claimant's supervisor immediately assisted in completing the necessary paperwork, so that the respondents could timely provide authorized medical treatment. The personnel manager informed the claimant that she would arrange reasonable and necessary medical treatment, but the claimant instead presented to Dr. Kleinhenz. The claimant returned to full work duty, and Dr. Kleinhenz examined him on June 14, 1995, seven days after the purported emergency. Dr. Kleinhenz treated the claimant conservatively, and the claimant missed no work. Despite the claimant's unwillingness to follow company policy in securing authorized medical treatment for his minor, yet agreed compensable injury, the respondents arranged orthopedic treatment with Dr. Timothy Sloand. We note that Dr. Sloand also treated the claimant conservatively. We agree with the respondents that the employer cannot be faulted for the claimant's intransigence in seeking medical treatment for his right knee swelling. Under the circumstances, we find that the greater weight of the credible evidence establishes that the respondents provided the claimant medical treatment within a reasonable time after knowledge of the injury, but that the claimant simply failed to avail himself of this treatment.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that the parties agreed that treatment for the claimant's compensable injury was to be provided by St. Joseph's Regional Health Center and Dr. Timothy Sloand. We find that the respondents did not acquiesce to the unauthorized treatment provided by AMI National Medical Center and Dr. Kleinhenz. Further, we specifically find that the respondents provided medical services within a reasonable time after knowledge of the claimant's injury. Therefore, we reverse the January 19, 1996 opinion of the administrative law judge, and we dismiss this claim.
IT IS SO ORDERED.
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Commissioner Humphrey dissents.