Opinion
CLAIM NO. E514658
OPINION FILED DECEMBER 2, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE BUD ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
In a decision filed March 19, 1997, the Administrative Law Judge found that the respondent is liable for the claimant's independent medical evaluation and testing performed by Dr. Michael Morse, as well as medications prescribed by Dr. Morse for the claimant's continued headaches resulting from her compensable injury. The Administrative Law Judge further held that the claimant failed to prove she is entitled to temporary total disability benefits. Based upon our de novo review of the record and transcripts presented in this case, we affirm the Administrative Law Judge decision.
The claimant contends on appeal, as she did below, that the respondent should be held liable for the independent medical evaluation and testing performed by Dr. Morse. However, the claimant fails to make any argument in her brief or notice of appeal that the Administrative Law Judge erred in not granting her the temporary total disability benefits she was seeking below, although she did appeal the Administrative Law Judge's decision. The respondent contends in their cross-appeal that the Administrative Law Judge erred in finding they were responsible for the claimant's medical expenses related to Dr. Morse's medical evaluation. They specifically contend that the Administrative Law Judge erred in granting what they consider to be a retroactive approval of Dr. Morse's evaluation due to the claimant actually being evaluated by Dr. Morse prior to the first decision in this case. The respondent also contends on appeal that the Administrative Law Judge properly denied the claimant's request for temporary total disability benefits. They specifically contend that the claimant's testimony that she did not miss any work as a result of her injury, along with the fact that she filed for and received unemployment benefits for the period in question, indicates that the claimant was not entitled to temporary total disability benefits.
This is the second time that this case has been before the Administrative Law Judge. In the first decision filed September 25, 1996, the Administrative Law Judge held that medical treatments rendered by Dr. Gary F. Frigon and Dr. Teri Gantner were unauthorized and not the responsibility of the respondent. The Administrative Law Judge further held that the claimant was to undergo an independent medical evaluation to be performed by Dr. Morse at the respondent's expense. Neither the respondent or the claimant appealed that decision to the Commission within thirty days, therefore making that decision final.
The respondent argues that because the claimant was evaluated by Dr. Morse prior to the first decision in this case, the Administrative Law Judge did not have the authority to grant what they contend was a retroactive approval of the evaluation. They contend this is analogous to the prior law concerning retroactive approval of a change of physician, and that any treatment received before the change is approved is not the respondent's responsibility. We hold that this issue is barred byres judicata.
Neither party in this case appealed from the first decision of the Administrative Law Judge in this case which was indeed filed after the claimant received the medical evaluation in question. Because neither party appealed the Administrative Law Judge's decision filed September 25, 1996, the issue of the respondent being liable for the independent medical evaluation is barred by res judicata, as that decision became final after thirty days. See Pine Bluff Warehouse v. Berry, 51 Ark. App. 139, 912 S.W.2d 11 (1995); Rogers v. Darling Store Fixtures, 45 Ark. App. 68, 870 S.W.2d 776 (1994). Ark. Code Ann. § 11-9-711(a)(1) (Repl. 1996), provides that an order or award of an administrative law judge shall become final unless a party to the dispute files a petition for review within thirty days from receipt of the decision or award. The doctrine of res judicata is applied where there has been a final adjudication on the merits of an issue by a court of competent jurisdiction, and the doctrine bars further litigation of all matters litigated and all matters necessarily within the issue which might have been litigated. Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, 719 S.W.2d 114 (1986). Consequently, all claims which are presented and all claims which might have been presented in a proceeding at which a final decision is reached by the Administrative Law Judge or Commission are barred by res judicata unless the decision is appealed within thirty days.
The respondent in this case failed to appeal the Administrative Law Judge's decision finding that they were responsible for the claimant's independent medical evaluation by Dr. Morse, the issue they are currently appealing. Because the respondent failed to appeal the first decision on this issue, we hold that the current issue of Dr. Morse's expenses is barred byres judicata. Accordingly, we affirm the Administrative Law Judge's decision finding, for the second time, that the respondent is liable for Dr. Morse's medical evaluation and testing.
The respondent also contends on appeal that the Administrative Law Judge properly denied the claimant's claim for temporary total disability benefits. While the claimant filed a notice of appeal, the claimant submitted only a one-page letter brief in which she failed to address the issue of temporary total disability benefits. The claimant's brief only discusses the issue of Dr. Morse's medical expenses. The claimant failed to show that she was temporarily totally disabled and remained within her healing period during the period in question. Because the claimant admitted in her deposition that she did not miss any work as a result of the compensable injury, and because the claimant filed for and received unemployment benefits for the period in question, we must affirm the Administrative Law Judge's decision denying the claimant temporary total disability benefits.
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 Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
CONCURRING OPINION
I concur in the determination that the respondents are liable for the evaluation performed by Dr. Morse, but write separately to address the dissent's assertion that the majority is attempting in some way to "retroactively" award a change of physician or an independent medical evaluation.
The dissent suggests that the effective date for a change of physician awarded by the Commission is the date of the order which grants the change of physician. The only case cited by the dissent is Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). However, the claimant in Johnson failed to follow the change of physician rules prior to obtaining treatment from a chiropractor. In the present case, there is no question that the claimant gave the necessary notice under the change of physician rules prior to seeking the disputed evaluation from Dr. Morse. In fact, the claimant did not seek the evaluation until after filing a request for the evaluation and after a hearing on the issue. Therefore, Johnson in no way addressed the question presented in this case: the effective date of an order permitting additional medical treatment. The dissent asserts that the respondents cannot be held liable for medical treatment received pursuant to a request until the date a final order is entered permitting the change of physician or evaluation. However, I believe that precedent and common sense both indicate otherwise.
The Arkansas Workers' Compensation Law requires an employer to provide such medical treatment as may be reasonably necessary for the treatment of a work-related injury received by an employee. Ark. Code Ann. § 11-9-508(a) (1987). However, Ark. Code Ann. § 11-9-514 (1987) sets forth a strict procedure which must be followed if an injured employee desires to change physicians after treatment is provided, and the employer is not liable for a new physician's services unless the claimant follows this procedure. American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983); Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). The Commission does not have the authority to order a "retroactive" change of physician and hold employers liable for medical treatment rendered prior to the date that the claimant files proper notice under the change of physician rules. See, Johnson, supra.
However, the decision in Randall, supra, indicates that the Commission does have the discretion to impose liability on employers for services and treatment rendered between the time the claimant files a petition for a change of physician and the date the Commission actually enters an order authorizing the change. I note that the facts are not clearly enunciated by the Court inRandall, but the Court implies at various points that treatment was obtained after the petition was filed with the Commission but before the Commission actually approved the change. In this regard, the Court made the following statement:
[The claimant] clearly complied with the dictates of [§ 11-9-514] in applying for a change of physician in advance of actually being treated by a doctor of his choice. The Commission acted within its discretion in approving the request. Therefore, we affirm.
This Commission has also previously noted that, where a claimant obtains medical treatment from a new doctor after filing a change of physician but prior to Commission approval of the change, the claimant does so at her own peril and runs the risk that the Commission will not approve the change or that the Commission will not approve a change to the doctor selected by the claimant. See, Paula Reed v. Jefferson Regional Medical Center, Full Workers' Compensation Commission, Aug. 12, 1991 (Claim No. E01866). In Reed, the Commission ultimately found that the respondents were not liable for the medical treatment at issue where the claimant received the treatment prior to the date that the claimant filed a petition for a change of physician.
In my opinion, the Court in Randall and the Commission in Reed properly construed the requirements of the change of physician rules, and I believe that the dissent's position that the change of physician rules must be interpreted to require the claimant to wait until a final order is entered to receive the requested evaluation is unpersuasive in the present case for several reasons. First, I note that requiring the claimant to wait for additional treatment until a final order is entered means that a claimant could be denied medical treatment for months or years while a request for an evaluation proceeds through litigation and appeal. In addition, I note that the claimant has now received precisely the evaluation found reasonably necessary by the administrative law judge in her first order. If we were to reverse the administrative law judge, and find that the respondents are not liable for the evaluation received by the claimant between the time of the hearing and the time of the order granting an evaluation, then the respondents would still be liable for a second evaluation (i.e., a duplicitous second evaluation) in order to comply with the administrative law judge's September 25, 1996. I fail to see any benefit to the respondent in this case in making the respondents pay for a new evaluation rather than the evaluation already provided.
In short, I do not perceive that the General Assembly contemplated the change of physician rules at issue in this case as an avenue to deny the claimant the possibility of any medical treatment or medical evaluation during the course of litigation to obtain a change of physician or an evaluation which the respondents have refused to authorize, so long as the claimant has filed a request for the treatment prior to receiving it. See, Johnson and Randall, supra. In reaching that conclusion, I note that many types of work-related injuries cannot be ignored during the course of months or years of litigation and appeal. However, I certainly agree with the reasoning in Reed that, by obtaining the requested treatment between the time of filing her petition and the time she receives an order granting an evaluation (or change of physician), the claimant bears the risk that the Commission will not approve a change or evaluation or that the Commission will not approve a change or evaluation by the doctor chosen by the claimant.
In the present case, the claimant petitioned the Commission for an evaluation by Dr. Morse. In her September 26, 1996 order, the administrative law judge awarded an evaluation by Dr. Morse. The respondents did not appeal the evaluation award. The claimant underwent an evaluation from Dr. Morse after the hearing on the first claim but prior to the administrative law judge's September 26, 1996 order. In my opinion, the medical evidence indicates that the evaluation Dr. Morse performed was precisely the evaluation that the administrative law judge ordered. In addition, the evaluation was performed by the physician authorized by the administrative law judge. Consequently, after conducting a de novo review of the entire record, and for the reasons discussed herein, I find that the respondents are liable for the evaluation provided by Dr. Morse.
ELDON F. COFFMAN, Chairman
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that respondent is responsible for the medical treatment rendered by Dr. Michael Morse for an evaluation of claimant's headache pain. Based upon my de novo review of the entire record, I find that claimant has failed to meet her burden of proof on this issue.
This case was the subject of a previous hearing on June 11, 1996. During the testimony at that hearing claimant stated that she had been referred by her unauthorized physician to Dr. Morse to evaluate claimant's headache complaints. Claimant testified that she could not see Dr. Morse since respondent had refused to pay for his treatment and since she did not have the funds to pay for the services herself. After the hearing, but prior to the decision of the Administrative Law Judge, claimant was seen by Dr. Morse on July 2, 1996. The Administrative Law Judge did not enter her opinion following the June 11, 1996, hearing until September 25, 1996. In the September 25, 1996, Opinion the Administrative Law Judge did award an independent medical examination to be performed by Dr. Michael Morse for a determination as to the resolution of claimant's headaches subsequent to her compensable injuries. Now the majority is attempting to force respondent to pay for the treatment of Dr. Morse which was rendered prior to the independent medical evaluation being awarded. In my opinion, we do not have the authority to award a retroactive independent medical evaluation.
This case does present a unique factual situation. Claimant was referred to Dr. Morse by an unauthorized physician. Claimant received treatment from Dr. Morse prior to the Administrative Law Judge approving such treatment in the form of an independent medical evaluation. The Commission does not have broad discretion to retroactively approve a change of physician.Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). Since claimant came under the care of Dr. Morse prior to the award of the independent medical evaluation, it is clear that claimant arrived at Dr. Morse's office outside the authorized chain of physicians. We cannot retroactively approve claimant's change from her treating physician to Dr. Morse even on the grounds that claimant was eventually awarded treatment by Dr. Morse, see Johnson, supra. Consequently, I find that claimant has failed to meet her burden of proof with regard to the treatment rendered by Dr. Morse. Moreover, the Administrative Law Judge awarded an independent medical "evaluation" to be performed by Dr. Morse. An evaluation is distinguishable from an award of "treatment". It may well be that after an "evaluation" it is determined that additional "treatment" is not necessary. The concurring opinion asserts that once a petition for a change of physician has been filed, a claimant may proceed to seek treatment. In this case treatment was not awarded. Therefore, I find that the cases relied upon in the concurring opinion are not applicable. The Administrative Law Judge and the prevailing opinion have retroactively awarded an independent medical evaluation which I contend is inappropriate. Since treatment was not awarded, it cannot be argued that claimant was in any way denied such treatment while the litigation process ensued. Had claimant returned to Dr. Morse after the independent medical evaluation was awarded, I might be persuaded to find that treatment rendered by Dr. Morse after the independent medical evaluation award would be reasonable and necessary and the responsibility of respondent. However, this did not occur. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner