Thorpe v. Wal-Mart Stores, Inc.

Full title: MARY THORPE, EMPLOYEE, CLAIMANT v. WAL-MART STORES, INC., EMPLOYER…

Court: Before the Arkansas Workers' Compensation Commission

Date published: May 8, 1998

1998 AWCC 167 (Ark. Work Comp. 1998)

Opinion

CLAIM NO. E504770

OPINION FILED MAY 8, 1998

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by THOMAS LEDBETTER, Attorney at Law, Harrison, Arkansas.

Respondent represented by CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

OPINION AND ORDER

[2] Respondent appeals from a decision of the Administrative Law Judge filed July 3, 1997. Based upon our de novo review of the entire record, we find that the decision of the Administrative Law Judge must be affirmed as modified. Specifically, we affirm the decision of the Administrative Law Judge finding that claimant has proven entitlement to a change of physician. However, we modify the Administrative Law Judge's decision and find that claimant is entitled to a change of physician to Dr. Wayne Harris with the Arkansas Orthopedic Clinic in Fayetteville, Arkansas.

Claimant sustained an admittedly compensable injury to her left lower extremity on November 18, 1994. As a result of that injury claimant was originally seen by Dr. Charles Horton who eventually referred claimant to Dr. Alice Martinson. Dr. Martinson first saw the claimant on March 23, 1995, and diagnosed claimant with "a partial rupture of the posterior tibial tendon." Dr. Martinson advised that a surgical procedure may be warranted. On March 30, 1995, claimant came under the care of Dr. Charles Ledbetter with Ozark Orthopedic Associates in Harrison, Arkansas. Dr. Ledbetter diagnosed claimant with a "remote rupture, posterior tibial tendon or posterior tibial tendon insufficiency, left." On April 3, 1995, claimant underwent an exploration of the posterior tibial tendon on the left lower extremity performed by Dr. Ledbetter. In his discharge summary, Dr. Ledbetter described claimant's diagnosis as "posterior tibial tendon insufficiency secondary to rupture of the posterior tibial tendon on the left, at the level of medial malleolus." Claimant remained in Dr. Ledbetter's care for follow-up treatment through November of 1996.

Although Dr. Ledbetter assigned claimant a physical impairment rating and released claimant to restricted duty, he never released claimant from his care. On her own accord, claimant was examined by Dr. Paul Flicker, an orthopedic surgeon in Dallas, Texas. In his January 10, 1997, correspondence to claimant's attorney Dr. Flicker opined that claimant was in need of continued medical care and possibly additional surgery. Dr. Flicker recommended that claimant be evaluated by Dr. Don Mauldin, also of Dallas, Texas since Dr. Mauldin specializes in foot and ankle disorders.

Arkansas Code Ann. § 11-9-514 establishes the procedures which must be followed if the injured employee desires a change of physician. This section provides:

(a)(1) If the employee selects a physician, the Commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the Commission that there is a compelling reason or circumstance justifying a change.

(2)(A) If the employer selects a physician, the claimant may petition the Commission one time only for a change of physician and if the Commission approves a change, with or without a hearing, the Commission shall determine the second physician and shall not be bound by the recommendation of the claimant or respondent.

This provision clearly makes a distinction for a change of physician when a claimant chooses his own physician and when the employer selects the first treating physician. In this case, the evidence reveals that the employer choose Dr. Horton, the first treating physician. Ark. Code Ann. § 11-9-514(a)(2)(A) provides that when the employer selects the physician, the Commission may approve the change and it is not bound by the recommendation of claimant or respondent. Although this subsection does not require a compelling reason or circumstance justifying a change as when the employee selects a physician, we have previously found that a change of physician even where the employer makes the initial selection will not be automatically granted merely because the claimant requests the change. The Legislature's use of the phrase ". . . if the Commission approves the change . . ." clearly contemplates the Commission will retain discretion to review petitions for a change of physicians on their merits and to approve or disprove such changes. The Commission has held on numerous occasions that a claimant's personal preference to change physicians is not a sufficient reason to grant a change of physician. See Shirley Serrato v. Pentair Industries, Full Commission Opinion January 9, 1992, ( D912632); Ronald Chapman v. Bill Bland Trucking, Full Commission Opinion October 22, 1991, ( D903638) and Rose Maples v. Accurate Plastic Moldings, Full Commission Opinion June 26, 1996 ( E504344).

Although we have held in the past that a claimant's personal preference for a change of physician is not sufficient evidence warranting a change, in the present claim we find that an extenuating circumstance exists warranting claimant's request. As late as March 8, 1996, almost one year after undergoing surgery, Dr. Ledbetter noted in his office notes that claimant was still having a lot of lateral column pain in her left foot and that she still has the plano valgus type of deformity. After corrections made to claimant's shoe insert, Dr. Ledbetter noted that claimant had medial control of her foot yet she still had pain over the medial aspect of her arch. Likewise in January of 1997 when claimant was examined by Dr. Flicker, Dr. Flicker noted:

. . ., she developed medial support collapse as the result of posterior tibial tendon discontinuity and has not improved despite an attempt at surgical intervention. Currently, the patient remains significantly disabled as a result of the injury sustained to her left ankle. . . . Ms. Thorpe needs continued medical care and will most probably require additional surgery.

In our opinion, these medical records indicate that claimant is entitled to a change of physician. Dr. Ledbetter continues to note that claimant's left lower extremity is causing claimant significant discomfort and Dr. Flicker, indicates that claimant may require additional surgery.

While we find claimant has proven by a preponderance of the evidence that she is entitled to a change of physician, we find that we are not bound by her personal choice of physician. Ark. Code Ann. § 11-9-514(a)(2)(A) provides that the Commission, not the parties, has the authority to choose the physician. In our opinion a change of physician to Dr. Wayne Harris with the Ozark Orthopedic Clinic in Fayetteville, Arkansas is, in order. Unlike Dr. Mauldin, selected by claimant, Dr. Harris is subject to the fee schedule and Arkansas Workers' Compensation Rule 30. Likewise, as an Arkansas physician, if claimant requires additional surgery the hospital and all supporting medical care providers are likewise subject to the Arkansas fee schedule. We further find that all efforts to provide claimant with reasonable and necessary medical care within the State of Arkansas when excellent qualified physicians are available must be considered. In the present case, claimant has failed to even consider additional treatment from a qualified Arkansas physician. Claimant has merely stated that she desires treatment from a Texas physician. In our opinion, claimant has failed to prove by a preponderance of the evidence that a change to a Texas physician is warranted when the evidence shows competent physicians are available to treat claimant's condition in Arkansas and are closer in proximity to claimant's residence.

In our opinion, this case is clearly distinguishable fromMilligan v. West Tree Service, 57 Ark. App. 14, 941 S.W.2d 434 (1997). In its supplemental opinion on granting rehearing in part and denying rehearing in part the Court held that allowing a claimant's request for medical services by an out of state physician was authorized when the evidence showed that there wasno medical care provider in Arkansas who was qualified andwilling to provide such service. In the present case, claimant has not even considered obtaining treatment from a local Arkansas Orthopedic Surgeon. Dr. Wayne Harris is a noted physician, specializing in ankle and foot problems and is therefore our recommendation for the physician of choice.

Therefore, for those reasons stated herein, we find that claimant has proven entitlement to a change of physician. However, we modify the decision of the Administrative Law Judge and find that the change of physician should be granted to Dr. Wayne Harris with the Ozark Orthopedic Clinic in Fayetteville, Arkansas.

IT IS SO ORDERED.

[13] Commissioner Humphrey concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION

[15] While I concur with the opinion of the majority granting claimant's petition for a change of physician, I must respectfully dissent from the majority's decision to select Dr. Harris, as opposed to Dr. Mauldin of Dallas, Texas.

I agree that this case is distinguishable from Milligan v. West Tree Service, 57 Ark. App. 14, 941 S.W.2d 434 (1997), since the latter involved a claimant whose injury required treatment from a relatively small pool of specialists. Claimant's pending malpractice suit against one of those specialists likely precluded the attainment of any specialty care in the state of Arkansas. Under those circumstances, the Court of Appeals affirmed our decision to grant claimant a change of physician to a doctor in Texas. In the instant case, claimant seeks to change her care directly from Dr. Charles Ledbetter, her original operating physician, to Dr. Don Mauldin, an orthopedic surgeon who specializes in foot difficulties in Dallas, Texas.

I note that Dr. Paul L. Flicker, the first Texas physician that claimant consulted, wrote on January 10, 1997, that Dr. Mauldin possessed "recognized experience in the residual[s] of posterior tibial tendon injuries." Because Dr. Mauldin has experience with the precise type of difficulty from which claimant suffers, I am persuaded that the Administrative Law Judge's decision to entrust claimant's care to Dr. Mauldin should be affirmed.

I am compelled to object to the majority's assertion that the Court of Appeals, in its supplemental opinion to Milligan, has "held that allowing a claimant's request for medical services by an out of state physician was authorized when the evidence showed that there was no medical care provider in Arkansas who wasqualified and willing to provide such service." (Original emphasis). In its supplemental opinion, the court simply stated that:

Clearly, it would violate an employer's statutory duty to provide medical care if that care was denied simply because there was no medical service provider in Arkansas who was qualified and willing to provide the service.

Rather than the specific holding suggested by the majority, I believe that the foregoing passage is no more than a truism stated in hypothetical fashion. I also note that in Milligan, the Court of Appeals specifically rejected the notion that a change to an out-of-state physician depended on a showing "that there were no medical service providers licensed in Arkansas that could provide the treatment that claimant required." Also:

If, as cross-appellant concedes, section 11-9-102(17) does not prohibit treatment by out-of-state medical-service providers, there is no language in the statute which places on a claimant the burden of first proving that there are no physicians licensed in Arkansas who can provide the necessary treatment.

While the Court used its supplemental opinion in Milligan to retract the definition of "medical services" (as per Ark. Code Ann. § 11-9-102(17) (Supp. 1997)) it eventually offered in its original opinion, the Court does not appear to have expressly retreated from the general position cited above. For this reason, in the instant claim, I do not believe it is utterly imperative that claimant exhaust her treatment options in Arkansas before being sent to a specialist in Texas who is extraordinarily qualified for claimant's specific difficulty.

Finally, in selecting Dr. Harris over Dr. Mauldin, the majority stresses that Dr. Harris "is subject to the fee schedule and Arkansas Workers' Compensation Rule 30." This factor is not particularly significant in this particular case because the record contains a written agreement by Dr. Mauldin to abide by the fee schedule and Commission Rule 30. Furthermore, claimant indicated that she would not press any claims for travel and related expenses, or temporary total disability, if the change is granted to Dr. Mauldin.

For the foregoing reasons, I concur with the finding that claimant is entitled to a change of physician but must respectfully dissent from the selection of Dr. Harris as claimant's treating physician.

PAT WEST HUMPHREY, Commissioner