Opinion
CLAIM NO. E304986
OPINION FILED MAY 10, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by CURT HUCKABY, Attorney at Law, Lake City, Arkansas.
Respondents represented by BILL PENIX, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an opinion of the Administrative Law Judge filed on February 23, 1994.
The Administrative Law Judge found that claimant's rotator cuff tear is causally related to a compensable injury sustained in February 1993; that claimant is entitled to temporary total disability benefits from February 14, 1993 through August 30, 1993, except for those periods of time when claimant tried to return to work; and that claimant is entitled to medical benefits in connection with care provided by Dr. Wolosyn.
Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark. Code Ann. § 11-9-705 (a)(3) (Supp. 1993.) Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). After our de novo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
Prior to February 1993, claimant had never had any problems with his right shoulder. On February 13, 1993, claimant sustained an admittedly compensable injury when he felt his shoulder pop while lifting. After X-rays were taken in the emergency room at a local hospital, respondents scheduled claimant to see Dr. Pollack. Dr. Pollack diagnosed acute right shoulder muscle strain and bursitis. Claimant understandably became dissatisfied with Dr. Pollack when he cut claimant's shoulder while injecting it. Claimant, on his own, saw Dr. Wolosyn on or about February 20, 1993. Thereafter the employer sent claimant to Dr. Gaylon. Claimant has consistently given a history of a work-related injury to his shoulder to each of these physicians. However, Dr. Gaylon ordered an MRI scan of claimant's neck, rather than his shoulder. Thereafter, Dr. Gaylon released claimant to return to work without restrictions. When his condition did not improve, claimant returned to Dr. Wolosyn on May 13, 1993 and again related a history of a shoulder injury at work. Dr. Wolosyn ordered an MRI scan, which revealed an abnormality in claimant's shoulder and surgery was eventually performed. This surgery alleviated claimant's difficulties. Based on claimant's credible testimony, the consistent history of a work-related injury to his shoulder provided to each treating physician and the complete absence of any evidence of an independent intervening cause, we find that claimant has proven by a preponderance of the evidence that his shoulder difficulties are causally related to the employment.
Respondents contend that claimant made an unauthorized change of physician to Dr. Wolosyn in May 1993. Claimant did see Dr. Wolosyn in February 1993 but is not contending that respondents are liable for this expense. The record contains a letter from claimant received by the Commission on April 5, 1993, which constitutes a petition for a change of physician. This is obviously before claimant returned to Dr. Wolosyn in May 1993. Since Dr. Pollack and Dr. Gaylon failed to order proper diagnostic studies and thus failed to diagnose claimant's shoulder condition, we find that claimant is entitled to a change of physician to Dr. Wolosyn, effective April 5, 1993, the date the petition was filed.
Concerning temporary total disability, claimant was released by Dr. Wolosyn on August 30, 1993. Claimant presented credible testimony that he was incapable of working from February 13, 1993 through August 30, 1993. Based on this evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for temporary total disability from February 13 through August 30, 1993, except those periods of time when claimant tried to return to work.
The medical treatment received for claimant's shoulder difficulties are obviously related to the compensable injury. Dr. Wolosyn correctly diagnosed the abnormality in claimant's shoulder, performed surgery, and claimant's condition improved. Based on this evidence, we find that the treatment provided by Dr. Wolosyn was reasonable and necessary.
Accordingly, we find that claimant has proven by a preponderance of the evidence that his shoulder difficulties are causally related to the employment; that claimant is entitled to a change of physician to Dr. Wolosyn, effective April 5, 1993, the date the petition for a change of physician was filed; that claimant is entitled to benefits for temporary total disability from February 13 through August 30, 1993, accept those periods of time when claimant tried to return to work; and that the treatment provided by Dr. Wolosyn was reasonable and necessary. Respondents are directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant has proven by a preponderance of the credible evidence that the torn rotator cuff was causally related to his work-related injury on February 13, 1993; that claimant proved by a preponderance of the credible evidence that he was temporarily and totally disabled from February 14, 1993 through August 30, 1993 except for those dates which he worked and earned wages; that claimant complied with the change of physician requirements as set forth in A.C.A. § 11-9-514; and, that Dr. Woloszyn's treatment beginning May 13, 1993 was reasonable and necessary and related to the compensable injury.
Claimant sustained a work-related injury on February 13, 1993 in which his "shoulder popped". Claimant was taken to the emergency room and seen by several physicians. He was eventually released to return to work full duty by Dr. Galyon on April 27, 1993 with no permanent impairment. Claimant presently contends that he is entitled to additional medical treatment in that he petitioned to change physicians on April 5, 1993 and thereafter sought continuing care from Dr. Woloszyn on May 13, 1993; that he is entitled to temporary total disability benefits; and, that he is entitled to medical treatment beginning on May 13, 1993 from Dr. Woloszyn. Respondent contends that claimant was released to return to work on April 27, 1993 and that Dr. Woloszyn's treatment is not reasonable and necessary and related to a compensable injury and that claimant failed to comply with the change of physician requirements as set forth in A.C.A. § 11-9-514.
The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. Faulkner Radio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H. Knight Co., 220 Ark. 333, 248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
Claimant contends that he sustained a compensable injury in the form of a rotator cuff tear on February 13, 1993. However, a preponderance of the credible evidence does not support claimant's contention that his rotator cuff tear is causally related to his work-related injury. Shortly after his accident, claimant's supervisor took him to the emergency room in Osceola, Arkansas. Claimant received x-rays and was released to return home. Claimant was subsequently seen by Dr. George Pollock. Dr. Pollock examined claimant and diagnosed him with a shoulder strain and bursitis. There is some testimony that claimant insisted upon receiving medication. After being treated for approximately two weeks, claimant was referred by Dr. Pollock to Dr. James Galyon, an orthopaedic surgeon in Memphis. Dr. Galyon treated claimant for approximately six weeks and released him to return to full duty with no permanent impairment on April 27, 1993. Drs. Pollock and Galyon's medical treatment consisted of repeat x-rays, physical therapy and an MRI of the cervical spine. No diagnosis other than bursitis and a shoulder strain was ever made.
Claimant independently sought treatment by Dr. Jobe at the Campbell Clinic. Dr. Jobe performed an MRI which was normal except for signs of arthritis. In my opinion, it is clear that prior to April 27, 1993, claimant did not have a rotator cuff tear. It is not persuasive that Drs. Pollack, Galyon and Jobe, misdiagnosed or could not find, despite running sophisticated medical tests, a rotator cuff tear. Therefore, in my opinion, there is insufficient evidence to support a causal connection between claimant's rotator cuff tear and his work-related injury.
Furthermore, in my opinion, claimant failed to prove by a preponderance of the credible evidence that he properly petitioned for a change of physicians. The April 5, 1993 letter which majority refers to as a Petition for Change of Physician is not a proper petition. This letter is a handwritten letter from claimant to Faydeane Gray espousing his dissatisfaction with his treating physicians. Claimant readily acknowledges that after this correspondence he was notified by respondent carrier and that he was asked to contact them concerning a change of physician. Claimant further acknowledges that he did not respond to respondent's correspondence. Additionally, on May 26, 1993, a letter was filed by claimant's attorney again requesting a change of physician to Dr. Wallace. However, Dr. Wallace is an unknown. He was not mentioned during the hearing. In my opinion, claimant has failed to prove by a preponderance of the credible evidence that he followed the change of physician rules. Therefore, the approval of Dr. Woloszyn's treatment is in error.
Also, a review of the evidence indicates that claimant was not temporarily and totally disabled from February 14, 1993 through August 30, 1993. Claimant was released to return to work, full duty, by his treating physician, Dr. Galyon, on April 27, 1993. No physician including Dr. Woloszyn took claimant off work subsequent to that date. There is insufficient testimony in evidence that claimant was unable to work. In my opinion, the majority relied upon speculation and conjecture in assessing temporary total disability benefits from February 14, 1993 through August 30, 1993 except for those days which claimant worked and earned wages. Therefore, I dissent from this portion of the majority decision.
In my opinion, claimant has failed to prove by a preponderance of the credible evidence that his torn rotator cuff was causally related to his compensable accident of February 13, 1993 or that he was temporarily and totally disabled from February 14, 1993 through August 30, 1993. Also, in my opinion, claimant failed to prove that he complied with the change of physician requirements as set forth in A.C.A. § 11-9-514 and, thus, the treatment by Dr. Woloszyn is not authorized, reasonable and necessary or related to the work-related injury. Therefore, as stated, I respectfully dissent from to majority opinion.
ALLYN C. TATUM, Commissioner