Donna L. Hamaker v. Baptist Health and Crockett Adjustment

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-573

DIVISION I

CA05-573

December 14, 2005

DONNA L. HAMAKER AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [F311250]

V.

BAPTIST HEALTH and

CROCKETT ADJUSTMENT

APPELLEES AFFIRMED

Wendell L. Griffen, Judge

Pro se appellant Donna L. Hamaker appeals from a decision of the Workers Compensation Commission. She argues that the Commission erred in not ordering Baptist Health and its insurer (Crockett Adjustment) to reimburse her for medical expenses incurred and in calculating her average weekly wage at $471.04. She also urges this court to order the Commission to adopt procedures that clarify the means under which a change of physician petition is received and granted by the Commission. Finally, she contends that appellees should reimburse her $120 in legal fees. We affirm.1

Factual and Procedural History

Appellant suffered an admittedly compensable injury on March 16, 2003, when she caught a patient who was falling out of bed. She felt immediate pain in her back while straining to hold and lower the patient to the floor. Appellant was originally sent to Baptist Medical Center Fast Track Emergency Room. On March 18, 2003, appellant's supervisor, Cathy Clark, asked her to come back to the hospital to fill out paperwork and to be seen by a physician. Appellant testified that she had questions about the form, referred to as Form N, but that Clark "stated that all that was important was that I write down how the injury occurred and sign the form. I was told unless I hurried up and completed the paperwork before closing time, I would have to wait another day to see a doctor." She claimed that she never saw a back page to the form and that she never received a copy of anything.

Appellant later notified JoAnn Crowe, case worker for Crockett Adjustment, that she continued to have problems with her back, and she and Crowe agreed to consult Dr. Bruce Safman. Dr. Safman ordered an MRI; however, after the MRI was performed, Crowe told appellant that she needed to see someone else. Appellant agreed to see Dr. John Wilson in July 2003. Dr. Wilson stated that appellant had suffered a bulging disc at L4-5. He took her off work and recommended physical therapy as well as epidural steroid injection therapy. He later assessed a five-percent impairment rating to the body.

Appellant was scheduled to see Dr. Wilson on December 17, 2003; however, she wanted approval to see a neurologist. She contacted Crowe, who agreed that appellant's symptoms merited an evaluation by a neurosurgeon. During the discussion, appellant and Crowe agreed that appellant would see Dr. James Adametz. Crowe told appellant that she was sure the change would be approved. Crowe asked appellant to send her something in writing requesting the change in physician and to address the letter "To Whom It MayConcern" because the letter would be sent to other people. Appellant testified that there was no discussion about petitioning the Commission for any reason, including a one-time change of physician, yet Crowe sent the letter to the Commission. Crowe forwarded the letter to the Commission without appellant's knowledge or consent.

On December 24, 2003, appellant received a notice from the Commission indicating that it had approved her change-of-physician petition. Appellant later confronted appellees and asked that they stipulate that the change of physician was a mutually-agreed change and not the one-time statutory change. Appellees refused. Appellant cancelled the appointment that she had previously set with Dr. Adametz. She testified that she did not see Dr. Adametz or Dr. Wilson out of fear that it would create the appearance that she had approved the Commission's order. Appellant presented to Dr. Scott Schlesinger because she thought she had no treating physician but needed to be seen by someone. She claimed $1170.65 in out-of-pocket expenses as a result of being in Dr. Schlesinger's care. Appellant was informed of her right to request a hearing within thirty days of the order granting appellant's petition for a change of physician, and the record contains a letter dated January 9, 2004, from Pat Capps Hannah stating, "The claimant and her husband insist that this be heard by a Law Judge. I can always set aside the order after the Judge hears the other issues. She has not see [sic] Dr. Adametz and does not have an appointment to see him according to the claimant."

Appellant contended that her average weekly wage was $946.86, not $471.04 as appellees calculated. Regarding her employment status, appellant testified that she had a contract with Baptist Hospital as an in-house agency employee, which is a pool of nurses that cover for other nurses when they are ill or on extended leave. She noted that she was primarily on Job 1 status, which required her to sign up for contracts to work two twelve-hour shifts four weekends in a row. On the day she was injured, she was on Job 2 status,where the hospital asked her to cover for another person. Appellant testified that this arrangement, as opposed to full-time employment, allowed her to care for her two children. She earned $39 an hour. According to her records, she made $13,684.93 the fifty-two weeks prior to the injury; however, she noted that Baptist Health's documents showed that she made $14,131.33.

When calculating her average weekly wage, she stated that appellees included in their calculations two-week pay periods that included weeks that she did not work. She also noted that she was issued corrected paychecks and that appellees were calculating her average weekly pay based on weeks where she did not work but had received a corrected paycheck. On cross-examination, appellant testified that over the previous fifty-two-week period she worked a total of three four-week contracts out of a total of twelve potential periods and that she also worked twelve-hour shifts on other weekends.

Cathy Clark, director of staffing services for Baptist Health, stated that people employed by their in-house agency tell a scheduler when they would like to work. The four-week contracts were developed to guarantee work for a certain period. Clark testified that appellant worked three such contracts and that appellant could have worked four-week contract periods continually during the year prior to the injury had she desired to do so.

Rudy Bischof, a workers' compensation adjustor, testified that he received a wage statement from Baptist Health. He commented that the routine request is for the record of the fifty-two weeks preceding the date of injury; however, appellant did not have wages during the entire period. He calculated appellant's weekly average by counting the pay periods that were on the wage information, which computed to be thirty, and divided the total gross wages by that number. Bischof stated that he divided by thirty because that was the number of weeks the statement showed appellant had worked.

In an opinion dated June 25, 2004, the ALJ vacated the December 23, 2003, change-of-physician order and found that appellant was entitled to seek reasonably necessary medical care from Dr. Adametz, pursuant to the agreement of the parties. However, he found that appellant's consultation with Dr. Schlesinger was unauthorized and not the responsibility of the appellees. He noted that appellant was reluctant to see Dr. Adametz; however, he noted that appellant had received Form N. While appellant testified that she received only a one-sided form, the ALJ stated that it was more likely that appellant either failed to examine the back of the document or failed to review the advice on changing physicians. Because she received the form, according to the ALJ, the law under Ark. Code Ann. § 11-9-514 (Repl. 2002) applied. The ALJ also calculated appellant's average weekly wage at $471.04, the figure calculated by appellees, rather than the $946.86 proposed by appellant. He noted that, while both figures seemed to overstate appellant's income:

[I]t is of some concern that a similarly injured co-worker for the same employer who earned over $24,000.00 during the same 52-week period would be compensated based upon the same average weekly wage as [appellant's], even though more had been paid in wages over the same period. On the other hand, [appellant's] theory is consistent with an average weekly wage of approximately $49,000.00 earned over the same 52-week period and does not approach the concept of being fair and just to the parties.

The Commission affirmed the ALJ in a separate opinion filed February 16, 2005. Regarding the change of physician, the Commission noted that appellant did not directly contact the Commission, that she was unaware that she was "petitioning" the Commission for a change of physician, and that she timely noted that she wanted a hearing on the matter after receiving the change-of-physician order. However, the Commission also found that appellant's treatment from Dr. Schlesinger was unauthorized, citing Ark. Code Ann. § 11-9-514(b). Regarding the ALJ's calculation of appellant's average weekly wage, the Commission recounted the ALJ's analysis of the issue and affirmed his decision.

Standard of Review

The standard of review for appeals from the Commission is well established:

In reviewing decisions from the Workers' Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirms if supported by substantial evidence. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Byars Constr. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000). A decision by the Workers' Compensation Commission will not be reversed unless it is determined that fair-minded persons could not have reached the same conclusions if presented with the same facts. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000).

Carman v. Haworth, Inc., 74 Ark. App. 55, 59, 45 S.W.3d 408, 411 (2001).

Reimbursement for Medical Treatment

First, appellant argues that appellees should reimburse her for expenses she incurred from her treatments from Dr. Schlesinger. She contends that appellees' procedures left her without a treating physician and that they should be liable for those expenses. Form N informs a claimant regarding her right to a change of physician under Ark. Code Ann. § 11-9-514. The back of the form states:

Rights and responsibilities. Treatment or services furnished or prescribed by any physician other than the ones selected according to the provisions below, except emergency treatment, shall be at the claimant's/employee's expense.2

Ark. Code Ann. § 11-9-508. Medical services and supplies.

"(e). . . [T]he injured employee shall have direct access to any optometric or ophthalmologic medical service provider who agrees to provide services under the rules, terms, and conditions regarding services performed by the managed care entity initially chosen by the employer for the treatment and management of eye injuries or conditions."

1. Your employer shall have the right to select the initial primary care physician from among those associated with certified MCOs.

2. You may request a change-of-physician. You should initially request a change from the insurance carrier or employer. Within five business days of your initial request for a change-of-physician, the insurance carrier or employer should notify you of its decision to grant or deny the change-of-physician.

3. If your request for change of physician is denied you may send a petition to the Clerk of the Arkansas Workers' Compensation Commission for a one (1) time only change-of-physician.

4. If your employer has contracted with a certified MCO, you shall be allowed to change physicians by petitioning the commission one (1) time only for a change-of-physician to a physician who must also either be associated with the certified MCO chosen by your employer or who is your regular treating physician. (Your "regular treating physician" is one who maintains your medical records and with whom you have a history of regular treatment before the onset of your compensable injury.) The health care provider to whom you change must agree to refer you to the certified MCO chosen by your employer for any specialized treatment, including physical therapy, and must agree to comply with all the rules, terms, and conditions regarding services performed by the MCO initially chosen by your employer.

5. If your employer does not have a contract with a certified MCO, you shall be allowed to change physicians by petitioning the commission one (1) time only for a change-of-physician to a physician who must either be associated with any certified MCO or who is your regular treating physician. (See definition above.) The health care provider to whom you change must agree to refer you to a physician associated with any certified MCO for any specialized treatment, including physical therapy, and must agree to comply with all the rules, terms, and conditions regarding services performed by any certified MCO.

Arkansas Code Annotated section 11-9-514(c) provides, "Any unauthorized medical expense incurred after the employee has received a copy of the notice [explaining the employee's rights and responsibilities concerning change of physician] shall not be the responsibility of the employer." Further, both Form N and the Workers' Compensation Act provide that any non-emergency treatment or services furnished by any physician other than the ones selected in accordance to the foregoing shall be at the claimant's expense. See Ark. Code Ann. § 11-9-514(b).

In Byars Construction Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000), the Commission found that because there was no evidence that the employer had contracted with a certified managed care entity, the claimant could see any physician for reasonable and necessary treatment. This court reversed, citing Ark. Code Ann. § 11-9-514(b) and holdingthat any change of physician outside of the statute, other than emergency treatment, would be at the claimant's expense. Also, in Sharp v. Lewis Ford, Inc., 78 Ark. App. 164, 78 S.W.3d 746 (2002), the employee admitted that treatment from three doctors was unauthorized. She also acknowledged that she had received Form N. The employee signed the form immediately below the statement stating, "my signature below indicates that I have been provided with my rights regarding change of physician." This court strictly construed Ark. Code Ann. § 11-9-514(c), which provides that any unauthorized medical expense incurred after the employee has received a copy of Form N shall not be the responsibility of the employer, and affirmed the Commission's ruling that the employer was not responsible for the unauthorized treatment.

Appellant signed the Form N, which on the back indicated her rights and responsibilities regarding the change of physician. While appellant disputed that she received a valid Form N at the hearing before the Commission, she does not appeal this finding. Under both subsections (b) and (c), appellees are not responsible for any unauthorized treatment.

Appellant contends that she was left without a treating physician as a result of appellees' actions. Contrary to appellant's assertion, she presented no evidence showing that she was denied access to Dr. Adametz. While she may have been concerned that seeing Dr. Adametz would have operated to affirm the Commission's order, she had already filed her objection to the order, which was sufficient to show her disapproval. While we acknowledge that Crowe should not have submitted appellant's letter as a petition for a change of physician without appellant's prior knowledge, appellant was not justified in seeking unauthorized treatment.

Further, had the Commission ordered appellees to reimburse appellant for Dr.Schlesinger's services, that finding would have been akin to a retroactive approval of a change in physician, which the Commission is not allowed to do. Crosby v. Micro Plastics, Inc., 30 Ark. App. 225, 785 S.W.2d 56 (1990) (citing Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984)). Absent compliance with Ark. Code Ann. § 11-9-514, an employer is not liable for a physician's services. Id. The Commission did not err in finding that appellees were not responsible for services and treatment provided by Dr. Schlesinger. We affirm on this point.

Calculation of the average weekly wage

Next, appellant argues that the Commission erred in calculating her weekly wage. Specifically, she contends that, in calculating her average weekly rate, appellees included weeks for which she earned no income; therefore, those weeks should not have been considered when calculating her average weekly wage.

Arkansas Code Annotated section 11-9-518 (Repl. 2002) provides:

(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.

(2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in a full-time workweek in the employment.

(b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two (52) weeks preceding the accident.

(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.

In calculating the average weekly wage, Bischof testified that he added appellant's wages from the fifty-two weeks prior to her injury and divided by thirty. He stated that henormally would divide by fifty-two; however, appellant's wage statement showed that she worked only thirty weeks. Appellant contends that the evidence showed that she received pay for at most sixteen weeks; therefore, the Commission should have used a divisor of sixteen.

Appellant has unusual circumstances in that she works whenever she wishes (assuming that there is work available for her to do). She is not a full-time employee, and she does not work on a piece basis. See Taylor v. Lubritech, 75 Ark. App. 68, 71, 54 S.W.3d 132, 134 (2001) ("A piece-rate worker is one who is paid on the basis of the quantity of work done."). Appellant's proposed calculation of her average weekly wage does not take into consideration her unusual situation. If the Commission were to calculate appellant's average weekly wage using appellant's proposed method, she would be receiving wages equivalent to that of someone who worked every week. Appellant argues, "[T]here is no precedent in favor of intentionally diluting the calculation [of one's average weekly wage] in view of a particular annual rate." However, it is simply unfair and unjust to pay appellant benefits similar to those of an employee who works on a regular basis.

In TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991), this court found that the claimant, an employee of a temporary employment agency, should have her average weekly wage calculated based on the wages she received from the job that she was currently working. There, the claimant had been working a job that provided a forty-hour week at $5.50 an hour; however, the claimant had only worked forty hours for two of the previous seven weeks at her current job. Underwood was overruled by Metro Temporaries v. Boyd, 314 Ark. 479, 863 S.W.2d 316 (1993). The claimant there, also a temporary employment agency employee, could refuse to work for a third party and was not bound to work any set hours. The Commission followed Underwood and calculated compensation based on thecontract of hire in force at the time of the accident. This court reversed, and the supreme court affirmed the reversal, holding that the claimant was entitled to receive benefits based upon an average of the hours worked at the different jobs the claimant had worked. Boyd, while different from the instant case, is helpful because it overruled a case using a calculation similar to one proposed by appellant. In line with the reasoning in Boyd, we consider a proper calculation of appellant's average weekly wage to include weeks that she chose not to work.

None of the cases cited by appellant are persuasive. Appellant relies on Gill v. Ozark Forest Products, 255 Ark. 951, 504 S.W.2d 357 (1974), for the proposition that a proper divisor should not include weeks for which the employee worked substantially less than his typical work week. However, the claimant in that case worked in the timber industry, and due to the nature of his employment, work was not always available. The average weekly wage in Gill was calculated in a way to reflect how much the employee could have made had work been available. Here, appellant's supervisor testified that appellant could have worked the entire year had she chosen to do so. To calculate the wage similarly in this case would reward appellant for not working.

Appellant cites Tabor v. Levi Strauss & Co., 33 Ark. App. 71, 801 S.W.2d 311 (1990), for the proposition that the calculation of one's average weekly wage should not include weeks for which the employee did not work. She misconstrues the proposition for which the case stands. There, the court stated that in calculating average overtime pay for an employee paid on a piece basis, the number of weeks used to calculate pay should be reduced by those weeks in which the employee did not work. The formula does not exclude weeks that the employee did not work from the overall calculation.

Finally, appellant relies on Travelers Ins. Co. v. Perry, 262 Ark. 398, 557 S.W.2d 200(1977), and states that while the court ruled against the employee, the court did not consider those weeks for which the employee did not work a full week. Appellant misconstrues this case as well. The employee worked for a temporary employment agency. From May 27 to July 2, the employee worked only four days (June 1, two days during the week ending June 22, and July 2-the day of his injury) and was paid $63 total. The ALJ awarded minimum benefits based on an average weekly wage of $30. The Commission assessed the employee's weekly wage at $88 and awarded compensation of $57.20 a week. The supreme court held that the Commission had no substantial basis for its award. It distinguished that case from Gill by noting that the employee in the instant case did not have a contract that required him to be available for work. The court ordered the Commission to enter judgment for minimum benefits without making a calculation as to what appellant's average weekly wage was.

Appellant argued that the supreme court in Gill noted that the employee worked six weeks and then "reduced the divisor" by one for the week he was injured and by three more weeks for the weeks in which he had no earnings. This argument is flawed for two reasons. First, as already mentioned, the court did not calculate the employee's average weekly wage. Second, had the court "reduced the divisor," the end result would have been increased benefits in that case, not an order to enter judgment for minimum benefits.3

Appellant's proposed calculation of her average weekly wage is unfair and unjust. While appellees' calculation is generous, we see no reason to disturb it on appeal. We affirm on this point.

Order to clarify procedures

Next, appellant urges us to order the Commission to adopt an order she proposed thatwould purportedly clarify the means under which a change-of-physician petition is granted.4 We are without authority to do so. The Arkansas General Assembly has given this court as well as the Commission instructions to strictly construe the Workers' Compensation Act. Allen v. International Paper Co., ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 2, 2005); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Our legislature has also stated:

In the future, if such things as the statute of limitations, the standard of review by the Workers' Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers' compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers' Compensation Commission, or the courts.

Ark. Code Ann. § 11-9-1001 (Repl. 2002).

This court is not the proper venue to advocate such a change in the Commission's procedures. Accordingly, we decline to address this point.

Legal expenses

Finally, appellant urges this court to order appellees to reimburse her $120 for legal fees incurred. A document in her addendum shows that she incurred a $15 expense for copying records and $105 expense for subpoenas. However, appellant is not entitled to reimbursement.

A court cannot award fees or costs unless explicitly provided by statute or rule. Second Injury Fund v. Furman, 62 Ark. App. 194, 972 S.W.2d 255 (1998). Arkansas Code Annotated section 11-9-715 (Repl. 2002), which provides for legal fees in workers' compensation cases, reads in relevant part:

(a)(1)(A) Fees for legal services rendered in respect of a claim shall not be valid unless approved by the Workers' Compensation Commission.

(B) Attorney's fees shall be twenty-five percent (25%) of compensation for indemnity benefits payable to the injured employee or dependents of a deceased employee. Attorney's fees shall not be awarded on medical benefits or services except as provided in subdivision (a)(4) of this section.

* * *

(b)(1) If the claimant prevails on appeal, the attorney for the claimant shall be entitled to an additional fee at the full commission and appellate court levels in addition to the fees provided in subdivision (a)(1) of this section, the additional fee to be paid equally by the employer or carrier and by the injured employee or dependents of a deceased employee, as provided above and set by the commission or appellate court.

(2) The maximum fees allowable pursuant to this subsection shall be the sum of five hundred dollars ($500) on appeals to the full Commission from a decision of the administrative law judge and the sum of one thousand dollars ($1,000) on appeals to the Court of Appeals or Supreme Court from a decision of the commission.

(3) In determining the amount of fees, the commission and the court shall take into consideration the nature, length, and complexity of the services performed and the benefits resulting to the compensation beneficiary.

(c)(1) The fee for legal services rendered by the claimant's attorney in connectionwith a change of physician requested by the injured employee, controverted by the employer or carrier and awarded by the commission, shall be two hundred dollars ($200).

(2) No additional fee shall be payable with respect to uncontroverted charges incurred in connection with treatment by the new physician.

This statute allows claimants to have the ability to seek counsel in the settlement of controverted claims. Tyson Foods, Inc. v. Fatherre, 16 Ark. App. 41, 696 S.W.2d 782 (1985). The statute is also designed to put the economic burden of litigation on the party that makes litigation necessary by controverting the claim. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). Costs for subpoenas and copying by a pro se claimant are not covered by the statute, and an award of such costs would not conform to the established purpose of the statute. Further, appellant incurred many of her expenses because she argued that she should have been reimbursed for the unauthorized treatment from Dr. Schlesinger. For the aforementioned reasons, she was not entitled to reimbursement of those expenses. Because she did not prevail in this litigation, she would not be entitled to legal fees. We affirm on this point.

Affirmed.

Robbins and Bird, JJ., agree.

1 Appellant also asks this court to recognize that other issues are in reserve. According to the pre-hearing order, appellant reserved the issues of sanctions and additional benefits for disability, while appellees reserved the right to plead further and to seek Rule 11 sanctions. None of these issues affect the current appeal.

Further, appellant's abstract does not comply with Rule 4-2(a)(5) of the Rules of the Supreme Court and Court of Appeals. These rules apply equally to pro se litigants. Jewell v. Ark. State Bd. of Dental Exmrs., 324 Ark. 463, 921 S.W.2d 950 (1996). Appellees have made note of the abstracting deficiency and, as authorized by Rule 4-2(b)(1), have submitted a supplemental abstract. Therefore, we reach the merits of the appeal.

2 This paragraph is in bold print on the actual form.

3 For example, if a claimant made $100 in a month and one were to divide this amount by four, then the average would be $25. If one were to divide the amount by two, the average would be $50. This increased average would be due to the decreased divisor.

4 Appellant included a copy of her proposed order in her addendum:

STANDING ORDER

Act 1167 CHANGE OF PHYSICIAN PROCEDURES

The Court after careful deliberation and review, does hereby order the members and employees of the Arkansas Worker's [sic] Compensation Commission to enact the following procedures as of the date of this Order noted below, or as soon as administratively practical, but in no case more than ninety (90) days from the date of this order, to wit:

That henceforth, all Petitions for an ACT 1167 Change of Physician be:

1) Initiated by the Claimant;

2) Received from the Claimant, and

3) Signed by the Claimant.

Petition can be received by a third party only in cases where it is known that the Claimant has a mental or physical handicap which would make the above requirements impractical.

That henceforth, prior to the issuance of an Act 1167 Change of Physician Order, the Claimant's Petition must note that the Employer or Carrier has denied the Claimant's request, or alternatively, a copy of the Employer's or Carrier's denial to the Claimant must have been received by the Commission.