Department of Parks & Tourism v. Helms

DEPARTMENT OF PARKS & TOURISM v. 
Belinda Gail HELMS

CA 97-653                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered January 14, 1998


1.   Workers' compensation -- treatment resulting from referral or change of
     physician is factual determination for Commission. -- Whether treatment
     is a result of a referral rather than a change of physician is
     a factual determination to be made by the Workers'
     Compensation Commission. 

2.   Workers' compensation -- challenge to factual determination -- standard of
     review. -- When a factual determination is challenged on appeal,
     the appellate court affirms if it is supported by substantial
     evidence; substantial evidence is such relevant evidence as a
     reasonable mind might accept as adequate to support a
     conclusion; unless the court is convinced that fair-minded
     persons with the same facts could not arrive at the conclusion
     reached by the Workers' Compensation Commission, it will
     affirm.

3.   Workers' compensation -- substantial evidence supported Commission's
     decision that appellee was properly referred to chiropractor. -- Where
     the Workers' Compensation Commission was persuaded by
     appellee's credible testimony regarding her consulting a
     chiropractor, coupled with her orthopedist's explanation that,
     in his estimation, appellee could have understood his
     discussions with her to mean that he was referring her to a
     chiropractor, the appellate court could not say that there was
     no substantial evidence to support the Commission's decision
     finding that appellee had been properly referred to a
     chiropractor by her treating physician.

4.   Workers' compensation -- physician referral -- not invalidated by patient's
     request for treatment by particular physician. -- A patient's mere
     request for treatment by a particular physician is not in
     itself sufficient to invalidate an otherwise valid referral. 

5.   Workers' compensation -- Commission within substantial-evidence requirement
     in finding appellee was properly referred to general practitioner. --
     Where appellee's orthopedist, who had referred appellee to a
     particular general practitioner, testified that appellee had
     expressed confidence in the general practitioner and appeared
     comfortable with him as a physician, the Workers' Compensation
     Commission was well within the substantial-evidence
     requirement in finding that this was a valid referral and not
     a demand by appellee for a change of physician.

6.   Workers' compensation -- "objective findings" defined. -- "Objective
     findings," under the Workers' Compensation Law, are those
     findings that cannot come under the voluntary control of the
     patient.  
7.   Workers' compensation -- appellee failed to present objective physical
     findings to support percentage of impairment to body as whole --
     Commission's decision awarding permanent partial disability reversed. --
     Appellee bore the burden to prove physical or anatomical
     impairment by objective and measurable physical findings; it
     was incumbent upon appellee to present evidence that active
     range-of-motion tests are objective tests, that is, to present
     proof that those tests do not come under the voluntary control
     of the patient, and she did not do so; because appellee did
     not present any objective physical findings to support the
     percentage of impairment to the body as a whole, the appellate
     court could not uphold the Workers' Compensation Commission's
     decision concerning the impairment rating since it did not
     provide a substantial basis for the award of a permanent
     partial disability; the matter was reversed in part.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed in part; reversed in part.
     Nathan C. Culp, for appellants.
     Everett O. Martindale, for appellee.

     John B. Robbins, Chief Judge.
     Appellant Department of Parks and Tourism appeals the decision of the Workersþ
Compensation Commission that found that appellee Belinda Gail Helms was properly referred
to a chiropractor and then to a general practitioner by her treating physician.  It argues that this
was not supported by substantial evidence.  Appellant also argues that the impairment rating to
the body as a whole was not based on objective and measurable findings, taking issue with
appellee's range-of-motion tests.  Though we find no merit to the Department's arguments
regarding the referrals, we do find merit in its disagreement with the award of a permanent partial
disability.
     Appellee was injured on April 23, 1995, when she slipped and fell while performing
duties as a waitress at DeGray Lodge.  Appellant admitted compensability.  She was initially
treated at an Arkadelphia hospital for shoulder, lower back, and head pain.  She was followed
up two days later by Dr. Jensen, a general practitioner, with her only complaint being shoulder
pain.  She was seen again on May 9th when Dr. Jensen referred appellee to an orthopedist,
Dr. McLeod.  He pursued conservative treatment of appelleeþs injury.  Upon suggestion of Dr.
McLeod, appellee underwent six sessions of physical therapy between May and June 1995.  On
June 7th, appellee cancelled her remaining physical therapy sessions and sought chiropractic
treatment.  She underwent those treatments for several months.
     She returned to see the orthopedist in September 1995 complaining of headaches.  Because
he did not treat headaches, she was referred to Dr. Taylor, a general practitioner.  She returned
to the orthopedist on March 8, 1996, for a permanent impairment evaluation, and was assessed
a four-percent impairment rating based on the results of active range-of-motion tests.  The
Department denied the compensability of the chiropractic and general practitioner treatment as
well as the four-percent rating.  The administrative law judge determined that the referrals and
treatments were reasonable and necessary and that the rating was appropriate.  The Full
Commission affirmed the decision of the administrative law judge.  This appeal resulted.
     The first argument centers primarily on whether appellee consulted the chiropractor on
her own or whether she was referred to him by her orthopedist.  In his deposition her orthopedist
explained that, in his estimation, appellee could have understood his discussions with her to mean
that he was referring her to a chiropractor.  They had discussed the topic of chiropractic treatment
in her May 1995 visit, before physical therapy had begun.  His practice was to advise patients
of alternative treatments, which include chiropractic treatment.  Dr. McLeod had been to
Dr. Clary's and Dr. Schuckþs offices, both local chiropractors, and mentioned their names to
appellee.  Dr. McLeod stated that there are business cards of Dr. Clary's in Dr. McLeodþs office.
     Appellee testified that she returned to Dr. McLeodþs office because physical therapy was
not providing her any relief.  At the front desk, she mentioned to the receptionist that she was
interested in seeking chiropractic treatment like Dr. McLeod had mentioned.  The receptionist
went to the back, and later returned and wrote Dr. Claryþs name and address on a piece of paper
for her.  The receptionist mentioned to appellee that Dr. Clary was new in town and had unique
methods of treatment.  Though the receptionist testified that she did not receive instructions from
Dr. McLeod to send appellee to the chiropractor, appellee was left with the impression that he
did.  Dr. McLeod stated that her subjective understanding could have been that she was referred
to a chiropractor, because of the circumstances under which appellee was given the name of
Dr. Clary.  Dr. Clary even corresponded back to Dr. McLeod thanking him for the "referral" of
appellee.
     Whether treatment is a result of a þreferralþ rather than a þchange of physicianþ is a
factual determination to be made by the Commission.  Pennington v. Gene Cosby Floor &
Carpet, 51 Ark. App. 128, 911 S.W.2d 600 (1995); TEC v. Underwood, 33 Ark. App. 116,
802 S.W.2d 481 (1991).  When that determination is challenged on appeal, we affirm if it is
supported by substantial evidence.  Id.  Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.  Id.  Unless we are convinced
that fair-minded persons with the same facts could not arrive at the conclusion reached by the
Commission, we will affirm.  Id.; Tuberville v. International Paper Co., 28 Ark. App. 196, 771 S.W.2d 805 (1989).  Here, the Commission could reasonably find that appellee was not
physician-shopping but was seeking assistance in following through with an option discussed by
Dr. McLeod.
     Further evidence was presented to this effect.  In the patient information sheet that she
filled out at Dr. Claryþs office, she responded to a question, þHow did you hear about us?þ with
the answer, þRecommended by Dr. McLeod.þ  In response to the question, þIf referred, by who?þ
she answered Dr. McLeod.  The Commission was persuaded by appelleeþs credible testimony,
coupled with Dr. McLeodþs explanation of the situation.  We cannot say that there was no
substantial evidence to support the Commissionþs decision.
     The second physician whose services appellant takes issue with is Dr. Taylor.  Appellee
sought the care of Dr. Taylor after a consultation with Dr. McLeod in September 1995.  On that
visit, she complained to Dr. McLeod of headaches.  Dr. McLeod stated in his deposition that he
was not qualified to render opinions and treatment for headaches.  At Dr. McLeodþs suggestion
she saw Dr. Taylor, a family physician.  Dr. McLeod testified that þ[S]he told me about sheþd
been having some headaches.  And I donþt treat headaches, and I wanted her to have that looked
at, and asked her about a family physician.þ  He went on to state that she had seen Dr. Jensen
and that a couple of her family members had seen Dr. Taylor.  She expressed confidence in Dr.
Taylor to Dr. McLeod, þso we made a referral for her to see Dr. Taylor for evaluation of these
headaches.þ  A patient's mere request for treatment by a particular physician is not in itself
sufficient to invalidate an otherwise valid referral.  Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985); see also, Patrick v. Arkansas Oak Flooring Co., 39 Ark. App. 34, 833 S.W.2d 869 (1992).  In his office notes, Dr. McLeod mentioned that appellee did not want to see
any doctor other than Dr. Taylor for the headaches.  The doctor explained that in their
discussions, appellee or her husband brought up Dr. Taylor.  Nothing negative was stated about
Dr. Jensen; they just appeared comfortable with Dr. Taylor as a physician.  The Commission was
well within the substantial-evidence requirement in finding that this was a valid referral and not
a demand by appellee for a change of physician.
     Lastly, appellant argues that the four-percent impairment rating assessed by Dr. McLeod
on March 8, 1996, is invalid because Dr. McLeod used active range-of-motion tests that do
not qualify as þobjective and measurableþ under the Workersþ Compensation Act.  Appellant
asserts that any impairment rating attributable to appelleeþs right shoulder injury cannot be
predicated on active range-of-motion tests.  Dr. McLeod gave appellee a seven-percent shoulder
impairment pursuant to the American Medical Association Guidelines, which correlates to a four-
percent impairment to the body as a whole.  Arkansas Code Annotated  11-9-102(16)(A)(ii)
(Repl. 1996) states:

     When determining physical or anatomical impairment, neither a physician, any
     other medical provider, an administrative law judge, the Workersþ Compensation
     Commission, nor the courts may consider complaints of pain; for the purpose of
     making physical or anatomical impairment ratings to the spine, straight-leg-raising
     tests or range-of-motion tests shall not be considered objective findings.
This was not an evaluation of spine impairment.  However, appellee did bear the burden to prove
physical or anatomical impairment by objective and measurable physical  findings.  Ark. Code
Ann.  11-9-704(C)(1)(B) (Repl. 1996).  þObjective findingsþ are those findings that cannot come
under the voluntary control of the patient.  Ark. Code Ann.  11-9-102(16)(A)(i) (Repl. 1996). 
Dr. McLeod stated that he based the impairment rating on active range-of-motion tests.  The
legislature has eliminated range-of-motion tests as a basis for physical or anatomical impairment
ratings to the spine by definition.  It was incumbent upon appellee to present evidence that active
range-of-motion tests are objective tests.  In other words, it was incumbent upon her to present
proof that those tests do not come under the voluntary control of the patient.  She did not do so. 
In fact, there is authority to suggest that active range-of-motion tests are based almost entirely
on the patientþs cooperation and effort.  See American Medical Association, Guidelines to the
Evaluation of Permanent Impairment, (3d ed. 1988).  þThe full range possible of active motion
should be carried out by the subject and measured by the examiner.  If a joint cannot be moved
actively by the subject or passively by the examiner, the position of ankylosis should be
recorded.þ  Id. at 14.  Because appellee did not present any objective physical findings to support
the percentage of impairment to the body as a whole, we cannot uphold the Commissionþs
decision on this point since it does not provide a substantial basis for its award.
     Affirmed in part; reversed in part.
     Bird and Griffen, JJ., agree.