Toby Markham v. Sutton Lumber and Bituminous Insurance Companies

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

TOBY MARKHAM

APPELLANT

V.

SUTTON LUMBER and

BITUMINOUS INSURANCE COMPANIES

APPELLEES

CA04-59

October 6, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F10300]

REVERSED and REMANDED

Larry D. Vaught, Judge

This is an appeal from a decision of the Workers' Compensation Commission finding that appellant, Toby Markham, failed to prove that he was entitled to additional medical treatment by Dr. Pace and that further diagnostic testing and treatment by a specialist would be unreasonable and unnecessary. On appeal, appellant contends that the Commission erred in determining that his request for a change of physician to Dr. Pace should be denied on the basis that continued care was not reasonable and necessary. We agree that the Commission erred in refusing to permit the one-time change of physician under Ark. Code Ann. § 11-9-415. Accordingly, we reverse and remand.

Appellant was employed by appellee Sutton Lumber Company on February 5, 2001, when he sustained an injury to his back while lifting a piece of lumber. The injury was accepted as compensable. Appellant was initially treated by Dr. Bearden, a general practitioner, who prescribed pain medications and physical therapy. Dr. Bearden referred appellant to Dr. Ross Hardy, a physiatrist. Dr. Hardy first saw appellant on March 29, 2001, and ordered an MRI in May 2001 and an EMG and nerve-conduction studies in June 2001. The results of the MRI indicated mild degenerative changes, an annular tear at L4-5, and a small disc protrusion at L5-S1. The nerve-conduction studies did not demonstrate nerve-root compression or acute radiculopathy. In September 2001, Dr. Hardy referred appellant to a pain specialist, Dr. Jacob Abraham, who treated appellant with an epidural-steroid injection. Then, in October 2001, Dr. Hardy referred appellant to Dr. John Pace, a neurosurgeon. Dr. Hardy last saw appellant on October 4, 2001.

Appellees resisted appellant's referral to Dr. Pace and arranged for appellant to be seen by Dr. Kenneth Rosenzweig, an orthopedist. Dr. Rosenzweig ordered a bone scan, the results of which were normal. Dr. Rosenzweig did not think that appellant was a candidate for surgery, but referred appellant to Dr. William Ackerman, a pain specialist. Dr. Ackerman performed a discogram on November 20, 2001, which produced normal results. Appellant continued treatment with Dr. Ackerman until February 5, 2002, when he found that appellant had reached maximum medical improvement and assessed appellant as having a five percent whole-body impairment rating. Dr. Ackerman was also of the opinion that appellant would not benefit from further diagnostic testing.

Appellant then requested to see Dr. John Pace, a neurosurgeon. Appellees denied this request, contending that appellant received all the benefits to which he was entitled and that additional care and treatment from Dr. Pace would constitute unreasonable and unnecessary medical treatment.

After a January 31, 2003, hearing, the administrative law judge found that appellant failed to prove by a preponderance of the evidence that he was entitled to additional medical treatment by Dr. Pace. He also found that further diagnostic testing and treatment by a specialist would be unreasonable and unnecessary. Appellant appealed the ALJ's decision to the full Commission, and the Commission affirmed and adopted the findings of the ALJ. Appellant now raises two points of appeal: (1) the Commission erred in determining that appellant's request for a change of physician to Dr. Pace should be denied on the basis that continued care was not reasonable and necessary; (2) alternatively, the Commission erred in denying appellant the ability to complete his medical care through the "chain of referral."

At the beginning of the hearing, the ALJ stated that "I think the narrow issue that we are going to talk about here this morning is a referral by a physician and the authorized change of treating physicians to Dr. Pace." The ALJ also requested briefs, and appellant clearly argued that he was entitled to a change of physician under Ark. Code Ann. § 11-9-514. In his opinion, the ALJ did not mention appellant's request for a change of physician pursuant to this statute, nor did the Commission's majority decision. On appeal, appellant contends that the Commission erred in determining that appellant's request for a change of physician to Dr. Pace should be denied on the basis that continued care was not reasonable and necessary, arguing that he was entitled to a one-time change of physician. In support of his argument, appellant cites Collins v. Lennox Indus., Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002) (concluding that grant of a one-time physician change request is mandatory under statute); Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003) (holding that employer is liable for payment when one-time physician change right is exercised).

The standard of review in workers' compensation cases is well settled. When reviewing a decision of the Arkansas Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to supporta conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The issue is not whether this court might have reached a different result from the Commission; the Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Horticare Landscape Mgmt. v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002). When a claim is denied because a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission's opinion. Marshall v. Madison County, 81 Ark. App. 57, 98 S.W.3d 452 (2003).

Appellees argue that in response to the Commission's findings, appellant suggests that this court should overlook the overwhelming medical evidence against him, and instead decide this case based exclusively on the change-of-physician statute codified at Ark. Code Ann. § 11-9-514(a)(3)(ii). Appellees contend that appellant's reliance on Collins, supra, and Brown, supra, is wrong because those cases are not controlling. It is appellees' argument that here, unlike those cases, "subsequent medical proof has established that the referral by Dr. Hardy is neither reasonable nor necessary."

We agree with appellant that Collins and Brown are controlling. Contrary to appellees' argument, Collins is factually similar to the present case. In Collins, the claimant asked for a change of physician, and the employer denied the request on the basis that further treatment was not reasonable and necessary. The ALJ characterized the issue in her opinion as whether or not additional medical treatment was reasonable, necessary, and related to the compensable injury, and she did not directly address the change of physician request in her findings (although the order stated that a hearing was conducted to determine claimant's entitlement to payment of continuing treatment, a change of physician, and attorney's fees). The ALJ found that the employer had provided adequate medical treatment under the provisions of Ark. Code Ann. § 11-9-508, and that claimant failed to prove that further treatment was reasonable, necessary, or related to the compensable injury. The full Commission affirmed and adopted the decision of the ALJ. We reversed the decision on the basis that a one-time change of physician is mandatory under Ark. Code Ann. § 11-9-514(a)(3)(A)(ii), and therefore the Commission's finding that the employer had fulfilled the obligation of providing adequate medical treatment under Ark. Code Ann. § 11-9-508 was not supported by substantial evidence.

Similarly, the ALJ here noted at the beginning of the hearing that the issues involved "a referral by a physician and the authorized change of treating physicians to Dr. Pace." The ALJ's order, however, only addresses the issue as one of "entitlement to additional medical benefits." The ALJ's decision, as in Collins, was based solely on the finding that additional treatment was not reasonable or necessary. Because appellant did not initially request the first physician, the one-time change of physician is mandatory. Therefore, we hold that the Commission erred as a matter of law in not granting the one-time change of physician request. Because we agree that the Commission erred in refusing to grant appellant's request for a change of physician, we need not address appellant's second point of appeal. Accordingly, we reverse and remand with instructions to order a change of physician.

Reversed and remanded.

Stroud, C.J., and Hart, J., agree.