Lavonda Icenhower v. DeQueen School District, Employer and Risk Management Resources, Carrier

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ca04-874

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

LAVONDA ICENHOWER

APPELLANT

V.

DeQUEEN SCHOOL DISTRICT, EMPLOYER and RISK MANAGEMENT RESOURCES, CARRIER

APPELLEES

CA04-874

March 9, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISION

[NO. F002583]

AFFIRMED

Robert J. Gladwin, Judge

This is an appeal from a decision of the Workers' Compensation Commission that denied appellant Lavonda Icenhower additional medical treatment by Dr. Jim Moore and an additional change of treating physician. We affirm.

Appellant was employed by appellee DeQueen School District as a cafeteria worker on February 10, 2000, when she sustained an injury to her back while moving tables in the cafeteria. The injury was accepted as compensable. Appellant was initially treated by Dr. Keith Mitchell, who performed diagnostic studies. Dr. Mitchell referred appellant to a chiropractic physician, Dr. Daniel Wolf, for physical therapy, but she returned to Dr. Mitchell's care once therapy was completed. Dr. Mitchell then referred appellant to Dr. Joel Patterson, a neurosurgeon, but she never saw him due to a delay in scheduling the appointment.

At that point, nurse/case manager Debi Ledbetter became involved in appellant's workers' compensation claim, and she scheduled an appointment for appellant to be seen by Dr. Robert Dickins, Jr., another neurosurgeon, instead of Dr. Patterson. Appellant saw Dr.

Dickins only once, and he recommended that appellees seek a second opinion regarding appellant's condition. Appellant was not satisfied with Dr. Dickins's examination and evaluation, stating that he did not even feel the knot on her back or examine it, but rather simply looked at her test results and sent her on her way.

The parties then reached an agreement whereby the Commission entered a change-of-treating- physician order on June 8, 2000, that designated Dr. Richard Hilborn, an orthopedic surgeon, as appellant's treating physician with respect to her compensable injury. Appellant was examined by Dr. Hilborn on May 16, 2000, prior to the entry of that order, for a second opinion regarding her compensable injury. He agreed to treat her subsequent to the entry of the order, and she received treatment from him until July 18, 2000. Dr. Hilborn prescribed physical therapy, ordered a functional capacity evaluation and further diagnostic studies including an MRI of the lumbar spine, and placed appellant in a back-rehabilitation-work-hardening program. As of her last visit with Dr. Hilborn on July 18, 2000, appellant was continuing to complain of pain in her lower-back and right-mid-back areas. Dr. Hilborn's report from that visit stated that he thought appellant had reached her maximum medical improvement, and that, because she did not appear to be benefitting from the course of physical therapy, he would arrange for her to be seen by Dr. Berry Green for a functional capacity evaluation and an impairment rating. Dr. Hilborn's notes also stated that he planned to see appellant following the completion of that evaluation. The appointment with Dr. Green was scheduled for August 8, 2000.

Appellant was unhappy about being sent to Dr. Green for the functional capacity evaluation and impairment rating and contacted Ms. Ledbetter regarding her complaints of continuing pain. Appellant never saw Dr. Green because Ms. Ledbetter intervened, canceled the appointment, and scheduled an appointment for her to instead be seen by Dr. BruceSafman on July 20, 2000. There is no evidence in the record that the Commission authorized, sanctioned, or entered a subsequent change-of-treating-physician order at that time. Following his examination, Dr. Safman's diagnosis related to the compensable injury was lumbosacral and right sacroiliac strain, right posterior thoracic strain, levator scapulae tendonitis, and left upper trapezius strain. His July 20, 2000 report concluded that a functional capacity evaluation and an impairment rating were premature, and he recommended that she continue conservative treatment to include medication and a twenty-pound-lifting restriction on appellant's employment duties. Appellant continued to see Dr. Safman, and her treatment, including various medications, over the following two years was paid for by appellees. A September 20, 2001 report stated that appellant's complaints included cervical and lumbar strain and upper trapezius strain, for which three trigger-point injections were performed. Additionally, appellant received a trigger-point injection in the paravertebral musculature just to the right of the lower thoracic spine on November 15, 2001.

After seeing appellant on January 17, 2002, Dr. Safman stated in his report that her chronic lumbar strain had been exacerbated by physical activity at work, and he noted her unwillingness to seek alternate employment. He ordered another MRI, which was performed on January 30, 2002. The results of that MRI showed evidence of early intervertebral disc degeneration at L5-S1 associated with small central posterior prolapse of nucleus pulposus, which caused mild ventral theca sac encroachment, as well as a small tear in annulus fibrosis observed at same location. The final report from Dr. Safman was dated June 20, 2002, and it indicated changes in medications and a comment that appellant could be reassessed in one month. Appellant testified that she did see Dr. Safman in July 2002 for that follow-up appointment and that she was discharged from his care during that visit because he had no other treatment to offer her.

Despite being discharged from Dr. Safman's care, appellant maintains that she continued to have lower back pain and other symptoms, such as numbness and tingling in her leg, hip, and foot, related to her February 10, 2000 accident. Accordingly, she scheduled, and personally paid $250 for, an appointment with another neurosurgeon, Dr. Jim Moore, on August 20, 2002. Subsequent to that evaluation, Dr. Moore noted the presence of some spasms of the lumbar paraspinous muscles and diagnosed lumbar radiculitis and lumbosacral sprain/strain. Dr. Moore's August 20, 2002 report recommended an EMG/NCV nerve-conduction study, possible LESI, and potential candidacy for selected nerve blocks. It is this additional treatment that is the basis for appellant's appeal.

The administrative law judge (ALJ) found that appellant was entitled to the additional treatment recommended by Dr. Moore, despite appellees' arguments that she had received all the reasonable and necessary medical treatment to which she was entitled and that she had already been granted her one-time change of treating physician. Appellees appealed the ALJ's decision to the full Commission, and the Commission reversed the findings of the ALJ. Appellant's sole point on appeal is that the Commission erred in determining that she was not entitled to additional medical treatment.

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. Patchell v. Wal-Mart Stores, Inc., __ Ark. App. __, __ S.W.3d __ (May 19, 2004). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a 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).

Appellant argues that she should be allowed to seek the additional treatment that was recommended by Dr. Moore and that appellees should be estopped from preventing that treatment because it was their actions, specifically the actions of their nurse/case manager Ms. Ledbetter, that removed appellant from the care of Dr. Hilborn. While appellant concedes that when medical testimony is conflicting, the resolution of the conflict is a question of fact for the Commission, see Patchell, supra, she asserts that the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Appellant contends that the records from both Drs. Hilborn and Moore reflect that additional testing and treatment are necessary for the treatment of her compensable injury pursuant to Ark. Code Ann. § 11-9-508(a). Appellant recognizes that it is her burden of proof to show by a preponderance of the evidence that the requested medical treatment is reasonable and necessary, see Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003), but she contends that those medical records provide that proof and that only appellees' hand-picked physician, Dr. Safman, disagrees.

It is possible for a claimant to be entitled to ongoing medical treatment after the healing period has ended, if that treatment is geared toward the management of the claimant's injury. See Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). Appellant also cites Pennington v. Gene Cosby Floor & Carpet, 51 Ark. App. 128, 911 S.W.2d 600 (1995), regarding her discussion of "referrals" versus "changes of physician." She claims that appellees made such a "referral" to Dr. Safman, although they had no authority to do so. Appellant asks that we treat appellees' action of rerouting her to Dr. Safman as a controversion of her claim for additional treatment and conclude that the change-of-physician rules do not apply in this matter. She asks that she be free to seek the additional medical care proposed by Dr. Moore and that we require appellees to cover the cost of that treatment pursuant to their responsibility under Ark. Code Ann. § 11-9-508.

Appellees argue that appellant fails to acknowledge that in his last report, Dr. Hilborn declared her to be at maximum medical improvement and that the only additional "care and testing" recommended by him was a functional capacity assessment and impairment rating from Dr. Green. That evaluation would not have been done to advance the cause of healing, but rather would have provided results upon which to issue an impairment rating. Appellees maintain that at that point, although appellant had not been officially released by Dr. Hilborn, their responsibility would have ended, except perhaps to cover the cost of Dr. Green's evaluation. Instead, they did more than what was required and assisted appellant with obtaining an evaluation with a pain specialist, Dr. Safman. Additionally, appellees covered the cost of appellant's treatment with Dr. Safman for almost two additional years. It was only after that treatment had been completed that they refused to pay for more treatment from yet another doctor.

It is undisputed that appellant received a change of treating physician when she was directed to Dr. Hilborn, and an order was issued by the Commission to that effect. She received testing, medication, and therapy for a considerable length of time from multipledoctors, and while it is not clear exactly how the transfer to Dr. Safman's care occurred, there is evidence to support the Commission's conclusion that it was based on appellant's dissatisfaction with Dr. Hilborn's conclusion that she was at maximum medical improvement and her request for additional care. As such, the estoppel argument, which was first raised by the ALJ, is without merit. Dr. Hilborn completed his treatment of appellant and referred her to Dr. Green for a final functional capacity evaluation and the issuance of an impairment rating. He did not state that additional "treatment" was necessary regarding the compensable injury. Appellees then allowed, and paid for, two more years of additional treatment with Dr. Safman. By her own testimony, appellant admits that she was discharged from Dr. Safman's care in July 2002 because he had no other treatment to offer her. We find that there is substantial evidence to support the Commission's finding that appellees' responsibility ended with appellant's discharge from Dr. Safman's care.

Affirmed.

Pittman, C.J., and Vaught, J., agree.