Fanning, 100219 ARWC, G701275

• Case Date: October 02, 2019
• Court: Kansas

ARTHUR FANNING, EMPLOYEE CLAIMANT WASTE MANAGEMENT, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, GALLAGHER-BASSET SERVICES, INSURANCE CARRIER TPA RESPONDENTS #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT#2 No. G701275 Arkansas Workers Compensation Before the Arkansas Workers' Compensation Commission October 2, 2019          Hearing before Administrative Law Judge, James D. Kennedy, on the 28^th day of August 2019, in Russellville, Arkansas.           Claimant is represented by Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas.           Respondent #1 is represented by Melissa Wood, Attorney at Law, Little Rock, Arkansas.           Respondent #2 is represented by David L. Pake, Attorney at Law, Little Rock, Arkansas.           JAMES D. KENNEDY, Administrative Law Judge.          STATEMENT OF THE CASE          A hearing was conducted on the 28^th day of August, 2019. Prior to the hearing, it was determined that the Pretrial Order needed to be modified based upon recent correspondence between the parties that significantly modified the answers to the Prehearing Questionnaires. After a discussion between the parties and the Commission, it was determined that the parties did in fact stipulate that the Arkansas Workers' Commission has jurisdiction of this matter and that there was an employee/employer relationship that existed on February 16, 2017, the date of the injury, and that the claim was accepted as compensable. The Claimant earned an average weekly wage of eight hundred and fifty dollars and four cents per week, ($850.04), sufficient for a TTD/PPD rate of five hundred sixty-seven dollars and four hundred and twenty-five dollars ($567.00/$425.00) per week and that the healing period ended no earlier than November 20, 2017.          The parties further agreed that the issues before the Commission on the date of the hearing were as follows:

1. Is the treatment by Doctor Edwards authorized as a referral or should a Change of Physician approval been obtained from the Commission.

2. Is the Claimant entitled to TTD from May 7^th of 2018, up to April 2^nd of 2019, plus any PPD and attorney fees.

3. If the treatment by Doctor Edwards is determined to not be authorized, then did the claimant receive the Arkansas AR-N form in such a manner that would affect the status of any change of physician that occurred without approval of the Commission.

         After a discussion with the representatives of the parties at the start of the hearing, the Respondents are not taking the position that the treatment by Doctor Edwards was not reasonable and necessary, but that Doctor Edwards wanted to charge a two thousand dollar ($2000.00) IME fee with an option to treat, when an IME had not been requested nor authorized, and since that could result in a situation where Doctor Edwards could say no to treatment, the respondents attempted to find an orthopedic surgeon who would treat without an IME and they were unsuccessful. The respondent's also contend that they direct care until a Change of Physician Order is obtained from the Commission and that did not occur.          The claimant's and respondent's both maintained the position that Doctor Patel was the claimant's treating physician, but the claimant contends that Doctor Patel made a referral to Doctor Edwards and consequently a Change of Physician Order was not required. Further, the claimant contends that if the treatment by Doctor Edwards is determined to not be authorized, then the applicable issue is did the claimant receive the AR-N form as required by the Arkansas Workers' Compensation Act. After the opening discussion in regard to the modified responses to the pre-hearing questionnaires, the parties were instructed to submit briefs 15 days from the date of the hearing. The submitted briefs are blue backed and attached to this opinion. Further, a copy of the Pre-hearing order was marked "Commission Exhibit 1" and made part of the record without objection. The Death and Permanent Disability Trust Fund deferred to the outcome of the litigation and waived it's right to attend the hearing.          The parties' contentions as originally set out in their respective responses to the Pre-hearing questionnaires are made a part of the record without objection, but it is noted that these contentions are highly modified as spelled out above. In addition, the Commission's Exhibit Four was admitted into record without objection. The letter was addressed to Carolyn Washington, the Clerk of the Commission, and it provided that Doctor Patel had referred the claimant to Doctor Edwards, who wanted to charge an IME to treat and provided that an IME had not been authorized, and that the IME was not reasonable and necessary. The sole witness consisted of Arthur Fanning, the claimant. From a review of the record as a whole, to include medical reports and other matters properly before the Commission, and having had an opportunity to observe the testimony and demeanor of the witness, the following findings of fact and conclusions of law are made in accordance with Ark. Code Ann. §11-9-704.          FINDINGS OF FACT AND CONCLUSIONS OF LAW          1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim.          2. That an employer/employee relationship existed on February 16, 2017, the date of the injury and that the claim was accepted as compensable.          3. The claimant earned an average weekly wage of $850.04, sufficient wages for a TTD/PPD rate of $567.00/$425.00 a week.          4. That the Claimant received the Arkansas Worker's Compensation AR-N Form by certified mail on June 4, 2018, which was signed for by the claimant's wife, with the claimant admitting that he was aware of the notice at that time. Consequently, the Change of Physician Rules became applicable at that time.          5. That Doctor Patel was the authorized treating physician of the claimant and he did not make a referral to Doctor Edwards, but the claimant elected to obtain treatment from Doctor Edwards. Due to the fact that the claimant had received the AR-N form and had not obtained a Change of Physician Order, the treatment by Doctor Edwards was not authorized, and consequently under the Arkansas Workers' Compensation law, the claimant is responsible for the cost of the treatment.          6. That claimant is entitled to TTD from May 7, 2018, to April 2, 2019, and his attorney is entitled to attorney fees pursuant to Ark. Code Ann. §11-9-715. This award shall bear interest at the legal rate pursuant to Ark. Code Ann. §11-9-809.          7. That the issue of PPD is premature and preserved for a future date.          8. If not already paid, the respondents are ordered to pay for the cost of the transcript forthwith.          REVIEW OF TESTIMONY AND EVIDENCE          The claimant testified that he was 64 at the time of the hearing and was born on May 5, 1955. He was injured while at work for the respondent on February 16, 2017, when he went to assist a mechanic who was struggling with what was called a "bib" for a truck. The "bib" is eight feet wide and four feet the other way and the claimant went to assist installing it on a truck. It is on top of the front-load trucks and it fell and knocked the claimant to the ground. (Tr. 10) The "bib" weighed approximately 200 pounds and caused the claimant to sustain injuries to his right leg and hip. The claimant admitted to having a previous surgery to the right hip and a hip replacement. The respondents provided medical treatment and the claimant ended up having surgery the next day. He continued to receive treatment and had a second surgery on March 27, 2017. After that date, treatment continued and he received an FCE and was released with some restrictions. The claimant further testified that he had been terminated by the Respondent prior to the FCE. (Tr. 11)          The Claimant testified during February of 2018, that he started having problems with his leg, and he requested that the Respondents send him back to Doctor Patel which they did. "I mean we tried to get back in to see Doctor Patel in February and we didn't make it back until May before...