Haney v. Smith, Doyle & Winters & Continental Insurance

James R. Cooper, Judge. The appellant in this workers’ compensation case sustained a compensable injury in the course of his employment with the appellee Smith, Doyle & Winters Construction Company on August 7, 1986. The appellant chose Dr. Swain, a chiropractor, as his treating physician. The claim was initially accepted as compensable and payment for chiropractic treatments was made from the time of the injury through July 28, 1989. However, after July 28, 1989, the appellee insurance carrier refused to pay for any additional chiropractic treatments and requested that the appellant be referred to Dr. Hartmann, an orthopedic surgeon. Dr. Hartmann examined the appellant on March 20, 1991; on March 21, 1991, Dr. Hartmann prepared a written report detailing the results of his examination and expressing his opinion that the appellant’s condition was stable and no orthopedic treatment was necessary at that time, although he indicated that further procedures might be considered if the appellant’s symptoms were exacerbated. After a hearing on the appellant’s claim that the appellees should be liable for chiropractic treatment rendered subsequent to July 28, 1989, the Commission found that chiropractic treatment provided subsequent to that date was unreasonable and unnecessary. From that decision, comes this appeal. For reversal, the appellant contends that the Workers’ Compensation Commission erred in finding that chiropractic treatment rendered subsequent to July 28, 1989, was unreasonable and unnecessary. We affirm as modified and remand. At the hearing, there was evidence that the appellant injured his back lifting some steps while performing construction work in the course of his employment with the appellee construction company. On the recommendation of a relative, the appellant sought treatment from a chiropractor. He stated that the treatments gave him relief and enabled him to continue doing construction work. Dr. Hartmann testified that he believed that the appellant suffered from a herniated disc which the chiropractic physician had misdiagnosed as a back strain. Dr. Hartmann stated that, had he been treating the appellant, he would have given him physical therapy for only a few weeks, with rest and medication prescribed for subsequent flare-ups. In reviewing decisions of the Arkansas Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we uphold those findings if there is substantial evidence to support them. Where, as here, the Commission has denied a claim because of failure to show entitlement to benefits, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). It has been held that, when the medical evidence is conflicting, the resolution of that conflict is a question for the Commission. See Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987). In the case at bar, Dr. Hartmann stated that he did not believe that chiropractic treatment was necessary for the appellant’s condition for five years after the appellant’s compensable injury. The Commission found that Dr. Hartmann’s opinion was entitled to great weight. Consequently, we affirm the Commission’s finding that further chiropractic treatments were not reasonably necessary with respect to treatments rendered subsequent to Dr. Hartmann’s letter of March 21, 1991, in which he expressed his opinion that the appellant’s condition was stable and that no further treatment was required at that time. However, we modify the Commission’s decision with regard to benefits for chiropractic treatments rendered prior to Dr. Hartmann’s letter of March 21, 1991. The Arkansas General Assembly, in Act 444 of 1983, specifically permitted an injured employee to choose either a medical or chiropractic physician. This portion of the Act is now codified at Ark. Code Ann. § 11-9-514(2) (1987). We think that the legislative intent was to provide for an alternative form of treatment as an alternative to treatment by a medical doctor. The clear implication of the Commission’s ruling in the case at bar is that a claimant must accurately assess his own condition to determine which of the competing schools of treatment is proper in his case, and will be denied benefits for those treatments if his decision is later determined by medical experts to have been incorrect. We do not think that the legislature so intended in enacting Act 444 of 1983. In the case at bar, after initially treating the claim as compensable and providing benefits for treatments, the appellee insurance company stopped payment of benefits on July 28, 1989, and requested an independent medical examination which was not performed until almost two years later, on March 20, 1991. Although the appellant did not appeal from that portion of the order appointing Dr. Hartmann as his treating physician, the very fact that a treating physician was appointed indicates that the appellant required medical treatment up to and after the time of the hearing in this case. Furthermore, no witness, including Dr. Hartmann, testified that the treatments rendered subsequent to July 28, 1989, were unreasonable and unnecessary.1 Regardless of whether the appellees assumed the burden of proving that the chiropractic treatments were not reasonable and necessary, or whether that burden remained on the appellant, we hold that fair-minded persons could not conclude that the treatments provided between the appellees’ request for an independent examination and the completion of that examination were not reasonable and necessary, and that charges for treatments provided during that interim period are therefore to be borne by the appellees. Consequently, we remand to the Commission for the entry of an order consistent with this opinion. Affirmed as modified and remanded. Robbins and Mayfield, JJ., agree. Rogers, J., concurs. Jennings, C.J., and Pittman, J„ dissent. Footnotes [1] Dr. Hartmann characterized chiropractic treatment as the equivalent of physical therapy, and testified that he would not continue physical therapy for five years, but would instead allow only a few weeks of physical therapy and would prescribe medication for the treatment of subsequent flare-ups. We regard this testimony as a mere description of the difference between medical and chiropractic treatment which cannot reasonably be regarded as evidence that the chiropractic treatments administered in the case at bar were not reasonable and necessary, especially in light of the clear legislative intent to afford injured workers a chiropractic alternative to medical treatment in Act 444 of 1983.