Pennington v. Gene Cosby Floor & Carpet

Judith Rogers, Judge. This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision. The ALJ found that appellant’s claim for additional benefits was barred by the statute of limitations. On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision. We disagree and affirm. The record reveals that appellant suffered a compensable injury on September 18, 1990. Temporary total disability benefits were paid until December 6, 1991. Appellant had been assessed a five percent permanent partial impairment rating that was paid in full on January 28, 1992. On June 23, 1992, appellant visited Dr. Jay Lipke, who was not his treating physician. Appellee’s carrier, Cigna Insurance, refused to pay for this treatment and was never billed for Dr. Lipke’s treatment. On April 6, 1993, appellant filed a claim for additional benefits. Appellee contested the claim on the basis that the statute of limitations barred appellant’s claim. Arkansas Code Annotated § ll-9-702(b) (Repl. 1993) provides: (b) Time for Filing for Additional Compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater. Appellant argues on appeal that Dr. Jay Lipke’s treatment on June 23, 1992, tolled the statute of limitations, and that consequently, his request for additional benefits on April 6,1993, was within the one year statutory period. In support of his position, appellant specifically contends that a nurse who worked for his treating physician referred him to Dr. Lipke, constituting a valid referral. We disagree. Arkansas Code Annotated § 11-9-514(a)(1) (Repl. 1993) provides: If the employee selects a physician, the commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying a change. The Commission’s authority to characterize a change of physician as a referral has its origin in the Commission’s own Rule 23, which authorizes the Commission to permit deviation from the Commission’s rule when compliance is impossible or impractical. Patrick v. Arkansas Oak Flooring Co., 39 Ark. App. 34, 833 S.W.2d 740 (1992). We held in Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985), that a referral had occurred where the evidence showed that the claimant’s treating physician had referred her to a psychiatrist for specialized treatment. In White v. Lair Oil Co., 20 Ark. App. 136, 725 S.W.2d 10 (1987), we held that a change of physician had occurred when the claimant’s treating physician refused to see him when emergency services were required. We concluded that this refusal effectively released the claimant from his care and that the claimant’s family physician became claimant’s treating physician. Also, in the case of TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991), we found that a referral occurred when the claimant had moved to Oklahoma, and her treating physician referred her to a physician in Oklahoma. In the above cases, the claimants were referred by their treating physicians or emergency circumstances required a referral for treatment. None of those situations exist in this case. Here, the record reveals that on May 26, 1992, Janna Craig from Cigna Insurance wrote to appellant regarding his claim. She stated: I am writing you with regard to your workers’ compensation claim. You need to return to the doctor for final medical evaluation, so that we will know if you have received all the benefits you are entitled. At one time Attorney Steve Laney informed me you wanted a change of physician. To date I have not received any written confirmation of that request or any written confirmation that Mr. Laney represents you in this matter. Please advise me if you desire a change of physician. If not, please return to your previous doctor. Appellant testified that he attempted to see Dr. Amal O’Laimey, his authorized treating physician, on June 20, 1992. Appellant said that Dr. O’Laimey was not available so the nurse referred him to Dr. Lipke. Appellant admitted that he did not try to reschedule a time to see Dr. O’Laimey. Interestingly, the record also indicates that appellant was the only one to testify that the nurse at Dr. O’Laimey’s office referred him to Dr. Lipke. Appellant concluded that he saw Dr. Lipke on June 23, 1992, which was three days after he sought treatment by Dr. O’Laimey. The record indicates that Dr. Lipke’s office contacted Ms. Craig concerning the bill. Ms. Craig testified, however, that she refused to authorize payment for Dr. Lipke’s treatment. She said that she sent the Commission’s Form A-ll to appellant’s attorney on October 12, 1992, and received no response. Ms. Craig testified further that she never received a bill from appellant or from Dr. Lipke’s office. She also stated that she never received a referral slip showing that Dr. O’Laimey’s office had referred appellant to Dr. Lipke. The record contains one letter from Dr. Lipke’s office which does not mention that appellant was referred from Dr. O’Laimey’s office. Whether treatment is a result of a “referral” rather than a “change of physician” is a factual determination to be made by the Commission. Patrick v. Arkansas Oak Flooring Co., supra. When the Commission’s findings of fact are challenged on appeal, we affirm if they are supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We do not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Id. The Commission found that appellant received unauthorized treatment from Dr. Lipke. After reviewing the record, we cannot say that there is no substantial evidence to support the Commission’s findings that appellant’s treatment by Dr. Lipke was not based on a valid referral and that appellant’s claim was barred by the statute of limitations. Affirmed. Mayfield, J. and Bullion, S.J., dissent.