BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G HOUMPHAENG DAOSAENG, EMPLOYEE CLAIMANT OK FOODS, INC., SELF-INSURED EMPLOYER

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G HOUMPHAENG DAOSAENG, EMPLOYEE CLAIMANT OK FOODS, INC., SELF-INSURED EMPLOYER RESPONDENT OPINION FILED NOVEMBER 12, 2015 Hearing before ADMINISTRATIVE LAW JUDGE AMY GRIMES, in Fort Smith, Sebastian County, Arkansas. Claimant represented by DOUGLAS M. CARSON, Attorney, Fort Smith, Arkansas. Respondent represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. STATEMENT OF THE CASE On August 18, 2015, the above captioned claim came before the Workers Compensation Commission in Fort Smith, Arkansas, for a hearing. A pre hearing conference was conducted on March 11, 2014, and a pre hearing order filed that same date. A copy of the pre hearing order has been marked as Commission s Exhibit No. 1 and with modification and no objection is made part of the record. The parties agreed to the following stipulations: 1. The Arkansas Workers' Compensation Commission has jurisdiction of this case. 2. The relationship of employee/self-insured employer existed on June 14, The date the compensable injury occurred was June 14, The rates of compensation are $ for temporary total disability and $ for permanent partial disability. The issues to be litigated are limited to the following: 1. Claimant s entitlement to temporary total disability benefits. 2. Claimant s entitlement to additional medical treatment in the form of a neurologist and prior treatment provided by Dr. Von Phomakay after discharge by respondent s

2 Daosaeng - G physician. 3. Attorney s fee. The claimant contends that she suffered a compensable injury on July 14, Claimant is entitled to temporary total disability benefits since the last date of payment of such benefits by respondent or the last date she performed employment services for respondent, whichever is later. Claimant contends that she is entitled to additional medical treatment in the form of a neurologist, and also contends she is entitled to medical treatment provided by Dr. Phomakay after discharge by respondent s physician. Claimant reserves all other issues, including an impairment rating. The respondent contends claimant is not within her healing period and that she has not and does not suffer a total incapacity to earn wages. In the alternative, respondent contends that A.C.A operates to bar claimant s entitlement to temporary total disability after July 5, Respondent contends it has never controverted medical treatment. Dr. Phomakay is not an authorized physician and it is inappropriate for the Commission to award a retroactive change of physician. Additionally, pursuant to Commission policies, it is inappropriate for a law judge to award a change of physician. In the alternative, treatment by Dr. Von Phomakay or a neurologist is not necessary or related to the claimant s compensable injury. The above stipulations are hereby accepted as fact. From a review of the record as a whole to include medical reports, documents, and having heard testimony and observed demeanor of all witnesses, the following decision is rendered. The claimant has not proven by a preponderance of the evidence that she is entitled to temporary total disability. Furthermore, she has not proven by a preponderance of the evidence that the medical treatment provided by Dr. Phomakay was authorized or reasonable and necessary for the treatment of her admittedly compensable injury. The claimant has also failed to prove that the recommendation for a neurologist is reasonable and necessary for the

3 Daosaeng - G treatment of her admittedly compensable injury. The claimant s attorney is not entitled to an attorney fee. FACTUAL BACKGROUND The claimant is this matter is a 70-year-old female. She is a native of Laos who immigrated to the United States in 1987 and became a citizen in The claimant began her employment with the respondent in The claimant suffered an admittedly compensable injury on June 14, She injured her right Achilles heel after a slip and fall while working on the deboning line for the respondent. The claimant saw the plant nurse after the accident and was sent to the company doctor, Dr. Holder, for treatment in Dr. Holder referred the claimant to Dr. Evans who treated the claimant until he released her in June of The claimant was released with no permanent restrictions. The claimant stated that once she was released by Dr. Evans she continued to have pain associated with her right heel injury. She added that at that point (post release), she went to Dr. Phomakay for treatment. The claimant has submitted medical records into evidence. Those records reflect that the claimant first saw Dr. Phomakay in January of 2012, some six months prior to her release by Dr. Evans. She stated that Dr. Phomakay was her family doctor. At that visit, Dr. Phomakay referred the claimant to a pain clinic. The claimant also saw Dr. Holder again in January of Dr. Holder noted that he no longer needed to see the claimant and returned her to work on permanent restricted duty. The medical records in evidence also reflect that Dr. Evans released the claimant with no permanent restrictions in June of 2012 and confirmed his opinions on July 3, 2012 by handwritten note. The claimant continued to see Dr. Phomakay in 2012, 2013, and In August of 2014 the claimant saw Dr. Phomakay, at which time he noted that he could do no more for her and recommended that she see a neurologist or orthopedist for chronic pain. The claimant testified that she was unable to return to work after her injury and that she continued to have issues with her injury for

4 Daosaeng - G some four years afterwards. The claimant no longer works for the respondent. The respondents have submitted a letter dated July 5, 2012 in which the claimant was offered a job after her release by Dr. Evans. The claimant testified that she remembered receiving the letter, but stated that she was afraid to return to work with her restrictions. She added that she was afraid that she might be re-injured. The claimant did not accept the job offer from the respondent. The claimant is now asking for temporary total disability and medical treatment. DISCUSSION The Commission has first been asked to determine if the claimant is entitled to temporary total disability in this matter. The claimant suffered an admittedly compensable injury on June 14, She testified that she has been unable to work since the time of her compensable injury. The medical evidence shows that the claimant was treated and released to light duty and eventually to permanent restricted duty. The claimant has suffered a scheduled injury to her right Achilles heel/foot. Under Arkansas Code Annotated (a), an employee who suffers a scheduled injury is to receive temporary total disability or temporary partial disability benefits during his or her healing period or until he or she returns to work, regardless of whether she has demonstrated that she is actually incapacitated from earning wages, see also, Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822(2001). Here, under the statutory authority and under the Wheeler case, the claimant would be entitled to indemnity benefits. However, the evidence in this case reveals that this claimant was offered a job upon her release by the respondent. The claimant testified that she was aware of a letter offering her a job. She stated, on cross examination, that she did not accept the job offer. She added that she was afraid to return to work, fearing re-injury. The claimant never returned to work for the respondent. A.C.A states that if any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the

5 Daosaeng - G continuance of the refusal, unless in the opinion of the Workers Compensation Commission, the refusal is justified. Here, the claimant was offered suitable employment. She was released without restrictions. She simply decided to reject the offer of employment and not return to work. There is nothing in evidence to suggest that her refusal was justified. The fact that she stated she had fears of re-injury does not justify her refusal to accept the offer and return to work. Arkansas courts have addressed a claimant s unjustified refusal to return to work. In Neal v. Sparks Reg l Med. Ctr., 104 Ark. App. 97(2008), the claimant was denied benefits for refusing light duty work without justification. The claimant has failed to prove by a preponderance of the evidence that she is entitled to temporary total disability related to her admittedly compensable injury of June 14, The Commission has next been asked to determine if the claimant is entitled to a neurologist as recommended by Dr. Phomakay. The Commission has also been asked to determine if the claimant is entitled to prior treatment by Dr. Phomakay after release by Dr. Evans. A.C.A (4)(F)(i) states: When an employee is determined to have a compensable injury the employee is entitled to medical and temporary disability as provided by this chapter. Once it is settled that the claimant has a compensable injury the question of medical services must be determined by looking at the facts in question in determining if the medical services are reasonably necessary for the treatment of the claimant s injury. A.C.A (a) requires that: An employer shall promptly provide for an injured employee such medical, surgical, chiropractic, optometric, podiatric, nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aides, and other apparatuses may be reasonably necessary in connection with the injury received by the employee. What constitutes reasonable and necessary medical treatment under A.C.A (a) is a fact question for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W. 2d 750

6 Daosaeng - G (1984). Here, the claimant testified that she saw Dr. Phomakay after release from Dr. Evans. She added that she was in continued pain that caused her to make an appointment with Dr. Phomakay. However, the medical evidence submitted reflects that the claimant began seeing Dr. Phomakay some six months before she was released by Dr. Evans. Clearly, this claimant decided to begin seeing her family doctor; however, Dr. Phomakay was not authorized to treat the claimant for her workers compensation injury. She simply saw her family doctor during the course of treatment with her authorized physician. Dr. Phomakay, indeed, did continue to treat the claimant after her release by Dr. Evans, but that treatment too was unauthorized. Furthermore, Dr. Evans released the claimant in June of 2012 and there is nothing in the record to support a need for further treatment after the claimant s release. Dr. Evans noted that the claimant was well past MMI. The claimant testified she never made any attempt to return to Dr. Evans or Dr. Holder, either after she was released or denied treatment. The claimant has failed to prove that the treatment provided by Dr. Phomakay at any time was authorized or was reasonable and necessary for the treatment of her admittedly compensable injury of June 14, Additionally, Dr. Phomakay recommended that the claimant be referred to a neurologist or an orthopedist for further evaluation. Clearly, that recommendation was not given by an authorized treating physician. Furthermore, there is nothing in the record to suggest that such a recommendation is necessary. Dr. Evans has released the claimant without restrictions to return to work. He noted that she was well past MMI. Furthermore, Dr. Phomakay s recommendation was made some four years after the claimant s injury and he noted that he could do no more for the claimant. Dr. Phomakay gave no opinion related to why the claimant needs further evaluation. He simply states that he can do no more for the claimant and notes her complaints of chronic pain in the heel area. The claimant has failed to prove by a preponderance of the evidence that the recommendation for referral to a neurologist is reasonable and necessary for the treatment of her admittedly compensable injury of June 14, 2010.

7 Daosaeng - G FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The claimant has failed to prove by a preponderance that she is entitled to temporary total disability related to her admittedly compensable injury of June 14, The claimant has also failed to prove that any treatment by Dr. Phomakay was authorized. She has also failed to prove that the treatment provided by Dr. Phomakay as well as his recommendation for a referral to a neurologist is reasonable and necessary for the treatment of her admittedly compensable injury from June 14, The claimant s attorney is not entitled to an attorney fee based on the above findings. ORDER Based on the foregoing findings and conclusions, I have no choice but to deny and dismiss this claim in its entirety. IT IS SO ORDERED. AMY GRIMES ADMINISTRATIVE LAW JUDGE

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