                                Cite as 2013 Ark. App. 593

                ARKANSAS COURT OF APPEALS
                                      DIVISION I
                                     No. CV-13-540


PATSY ANN O’GUINN                               Opinion Delivered   October 23, 2013
                              APPELLANT
                                                APPEAL FROM THE ARKANSAS
V.                                              WORKERS’ COMPENSATION
                                                COMMISSION
                                                [NO. F904867]
LITTLE RIVER MEMORIAL
HOSPITAL and RISK MANAGEMENT                    AFFIRMED IN PART; REVERSED IN
RESOURCES                                       PART
                      APPELLEES



                              RITA W. GRUBER, Judge

       This is a workers’ compensation case. The primary issue involves a claimant’s request

for a change of physician because of the death of the physician who had been treating her

pursuant to her one-time statutory right to change from her first treating physician. Patsy

Ann O’Guinn, a nurse’s aide who provided home health care for Little River Memorial

Hospital, sustained a compensable injury to her lower back while attempting to move a bed

on May 29, 2009. She was treated by orthopedic surgeon Dr. Kenneth Rosenzweig from

June 2009 until February 2010. On June 30, 2010, Ms. O’Guinn was granted a change of

physicians to Dr. Harold Chakales, another orthopedic surgeon. Dr. Chakales treated her

from July 21, 2010, through November 30, 2011. On January 24, 2012, Ms. Guinn

petitioned the Arkansas Workers’ Compensation Commission for a change of physician to Dr.

Vestal Smith because Dr. Chakales had died. The Medical Cost Containment Division, citing

the Commission’s decision Keys v. Wal-Mart, filed February 16, 2012, (F613738), declined
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to enter a change-of-physician order absent a decision by an administrative law judge that Ms.

O’Guinn was entitled to receive additional benefits.1

       On October 4, 2012, the law judge conducted a hearing to determine whether Ms.

O’Guinn had proved that she was entitled to permanent partial-disability benefits and

additional medical treatment, including appointment of another physician as a result of Dr.

Chakales’s death. The law judge issued a written decision denying both claims, and the

Commission adopted and affirmed the decision of the law judge.

       Ms. O’Guinn appeals the Commission’s decision, contending that it is not supported

by substantial evidence, assumes facts not in evidence, and is based on erroneous conclusions

of law. We affirm the denial of her claim for permanent partial impairment. We reverse the

denial of her claim for additional medical treatment, and we remand to the Commission for

entry of the change-of-physician order that Ms. O’Guinn requested.

           The employer shall promptly provide such medical services to an injured employee

as may be reasonably necessary in connection with the injury received by the employee. Ark.

Code Ann. § 11-9-508(a) (Repl. 2012). A claimant who did not select the initial physician

is given an absolute statutory right to a one-time change of physician. Ark. Code Ann. § 11-

9-514(a)(3)(A)(ii) (Repl. 2012); Collins v. Lennox Indus., 77 Ark. App. 303, 302, 75 S.W.3d

204, 205 (2002). “The employer’s denial of the one-time change of physician as a matter of

law fails to fulfill the obligation imposed by section 11-9-508.” Id. Under Collins, the two


       1
       On Oct. 10, 2012, this court handed down our decision Wal-Mart Associates, Inc. v.
Keys, 2012 Ark. App. 559, --- S.W.3d ----.


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statutes are read in harmony: where the employee has exercised her absolute, statutory right

to a one-time change of physician under section 11-9-514(a)(3)(A)(ii), the employer must pay

for the initial visit to the new physician in order to fulfill its obligation to provide adequate

medical services under 11-9-508. Wal–Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 605, 120

S.W.3d 153, 156 (2003).              “Without an initial visit and report from [a]

one-time-change-of-physician doctor, there is simply no way to determine whether any

additional treatment proposed by that physician would be reasonably necessary.” Id.

       The evidence before the Commission in the present case included Ms. O’Guinn’s

medical records, her testimony, and various written letters and documents. In a letter of

February 26, 2010, Dr. Rosenzweig wrote that Ms. O’Guinn had been placed on maximum

medical improvement in October of 2009 but continued to have ongoing complaints and had

requested ongoing treatment. He wrote in a letter of March 20, 2010, that it was difficult to

offer an opinion regarding her injuries, treatment, and response to treatment because of her

inconsistency and unreliability on a functional capacity exam of March 3, 2010. Dr. Chakales

wrote in an October 19, 2011 office note that Ms. O’Guinn had not had an MRI since 2009

and that he would schedule one. On her last office visit, November 30, 2011, he wrote: “We

wanted to obtain an MRI, but it has not been approved. I will see her in one month. She

needs no pain medication.”

       Ms. O’Guinn testified that she never received the MRI Dr. Chakales had

recommended; that at the time of his death, she was still experiencing muscle tightness and

“burning”; that since then, her back had worsened because she had not had “any” medication;


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but that she had managed her pain with over-the-counter medication. She asked to be

granted the change of physician to Dr. Smith she had requested eight months earlier “so

maybe he can figure out what my problem is and help it or tell me that he can’t help me with

it. . . . I am saying I should get the MRI.”

       In a two-step analysis, the Commission first found that Ms. O’Guinn failed to establish

that any additional medical treatment was reasonably necessary for treatment of her

compensable injury. Consequently, the Commission found that her request for another

physician to provide additional treatment was moot:

       [T]he circumstances in the present case [are] distinguishable from Brown and Collins,
       because in the present case, the claimant received her statutory one-time change of
       physician to Dr. Chakales in 2010. The respondents paid for the claimant’s first visit
       to Dr. Chakales in 2010, and . . . continued to pay for Dr. Chakales’ treatment until
       his death in late 2011. The general rule is that the employer has the right to controvert
       an injured workers’ right to additional benefits at any time. It appears . . . that, when
       Mr. Giles [Ms. O’Guinn’s attorney] requested a substituted change of physician after Dr.
       Chakales died, the respondents timely refused to agree on the grounds that no additional
       treatment would be reasonably necessary in this case.

(Emphasis added.)

       On the issue of entitlement to additional medical treatment and permanent

impairment, the Commission wrote:

       The claimant has failed to establish by a preponderance of the credible evidence that
       any additional medical treatment will be reasonably necessary for her 2009
       compensable injury. The claimant’s request for a substituted change of physician is
       therefore denied.
                                             ....

       [N]o physician has assigned Ms. O’Guinn a permanent impairment rating. While Ms.
       O’Guinn’s lumbar MRI did indicate one annular tear, and Dr. Chakales did on one
       occasion document the presence of muscle spasms in her lumbar spine, I note that Ms.
       O’Guinn admittedly had some degree of pre-existing back symptoms. In light of Ms.

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       O’Guinn’s admitted pre-existing difficulties with her back when she lifted, and the
       damage to Ms. O’Guinn’s credibility caused by her inconsistent and unreliable effort
       during functional capacity evaluation testing, . . . Ms. O’Guinn has failed to establish
       through her own testimony or by any other means, that either her annular tear on
       MRI or her muscle spasms documented on one occasion by Dr. Chakales support the
       existence of a permanent impairment causally related to her injury sustained on May
       29, 2009.

1. Claim for Additional Medical Treatment and Change of Physician

       Ms. O’Guinn’s right to continued treatment was not controverted until she was left

without a treating physician at her change-of-physician doctor’s death and sought another

change of physician. Under Collins and Brown, supra, an employer cannot avoid entry of or

responsibility for a change-of-physician order by attempting to present evidence that

additional treatment will no longer be necessary for the work-related injury.

       In Wal-Mart Associates, Inc. v. Keys, 2012 Ark. App. 559, --- S.W.3d ----, Wal-Mart

accepted an eleven-percent permanent anatomical-impairment rating assigned by Ms. Key’s

first treating physician, Dr. James Blankenship. Ms. Keys was granted her one-time statutory

change of physician to Dr. Chakales, whom she saw it an initial office visit of August 5, 2009.

Dr. Chakales diagnosed Ms. Keys with chronic pain syndrome following a lumbar

laminectomy and fusion; he prescribed Darvocet and planned that she return in three weeks.

Wal–Mart paid for this initial visit to Dr. Chakales but controverted any additional treatment.

Ms. Keys received unauthorized treatment from Dr. James Hawk in July, August, September,

and October 2010 and January 2011. Ms. Keys’s attorney stated in a March 2011 hearing

before the administrative law judge that Keys saw Dr. Hawk without a referral from Dr.

Chakales because Dr. Chakales’s health was deteriorating. The decision of the law judge was


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appealed to the Commission, which noted in its February 2012 decision that Dr. Chakales had

died on December 13, 2011—subsequent to the hearing before the law judge and after the

parties filed briefs with the Commission. The Commission held:

       Because the doctor to whom the claimant was granted a change of physician has died,
       the change of physician order has effectively been nullified. Accordingly, the Full
       Commission grants the claimant a change of physician to Dr. Hawk as if the claimant’s
       first change of physician never occurred.

       The Commission’s decision was appealed to this court, and we affirmed. We found

that because of her physician’s deterioration and ultimate death, Ms. Keys had not received

the treatment that she was statutorily entitled to receive, and we agreed with the

Commission’s conclusion that she received treatment from Dr. Hawk only because Dr.

Chakales was unable to perform these duties.

       In the present case, we agree with Ms. O’Guinn that under our decisions in Collins,

supra; Brown, supra; and Keys, supra, the Commission erred as a matter of law by not granting

her a change of physician after her initial change-of-physician doctor died. Dr. Chakales’s

death effectively nullified the initial change-of-physician order, and Ms. O’Guinn was entitled

to a change of physician to Dr. Smith as if the first change of physician never occurred. We

reverse the Commission’s denial of Ms. O’Guinn’s request for a change of physician. We

remand to the Commission for a change-of-physician order to Dr. Smith.

2. Claim for Permanent Anatomical Impairment

       Permanent benefits shall be awarded only upon a determination that the compensable

injury was the major cause of the disability or impairment. Ark. Code Ann. § 11-9-

102(4)(F)(ii)(a) (Repl. 2012). Permanent impairment is permanent functional or anatomical

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loss remaining after the healing period has ended. Excelsior Hotel v. Squires, 83 Ark. App. 26,

115 S.W.3d 823 (2003). If the compensable injury combines with a preexisting disease to

cause disability or a need for treatment, permanent benefits shall be payable for the resultant

condition only if the compensable injury is the major cause of the permanent disability or

need for treatment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(b) (Repl. 2012).

       Determination of the existence or extent of physical impairment shall be supported by

objective and measurable physical or mental findings; “objective findings” are findings that

cannot come under the voluntary control of the patient. Ark. Code Ann. §§ 11-9-

704(c)(1)(B) & 11-9-102(16)(A)(i) (Repl. 2012). In determining physical or anatomical

impairment, complaints of pain may not be considered.             Ark. Code Ann. § 11-9-

102(16)(A)(ii)(a).

       Ms. O’Guinn argues that her preexisting condition had no bearing on the

compensability of her claim; that no physician assigned an impairment rating; that, even if her

healing period ended “when Dr. Rosenzweig gave up,” she was under active treatment by

Dr. Chakales, who never declared her at maximum medical improvement and was

recommending an MRI; and that an annular tear noted by Dr. Rosenzweig required

application of the AMA Guide for Impairment.

       The Commission is authorized to decide which portions of the medical evidence to

credit and to translate this evidence into a finding of permanent impairment using the AMA

Guides, which it has adopted to be used in the assessment. Excelsior Hotel v. Squires, supra.

The Commission may assess its own impairment rating rather than rely solely on its


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determination of the validity of ratings assigned by physicians. Id. Credibility is a matter for

the Commission to determine. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d

709 (2006). Where the Commission denies a claim because of the employee’s failure to meet

her burden of proof, we affirm the Commission’s decision if it displays a substantial basis for

the denial of relief. Hamilton v. Gregory Trucking, 90 Ark. App. 248, 205 S.W.3d 181 (2005).

       Here, the Commission acknowledged that Ms. O’Guinn’s 2009 lumbar MRI indicated

an annular tear and that Dr. Chakales had once documented the presence of muscle spasms

in her lumbar spine. It noted that no physician had assigned Ms. O’Guinn a permanent

impairment rating and that she admittedly had some degree of preexisting back

symptomatology. It found that her credibility was damaged because of her inconsistent and

unreliable effort on the functional capacity evaluation. Therefore, the Commission concluded

that Ms. O’Guinn failed to establish through her own testimony or other means that either

the annular tear or muscle spasms supported the existence of a permanent impairment causally

related to her 2009 injury. Because the Commission’s decision displays a substantial basis for

denying Ms. O’Guinn’s claim for permanent partial impairment, we affirm on this issue.

       Affirmed in part; reversed in part.

       HARRISON, J., agrees.

       WHITEAKER, J., concurs.

       PHILLIP T. WHITEAKER, Judge, concurring. I agree with the majority that Ms.

O’Guinn is entitled to a change-of-physician order under these circumstances based on our

previous interpretation of section 11-9-514 in Walmart Associates, Inc. v. Keys, 2012 Ark.


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App. 559, ___ S.W.2d ___. I write separately solely to express my belief that the legislature

should consider revising the statute to clearly address the circumstances under which a

claimant who, through no fault of her own, is left without a physician after having

previously invoked her statutory entitlement to a one-time change of physician. I note that

the change-of-physician statute as currently written does not specifically address the situation

in which a physician dies during the treatment of a patient; nor does it clearly address the

possibility that a physician may retire, move, or have his or her privileges or license to

practice medicine revoked or suspended during the physician’s treatment of the claimant.

I believe that the determination of these issues is better left to legislative enactment, than

judicial interpretation.

       Moore, Giles & Matteson, LLP, by: Greg Giles, for appellant.

       Friday, Eldredge & Clark, LLP, by: Guy Alton Wade.




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